IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 16TH JANUARY 2009 / 26TH POUSHA 1930 WP(C).No. 19883 of 2007(P) -------------------------------------- PETITIONER: ------------------- GEORGE K.JOHN, AGED 46 YEARS, S/O K.V. JOHN, PARAKKAL HOUSE,NEAR ARYAD SOUTH VILLAGE OFFICE, THATHAMPILLI P.O.,ALAPPUZHA DISTRICT, DEPUTY MANAGER, AUTO KAST LTD.,CHERTHALA NOW WORKING ON DEPUTATION AS PROJECT OFFICER, DISTRICT INTEGRATED RURAL ENERGY PROGRAMME(IREP) INDIRA JUNCTION, ALAPPUZHA. BY ADVS. SRI.C.S.MANU, SRI.S.K.PREMRAJ, SRI.ANOOP JOSEPH, SRI.ANOOP.V.NAIR, SRI.ABHILASH AKBAR. RESPONDENTS: ----------------------- 1. STEEL INDUSTRIALS KERALA LTD., REGD. OFFICE, MULAMKUNNATHUKAVU, SILK NAGAR, ATHANI P.O., THRISSUR, REPRESENTED BY ITS MANAGING DIRECTOR. 2. MANAGING DIRECTOR, STEEL INDUSTRIALS KERALA LTD., REGD. OFFICE, MULAMKUNNATHUKAVU, SILK NAGAR, ATHANI P.O., THRISSUR. 3. AUTOKAST LTD., S.N.PURAM P.O., CHERTHALA, REPRESENTED BY ITS MANAGING DIRECTOR. 4. MANAGING DIRECTOR, AUTOKAST LTD., S.N.PURAM P.O., CHERTHALA. R1 & R2 BY ADVS. SRI.B.S.KRISHNAN (SR.), SRI.K.ANAND, SMT.LATHA KRISHNAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.19883/2007-P: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE PROMOTION POLICY DTD. 28/06/99 ISSUED BY THE R.1. TO THE PETITIONER. EXT.P.2: COPY OF THE REPRESENTATION DTD. 13/06/2005 SUBMITTED BY THE PETITIONER TO THE R.4. EXT.P.3: COPY OF THE REPRESENTATION DTD. 23/03/2007 SUBMITTED TO RESPONDENTS 2 & 4 ON 24/03/2007. EXT.P.4: COPY OF THE REPLY BEARING NO. AKL/PER/137/045 DTD. 04/04/2007 ISSUED BY THE R.4. EXT.P.5; COPY OF THE ORDER NO. AKL/PER/137 DTD. 0/06/1989 ISSUED BY THE JOINT MANAGER (P&A), AUTOKAST LIMITED. EXT.P.6: COPY OF THE ORDER NO:AKL/PER/137 DTD. 25/09/1989 ISSUED BY MANAGING DIRECTOR, AUTOKAST LIMITED. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. prv. T.R.RAMACHANDRAN NAIR,J. ------------------------- W.P ( C) No.19883 of 2007 -------------------------- Dated this the 16th January,2009 J U D G M E N T Petitioner is seeking for a direction to the respondents to promote him to the post of Manager in an existing vacancy. Presently, the petitioner is working as a Deputy Manager. He joined service of the 1st respondent as an Engineering Trainee on 2.12.1985 and after securing promotions to various posts, he was posted as Assistant Manager in the year 1998 which stands re- designated as Deputy Manager. Accordingly, he is eligible to be considered for promotion as Manager in accordance with Exhibit-P1 which evidences the promotion policy adopted by the management. The petitioner had approached this Court earlier by filing WPC No.2493 of 2006 seeking for a direction to the respondents to promote him to the post of Manager. During the pendency of the writ petition he had filed Exhibit-P3 representation for the same relief. To the W.P ( C) No.19883 of 2007 2 above-said representation he received Exhibit-P4 reply. In effect, Exhibit-P4 conveyed the decision of the management that his case will be considered as and when promotion exercise is made. It is also pointed out that there are nine persons occupying the posts of Managers in the Company and having due regard to the present position, there is no requirement of another Manager. Hence the WPC No.2493/2006 was closed reserving the right of the petitioner to challenge the rejection of the claim for promotion. Petitioner points out that on 1.6.2005, 10 Deputy Managers were promoted to the post of Manager with effect from 1.1.2005. Out of the above said 10 Managers, Sri.S.Sreekumar resigned from the post of Manager with effect from 31.10.2006 and accordingly there arose one vacancy in the post of Manager that remains to be filled up. It is pointed out that petitioner is entitled to be considered for promotion in the above vacancy. This is the basis of the claim raised by the petitioner. 2. On behalf of the respondents, a counter affidavit has been placed on record. They deny the allegation that W.P ( C) No.19883 of 2007 3 petitioner is discriminated in the matter of promotion to the post of Manager. 