IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 4TH DECEMBER 2008 / 13TH AGRAHAYANA 1930 WP(C).No. 19481 of 2005(T) -------------------------- PETITIONER(S): --------------- PREMARAJAN, AGED 52 YEARS, S/O.PAITHAL, TYRE RETREADER, K.S.R.T.C. REGIONAL WORK SHOP, EDAPPAL. BY ADV. SRI.P.P.SOMAN NAIR RESPONDENT(S): --------------- 1. THE KERALA STATE ROAD TRANSPORT CORPORATION, TRANSPORT BHAVAN, FORT P.O. THIRUVANANTHAPURAM. REP. BY ITS MANAGING DIRECTOR. 2. THE BOARD OF DIRECTORS OF K.S.R.T.C. REPRESENTED BY ITS SECRETARY, TRANSPORT BHAVAN, THIRUVANANTHAPURAM. 3. THE FINANCIAL ADVISER AND CHIEF ACCOUNTS OFFICER, KERALA STATE ROAD TRANSPORT CORPORATION, TRANSPORT BHAVAN, THIRUVANANTHAPURAM. 4. THE CHIEF VIGILANCE AND DISCIPLINARY OFFICER, KERALA STATE ROAD TRANSPORT CORPORATION, TRANSPORT BHAVAN, THIRUVANANTHAPURAM. 5. THE EXECUTIVE DIRECTOR (T) KERALA STATE ROAD TRANSPORT CORPORATION, TRANSPORT BHAVAN, THIRUVANANTHAPURAM. 6. THE EXECUTIVE DIRECTOR(A) & S, KERALA STATE ROAD TRANSPORT CORPORATION, TRANSPORT BAHVAN, THIRUVANANTHAPURAM. 7. THE WORKS MANAGER, KERALA STATE ROAD TRANSPORT CORPORATION, REGIONAL WORK SHOP, EDAPPAL 8. E.K.SASI, CHARGEMAN GRADE II(TYRE RETREADER), KERALA STATE ROAD TRANSPORT CORPORATION, REGIONAL WORK SHOP, EDAPPAL. 9. O.SATHIANDRAN, CHARGEMAN GRADE II, TYRE RETREADER, KERALA STATE ROAD TRANSPORT CORPORATION, CENTRAL WORKS, PAPPANAMCODE. ADV. SRI.P.CHANDRASEKHAR FOR R8 & 9 SRI.SAJEEVKUMAR K.GOPAL, SC, KSRTC FOR R1 TO 7 SHRI.JOHNSON P.JOHN, SC, KSRTC FOR R1 TO 7 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/12/2008, THE COURT ON THE SAME DAY, DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: W.P.C. NO. 19481/2005. ------------------------------------------------------------------ EXT.P1 TRUE COPY OF ORDER OF APPELLATE TRIBUNAL IN R.P.4/88 DT. 20-10-1990. EXT.P2 ORDER DT. 30-10-1991. EXT.P3 APPEAL DT. 24-11-1991. EXT.P4 PAGES 1, 124 & 125 OF GRADATION LIST. EXT.P5 PROMOTION ORDER DT. 23-9-2004. EXT.P6 PROMOTION ORDER DT. 4-2-2005. EXT.P7 REPRESENTATION DT. 18-1-2005. EXT.P8 MEMORANDUM DT. 21-2-2005. EXT.P9 ORDER DT. 1-3-1989. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W. P (C) No. 19481 of 2005 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 4th December, 2008. J U D G M E N T The petitioner entered service of the Kerala State Road Transport Corporation as a Tyre Retreader on 3-5-1975. He was promoted as 1st Grade Tyre Retreader on 11-9-1980. While working so, on 25-5-1985, disciplinary proceedings were initiated against him alleging that he was unauthorisedly absent from duty from 13-12- 1984 onwards. After conducting an enquiry, on having been found guilty of the misconduct alleged against him, the petitioner was removed from service on 17-5-1986 as a punishment. Appeal filed against that order of removal from service having been dismissed on 2-12-19887, the petitioner filed a revision before the Appellate Tribunal for Kerala State Road Transport Corporation . The Tribunal, after confirming the finding of guilt found that the penalty imposed is disproportionate to the gravity of misconduct and set aside the punishment imposed upon the petitioner. It was directed that the petitioner may be reinstated in service forthwith and that he shall not be entitled to back wages for the period during which he was kept out of service. Pursuant thereto, the petitioner was reinstated in service on 27-2-1991. However, by Ext. P2 order, the disciplinary authority thereafter imposed a punishment of withholding of one increment with cumulative effect with a further direction that the period during which he was kept out of service would be regularised as leave without allowances. The petitioner submits that counting the period of absence as well, the petitioner was given further grade promotion as Special Grade Tyre Retreader and that in Ext. P4 seniority list also, his seniority position had not been changed. However, when promotion to the next higher post of Chargeman Grade II (Tyre Retreader) was considered, the petitioner was overlooked on the ground of penalty and a person junior to him was promoted, who is W.P.C. No. 19481/2005. -: 2 :- the 8th respondent herein. The petitioner was again overlooked for promotion to the same post by Ext. P6 order on the same ground promoting the 9th respondent. Against such denial of promotion, the petitioner filed Ext. P7 representation before the Managing Director. However, by Ext. P8 order, the grade promotion sanctioned to him was also cancelled. The petitioner is challenging Exts.P5, P6 and P8 orders in this writ petition. 