Kerala High Court · 1981

..2...WPC.NO.23092/2009 FR4.ASHA.L.,SPECIAL GRADE ASSISTANT,KERALA STATE INDUSTRIAL ENTERPRISES LTD.,1ST FLOOR, ST.JOSEPH'S PRESS BUILDINGS,COTTON HILL, TRIVANDRUM - 695 014,RESIDING AT ANANDANILAYAM, THIRUPURAM,THIRUPURAM PO, NEYYATTINKARA, THIRUVANANTHAPURAM - 695 133.R5.MEERA S.KRISHNAN,GENERAL ASSISTANT, KSIE LTD.,(PRESENTLY WORKING AS JUNIOR ASSISTANT,OIL PALM INDIA LTD., KOTTAYAM ON DEPUTATION),RESIDING AT KUTTENTHEZHATHU VEEDU,VATTIYOORKAVU PO, THIRUVANANTHAPURAM - 13.(*ADDL.R3 TO R5 ARE IMPLEADED AS PER ORDER DTD. 16/11/2009 IN I.A.NO.14156/09) R1BY ADVS. SRI.E.K.NANDAKUMAR SRI.A.K.JAYASANKAR SRI.K.JOHN MATHAI SRI.P.BENNY THOMAS SRI.ANIL D. NAIR SRI.V.J.ANAND R2 BY ADV. SRI.P.C.SASIDHARAN, SC, KPSC ADDL.R3-R5 BY ADVS. SRI.S.P.ARAVINDAKSHAN PILLAY SMT.N.SANTHA SRI.S.A.ANAND THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09-11-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:Kss WPC.NO.23092/2009 FAPPENDIXPETITIONER'S EXHIBITS:P1:COPY OF THE P.S.C. ADVISE DTD. 18/01/2002 ISSUED BY THE 1ST RESPONDENT TO THE 1ST PETITIONER.P2:COPY OF THE APPOINTMENT OFFER LETTER DTD. 16/11/2002.P3(A):COPY OF THE LETTER DTD. 19TH FEBRUARY 1981.P3(B):COPY OF LETTER OF KPSC ADVISE DTD. 10/02/1982.P4:COPY OF THE LETTER DTD. 7TH JULY 2004.P5:COPY OF THE REPRESENTATION DTD. 7/11/2007 BEFORE THE 1ST RESPONDENT KSIE LTD.P6:COPY OF THE LETTER DTD. 7/07/2008 INFORMING THE POSITION REFERENCE TO PSC.P7:COPY OF THE LETTER DTD. 21/08/2009 OF PSC.P8:COPY OF THE ARTICLES OF ASSOCIATION OF 1ST RESPONDENT.RESPONDENT'S ANNEXURES & EXHIBITS:ANNEX.A:COPY OF THE ADVICE LIST DTD. 15/06/2002 SHOWING THE REVISED ADVICE LIST IN RESPECT OF PETITIONERS 1 TO 3.ANNEX.B:COPY OF THE LETTER ISSUED IN THIS BEHALF DTD. 30/01/2002 BY THE ADDL.SECRETARY OF INDUSTRIES DEPARTMENT TO THE 1ST RESPONDENT.ANNEX.C:COPY OF COMMUNICATION DTD. 07/07/2008 ISSUED BY THE 1ST RESPONDENT TO THE 2ND RESPONDENT.ANNEX.D:COPY OF COMMUNICATION DTD. 30/05/2009.R3(A):COPY OF THE PROCEEDINGS NO.HR/75/979 DTD. 09/12/2004 OF THE MANAGING DIRECTOR KSIE LTD.R3(B):COPY OF THE PROCEEDINGS NO.HR/04/48/894 DTD. 07/12/2007 OF THE GENERAL MANAGER (HR)/i/c.Kss..2/- ..2....WPC.NO.23092/2009 FR3(C):COPY OF THE PROCEEDINGS NO.HR/04/3316 DTD.15/04/2002 OF THE GENERAL MANAGER (HR) IN-CHARGE OF KSIE LTD.R3(D):COPY OF THE PROCEEDINGS NO.HR/75/304 DTD. 29/06/2005 OF THE MANAGING DIRECTOR KSIE LTD.R3(E):COPY OF THE PROCEEDINGS NO.HR/04/38/824 DTD. 05/11/2008 OF THE GENERAL MANAGER (HR)/i/c OF KSIE LTD.R3(F):COPY OF THE REPRESENTATION DTD. 16/11/2009 TO THE MANAGING DIRECTOR, KSIE LTD.R3(G):COPY OF THE PROCEEDINGS NO.42 OF 1983 DTD. 20/10/1983.R3(H):COPY OF THE PROCEEDINGS NO.PIR/44 DTD. 8/07/1998 OF THE CHAIRMAN AND MANAGING DIRECTOR.R3(I):COPY OF THE LETTER NO.CRIIB (2)1019/97/CW DTD. 11/03/1998./TRUE COPY/P.S.TO JUDGE Kss C.T.RAVIKUMAR, J.----------------------------W.P.(C)No.23092 of 2009----------------------------Dated 9th November, 2012JUDGMENTThe petitioners are General Assistants under the KeralaState Industrial Enterprises Ltd., the first respondent. This writ petitionhas been filed mainly seeking the following reliefs:-“i) Issue a writ of mandamus directing the firstrespondent to frame a comprehensive Rules inrespect of recruitment and promotions aspectsapplicable to employees in the staff category of thefirst respondent in consultation with the secondrespondent PSC talking note of the provisionscontained in Kerala Public Service Commission(Additional Functions as Respects certain Corporationand Companies) Act 970, the Kerala Public ServiceCommission (Consultation by Corporations andCompanies) Rules 1971 and other relevant Acts andRules.ii) Issue a writ of mandamus directing the firstrespondent to consider and pass orders on Ext.P5representation, within the time limit that may beprescribed by this Hon'ble Court.iii) To call for records leading to Ext.P4 amendedrecruitment and promotion policy dated 7.7.2004 andquash the same to the extent to which it go againstthe principles of seniority of persons in servicestipulated under Rules 27 and 28 of the KSSR.iv) Issue such other writ or order or direction to considerthe representation made by petitioners for restorationof seniority and promotion to higher in terms ofExhibits and in accordance with the originalrecruitment rules framed in Consultation with PSC.” WP(C).No.23092/200922. Respondents 3 to 5 got themselves impleaded in this writpetition apprehending threat to their settled seniority as also continuancein the post presently held by them. However, a scanning of thecontentions as also the prayers would reveal that there is no directchallenge either against their promotion or against seniority assigned tothem in the category of General Assistant, in this writ petition. Eventhen, the contentions would suggest that without throwing any directchallenge against their promotion or assignment of seniority thepetitioners are virtually adopting an indirect method to achieve that goalby making prayer No.3. At the same time, a perusal of prayer No.3would reveal that there is no challenge even against Ext.P4 amendedrecruitment rules. With this prelude I will consider the entitlement orotherwise of the petitioners to the reliefs sought for in this writ petition.3. I have heard the learned counsel appearing for thepetitioners, learned standing counsel appearing for the first respondent,learned standing counsel for the second respondent and also the learnedcounsel appearing for respondents 3 to 5. WP(C).No.23092/200934. Prayer No.1 is virtually a prayer for issuing a writ ofmandamus commanding the first respondent to frame comprehensiverules in respect of recruitment and promotions of employees in the staffcategory under the first respondent in consultation with the secondrespondent talking (sic.taking) note of the provisions contained in KeralaPublic Service Commission (Additional Functions as Respects certainCorporations and Companies) Act, 970 (sic.1970) and the Kerala PublicService Commission (Consultation by Corporations and Companies)Rules, 1971 and other relevant Acts and Rules. While considering theentitlement of the petitioners for the said relief it is worthwhile to noteprayer No.3. Prayer No.3 itself would reveal that the first respondenthas, indeed, effected amendment to the recruitment rules and thatExt.P4 is the amended recruitment and promotion policy came into forceon 7.7.2004. There can be little doubt with respect to the position thatan amendment can be brought in only if rules are already framed. It isobvious that in the matter of recruitment and promotion the firstrespondent has already framed rules and subsequently amendmentswere also effected to certain provisions in the recruitment rules. Whenthat be the position, there is absolutely no scope for considering theprayer of the petitioners for issuing writ of mandamus for framing rulesin the matter of recruitment and promotions. WP(C).No.23092/200945. Prayer No.3 appears to pose a challenge against Ext.P4recruitment rules and promotion policy. At the same time, a scanning ofthe said prayers and related pleadings in the body of the writ petitionwould