3. Personal details of various officers have been pointed out in the counter affidavit to show that there has not been any discrimination as far as the petitioner is concerned. It is pointed out further that promotion within the cadre is effected as per the promotion norms as and when the organisational need arises and/or against existing vacancies. The petitioner was not rated as outstanding or excellent since the appraisal score of the petitioner is only 66%. 4. As regards the averment that one vacancy has arisen on 31.10.2006 in paragraph 8 of the counter affidavit it is admitted that Sri.S.Sreekumar resigned from service on 31.10.2006. He was holding the post of Works Manager which is a senior position in the company requiring expert knowledge and specialised nature of work experience. The post of Works Manager has since been officiated by Sri.P.N Ramesh Babu consequent on the relieving of Sri.S.Sreekumar. It is pointed out that there is W.P ( C) No.19883 of 2007 4 no requirement for any additional Manager as of now having due regard to the present position of organizational structure and also the need of the respondent company. 5. The question is whether the above stand taken by the respondent could be accepted or not. Learned counsel for the petitioner relying upon the decision of the Apex Court in Union of India and others Vs. Sangram Keshari Nayak[{2007} 6 SCC 704] contended that right to be considered for promotion is a fundamental right and therefore his right that as prescribed by Exhibit-P1 may not be denied to him. 6. Going by the stand taken in Exhibit-P4, it cannot be said that the respondent has denied his right to get promotion. What is pointed out is that as per the organizational needs such a promotion is not being envisaged. There were nine Managers at the relevant time when Exhibit-P4 was passed and it was informed further that having due regard to the present position, there is no requirement of any Manager. Unless it is shown that the above stand taken by the Management is due to extraneous W.P ( C) No.19883 of 2007 5 or mala fide reasons, petitioner cannot succeed. What is better for the company is for the management to decide. It cannot therefore be said that the present stand taken not to have more than 9 Managers is vitiated by any factors as pointed above. Then as regards the filling up of vacancy due to resignation of Sri.S.Sreekumar also they have made officiating accommodation to hold the said post. There is therefore no merit in the contention that petitioner's right to get promotion has been denied once for all. That he will be considered for promotion, as and when it is effected, is assured in Exhibit-P4. In that view of the matter, the dictum laid down in Union of India and others Vs. Sangram Keshari Nayak[{2007} 6 SCC 704] cannot come to the help of the petitioner. If at the point of time of filling up of the vacancy, the petitioner's claim for promotion is not considered, he may be right in contending that there is absolutely denial as far as his rights are concerned. But that stage has not reached at all 7. In that view of the matter this Court cannot at this stage direct the respondents to effect promotion of the W.P ( C) No.19883 of 2007 6 petitioner to the post of Manager. Management has made it clear in Exhibit P4 and in the counter affidavit that he will be considered along with others when the management decides to fill up the post of Manager. The same will protect the rights of the petitioner. Therefore the challenge against Exhibit-P4 fails. It is made clear that whenever the management seeks to fill up the post of Manager the claim of the petitioner for promotion will be considered, in accordance with the provisions of Exhibit-P1. The writ petition is disposed of as above. No costs. (T.R.RAMACHANDRAN NAIR, JUDGE) ma W.P ( C) No.19883 of 2007 7 W.P ( C) No.19883 of 2007 8