Sreekumar G vs Konkan Railway Corporation Ltd ...
2017 Latest Caselaw 9348 Bom

                                                                      903-WP.1281.2015.doc


  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
          CIVIL APPELLATE JURISDICTION

                WRIT PETITION NO. 1281 OF 2015
                            WITH
           CIVIL APPLICATION (ST) NO. 28302 OF 2015


 Sreekumar G.               }                       Petitioner
           versus
 Konkan Railway Corporation }
 Ltd. and Ors.              }                       Respondents


 Mr. Saikumar                  Ramamurthy   for     the
 petitioner.

 Ms. Kiran Bagalia for the respondents.


                           CORAM :- S. C. DHARMADHIKARI &
                                    SMT. BHARATI H. DANGRE, JJ.

DATED :- DECEMBER 6, 2017

ORAL JUDGMENT :- (Per S. C. Dharmadhikari, J.)

1. Rule. Respondents waive service. Since the pleadings are

complete and we have heard both sides extensively, we dispose of

this petition by this judgment and order.

2. The petitioner before this court had instituted this writ

petition and for the following reliefs:-

"a) that this Hon'ble Court be pleased to issue a writ of certiorari or other appropriate writ, order or direction calling for the record and proceedings leading to passing of the order dated 28.06.2013 by the authorities and this Hon'ble Court be pleased to examine the legality and/or propriety of the said letter/ order dated 28.06.2013 and this Hon'ble Court be pleased to quash and set aside the same.

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b) that this Hon'ble Tribunal be pleased to hold and declare that the promotion to the petitioner from 28.03.2005 on ad-hoc basis in junior scale in the accounts department of Konkan Railway, is regular service for all purposes in view of the terms of absorption of the Petitioner and hold that on that basis the petitioner is entitled for further promotion in the Konkan Railway in the department of Konkan Railway with all consequential benefits.

c) that this Hon'ble Court be pleased to issue a writ of mandamus or other appropriate writ order or direction directing the Konkan Railway authorities to consider the case of the petitioner by treating the promotion to the petitioner as junior scale with effect from 28/3/2005 as regular and give promotion to the petitioner from April 2009 or on par with his Juniors in 2009 as senior scale with all consequential service benefits including seniority, pay fixation from that date and all other consequential service benefits at the rate of 18% p.a. on the said due date till date."

3. After this petition was heard at some length on the earlier

occasion, namely, 22nd November, 2017, we had passed the

following order:-

"1 After this matter was argued for some time and we clearly expressed to Mr. Ramamurthy, learned advocate appearing for the petitioner, that in the light of the affidavits of the Konkan Railway Corporation Limited and particularly in the absence of the petitioner relying on any rule, regulation or promotion policy, it will not be possible to consider his grievance, Mr. Ramamurthy prays that an adjournment be granted as a last chance so as to enable the petitioner to produce the promotion policies in a compilation.

2. Let Mr. Ramamurthy produce such a compilation and that will be taken on record, provided a copy is served on Ms. Bagalia in advance.

3 We place this petition on 6 th December, 2017, under the caption "For Passing Orders"."

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4. Pursuant to this order, a compilation of documents, stated

to be the promotion policies in the Konkan Railway Corporation

Limited (hereinafter referred to as the "KRCL"), is placed on

record. For appreciating the contentions of the petitioner's

counsel Mr. Ramamurthy, it must be noticed that the petitioner

joined the services of the Central Railway in the accounts

department on 10th November, 1987 as Junior Accounts

Assistant. He earned promotions and was working as Senior

Section Officer (Accounts) in the Central Railway in 2001. At

that stage, the first respondent-Corporation invited the eligible

officials of the Central Railway to work on deputation with the

first respondent. Their willingness was sought for and the

petitioner states that he expressed his willingness to work on

deputation with the KRCL as Senior Section Officer and Section

Officer in the Accounts Department and other related posts.