2. During the pendency of the writ petition, the petitioner retired from service on 30-11-2008. 3. The petitioner's contention is that although, formerly, as per grade promotion rules, leave without allowances exceeding 15 days, without medical certificate, was excluded for the purpose of monetary benefits of grade promotion by clause 9(f) thereof, that clause was deleted by Ext. P9 order dated 1-3-1989 and therefore the period of absence of the petitioner on account of the punishment has to be reckoned for the purpose of grade promotion. As far as regular promotion to the post of Chargeman Grade II (Tyre Retreader) is concerned, the petitioner submits that the promotion is on the basis of seniority. As is evident from Ext. P4, the petitioner's seniority remains unchanged despite the absence from duty on account of the penalty. In so far as the promotion is by seniority only, the petitioner could not have been overlooked for promotion on the basis of having been kept out of service on account of penalty, which was later quashed by the Tribunal. He therefore submits that he is entitled to be promoted to the post of Chargeman Grade II with effect from the date when the 8th respondent was promoted by Ext. P5 order dated 23-9-2004. 4. Although a counter affidavit has been filed on behalf of respondents 1 to 7, nothing is mentioned therein as to the rules based W.P.C. No. 19481/2005. -: 3 :- on which the petitioner has been overlooked for promotion and his grade promotion was cancelled. All what has been stated is that the petitioner was punished for unauthorised absence and therefore the petitioner is not entitled to either regular promotion or grade promotion. 5. I have considered the contentions in detail. 6. It is a sad situation that a statutory authority that the Kerala State Road Transport Corporation is, is unable to place before me the relevant service rules applicable to the case. In so far as the petitioner has stated in his writ petition that the promotion to the post of Chargeman Grade II is by seniority and by virtue of Ext. P9, leave without allowances should also be counted for the purpose of grade promotion, which has not been denied by respondents 1 to 7, I have no other go but to accept the same as true and correct. If for the purpose of grade promotion, leave without allowances was also to be counted as service, there is no justification for respondents 1 to 7 to cancel the grade promotion given to the petitioner. That being so, Ext. P8 order is liable to be quashed. I do so. 7. Next comes the question of eligibility of the petitioner for promotion as Chargeman Grade II. As I have already stated, I have accepted the contention of the petitioner that the promotion to the post of Chargeman Grade II is purely by seniority alone in so far as the Kerala State Road Transport Corporation has not chosen to controvert the averment of the petitioner and they have not chosen to produce the Rules regarding such promotion. If that be so, as is clear from Exts.P5 and P6, the petitioner was senior to respondents 8 and 9. As such, by virtue of the seniority, the petitioner was entitled to be promoted in preference to respondents 8 and 9. In so far as it is not a selection post, the punishment imposed on the petitioner is not a W.P.C. No. 19481/2005. -: 4 :- relevant factor for denying him promotion in the absence of any rules to that effect unless he has been imposed with the punishment of barring of promotion. Therefore, I find that the petitioner is entitled to be promoted to the post of Chargeman Grade II (Tyre Retreader) with effect from the date when the 8th respondent was promoted to that post. However, I am not inclined to direct the Corporation to pay to the petitioner arrears of salary from the date of such notional promotion to the date of retirement. But, the petitioner's pay shall be fixed as if he had been promoted on the date when the 8th respondent was promoted and his pensionary benefits shall be re-fixed accordingly. Orders in this regard shall be passed and arrears of retirement benefits be paid to the petitioner along with any amount recovered from him on account Ext. P8 order within three months from the date of receipt of a copy of this judgment. The writ petition is disposed of as above. Sd/- S. Siri Jagan, Judge. Tds/