The High Court of Kerala ruled that promotions should be determined based on the date of vacancy occurrence, with the first qualified person being considered for promotion. Additionally, it held that when on the date of occurrence of vacancy, there is more than one qualified person in the feeder category, then promotions are based on merit and ability and seniority will be considered only when merit and ability are approximately equal and that there was no conflict between the special rules and general rules given in Kerala State and Subordinate Service Rules, 1958 (‘KS&SSR’).
Brief Facts:
The Petitioner was working under the respondent as Assistant Gr. – II and was promoted to Assistant Gr. – I which is the feeder category of Assistant Manager/ Accountant. The Petitioner had an MBA degree and was duly qualified as on the date of declaration of probation and was therefore eligible for the promotion and there were eleven vacancies of Assistant Manager/Accountant in the Respondent corporation on the date she was eligible for promotion, but she was not being promoted.
Therefore, she approached the court for a grant of promotion and the court directed promotion to be effected within two months. When the promotions were effected, the Petitioner was positioned at seniority No. 8. Thus, the Petitioner again approached the Court alleging that she was entitled to get preference in seniority over other employees as she was the first one to have qualified.
Contentions of the Petitioner:
It was contended that the petitioner is entitled to preference in seniority according to the KS&SSR. It was further contended that promotions should be decided with reference to the time of occurrence of the vacancies and not the time of making appointments.
Contentions of the Respondent:
It was contended that the general rule under the KS&SSR was not applicable and the conditions of service of employees of the corporation are regulated by the special rules which provide for promotion, seniority, etc.
Observations of the Court:
The Court observed that according to rule 28(b)(iA) and Rule 28(bb) of Part II KS&SSR and the general principles, the date which is relevant for deciding upon the question of promotion is the date of occurrence of vacancies and according to rule 28(iA) KS&SSR, if on date of occurrence of vacancy, there are no qualified persons then the person who qualifies first is liable to be considered for promotion. If the said principle would have been applied, then the Petitioner would have been first in the queue for promotion.
It was held that promotions are to be decided according to the time of occurrence of vacancy and the relevant date must be definite and not depend on the violation of the authorities. The Bench stated that bearing that principle in mind, if Rule 38(1) in the Special Rule is understood, it can only mean that, if as on the date of occurrence of the vacancy there are more than one qualified and eligible persons in the feeder category, then promotions will be made on the basis of merit and ability and seniority will be considered only when merit and ability are approximately equal. Therefore, it could only be held that there is no repugnance between Rule 38(1) of the Special Rules and Rules 28(iA) and 28(bb) of Part II KS&SSR.
The decision of the Court:
The Bench accordingly allowed the petition.
Case Title: Rasha K v. Kerala State Beverages (M&M) Corporation Ltd
Coram: Hon’ble Mr. Justice Sathish Ninan
Case No.: WP(C) No. 24173 of 2017
Advocates for the Petitioner: Advs. Mr. K. Praveen Kumar, Mr. S. P. Aravindakshan Pillay, Mr. N. Santha, Mr. V. Varghese, Mr. Peter Jose Christo, Mr. S. A. Anand, Mr. K. N. Remya, Mr. L. Annapoorna
Advocates for the Respondent: Advs. Mr. Naveen T., Mr. Shyam Kumar, Mr. U. Balagangadharan, Mr. Harish R. Menon, Mr. K. N. Abha, Mr. A. G. Prasanth, Ms. Aleena Sebastian, Ms. Mary Hedwig Baby
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