reveal that there is no proper challenge against Ext.P4 amendedrecruitment rules and promotion policy. It is also not discernible as tohow Ext.P4 amended recruitment rules and promotion policy would goagainst the principles of seniority of persons in service stipulated underRules 27 and 28 of the Kerala State & Subordinate Services Rules. Therecannot be any doubt with respect to the position that a recruitment rulecannot be lightly challenged and can be challenged only on legallysustainable grounds. The petitioners could not bring to my attention anysuch sustainable ground capable of invalidating Ext.P4 amendedrecruitment and promotion policy dated 7.7.2004. It is not discerniblefrom the pleadings as to how and in what manner Ext.P4 amendedrecruitment and promotion policy dated 7.7.2004 go against theprinciples of seniority of persons in service under Rules 27 and 28 of theKS & SSR. In the absence of any legally sustainable ground andespecially based on a very vague averment, Ext.P4 amended recruitmentrules and promotion policy cannot be called in question. Prayer Nos.2and 4 are virtually one and the same. As noticed hereinbefore, there is WP(C).No.23092/20095no direct challenge against either the promotions granted or seniorityassigned to respondents 3 to 5 in this writ petition and in that matter nospecific challenge against promotions granted or seniority assigned toanyone is challenged. It is not stated in this writ petition as to whichdate objectionable promotions were granted or seniority were assignedas also who were those persons who obtained promotions ahead of andseniority over, the petitioners. At any rate, it is not open to thepetitioners to challenge promotion or seniority in such a casual and vaguemanner. That apart, in the light of Ext.P4 amended rules the petitionerscannot contend that the post of Telephone Operator is not in the feedercategory for promotion to the post of General Assistant and therefore,consideration of persons belonging to that category, in accordance withthe rules in vogue cannot be a grief causing aspect for the petitioner.Therefore, the petitioner cannot have a grievance against the 3rdrespondent which could be legally redressed. It is also pertinent to notethat in Ext.P5 representation itself the petitioners have virtually concededthe seniority of respondents 4 and 5 in the category of General Assistant.Ext.P5 wound again show that respondents 4 and 5 got that promotion inthe year 2005 whereas the petitioners reached the category of GeneralAssistant only in the year 2006. At any rate, considering the fact thatthe petitioners who had not chosen to challenge the promotion of WP(C).No.23092/20096respondents 3 to 5 or any other persons working under the firstrespondent, at the appropriate time cannot now be permitted toindirectly throw challenge against their promotions or assignment ofseniority. If prayer No.2 or 4 is granted, definitely it would have theeffect of granting permission to the petitioners to challenge thepromotion as also seniority of respondents 3 to 5 or some others despitetheir failure to take up their cause, if any, at the appropriate time. Insuch circumstances, a direction to the first respondent to consider andpass orders on Ext.P5, at this distance of time, also cannot be granted asit may result in resurrection of a stale claim. The upshot of thediscussion is that the petitioners are not entitled to any of the reliefssought for in this writ petition. The writ petition is liable to fail and accordingly, it isdismissed. Sd/- C.T.RAVIKUMAR JudgeTKS