5. There was an interview held on 20 th March, 2001 and

thereafter, a communication was addressed informing the

petitioner that the petitioner would be taken on deputation in

KRCL. That is because, there were interviews held and the

petitioner also was granted an ad-hoc promotion. It is stated by

the petitioner that this ad-hoc promotion order dated 23 rd March,

2015 would enable him to urge that whatever may be the

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nomenclature attached to the post. Since the petitioner is

absorbed in the services of the KRCL, he could not be termed as

an employee of the Central Railway. He may have been required

to tender a resignation for technical compliance, but that does not

in any manner indicate that his ad-hoc promotion is of no legal

effect. In other words, after working for five years in KRCL on

deputation, the petitioner made a request on 15th November,

2007 for permanent absorption in KRCL.

6. Mr. Ramamurthy would submit that respondent nos. 1 to 3

are cashing on this resignation by the petitioner. However, they

cannot make any capital of the same for that was a requirement

to be fulfilled so as to issue the formal order of permanent

absorption. That, by no stretch of imagination, can wipe out the

promotion granted to the petitioner, all the more when he was

serving the Corporation for five years. It is in these

circumstances that the petitioner would submit that the four

annexures to this writ petition, namely, Annexure 'B' at page 26,

Annexure 'C' at page 28 with the file notings and annexure 'D' at

page 29 are crucial documents. Together with that, the document

at Annexure 'E' at page 30 would indicate that the negotiations

between the petitioner and the management culminated in a

requirement of a technical resignation of the petitioner. He was

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required to tender resignation from the Central Railway, which

he tendered, copy of which is at Annexure 'F' at page 31 of the

paper book. It is that document which is relied upon to the

determent of the petitioner. What the respondents forget is their

own communication at page 32 and the file notings thereon. This

would indicate as to how the petitioner's services would have to

be reckoned from the date of his ad-hoc promotion, namely, 26 th

March, 2005 and not from 25th July, 2008 as erroneously

understood by the respondents. In that regard, heavy reliance is

placed on Annexure 'I' to this petition. That annexure reads as

under:-

"EXTRACT OF THE MINUTES OF THE 97 th MEETING OF THE BOARD OF DIRECTORS HELD ON 16TH JANUARY 2008 AT 17:30 HRS. AT COMMITTEE ROOM, RAIL BHAVAN, RAISINA ROAD, NEW DELHI.

ITEM NO. 14 ABSORPTION POLICY IN KRCL

The Board of Directors agreed to the absorption policy of KRCL to deputationists by giving upto two higher grades. This offer of two higher grades can also be offered to deputationists on need basis. The Directors' Committee will review the case of higher grade before sanction by managing Director. When absorbed with two higher grades in KRCL, seniority shall be fixed as per DPE guidelines i.e. "The seniority of officers for services in an enterprise should be fixed in a particular grade with effect from the date of their original deputation to that grade and not from the date of exercising their option, regardless of the terms offered to them.""

7. The petitioner would submit that there are subsequent

events, but what the essential grievance is that nothing which

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would wipe out the services rendered from 2005 should be

sustained by this court. The petitioner was requesting for

promotion, but he was informed on 28th June, 2013 as under:-

"CO/P-E/VIP/Reference Date: 28/06/2013. Shri Sreekumar AAO/Funds KRCL

Sub: Promotion to Senior Scale.

Ref: Your letters dated 15/03/2013 and 09/08/2012.

Reference above, your grievance for promotion to Senior Scale was addressed and replied through various channels. You have obtained replies to your grievances from Railway Board, RTI etc. You have approached political parties to influence your promotion to Senior Scale which is against the Service Conduct Rules of KRCL.

It is reiterated that your promotion to Senior Scale is governed by the extant Promotion Policy.

Hence, your decision for filing a writ petition against the KRCL Administration is totally unwarranted.

This has approval of the Competent Authority.

(S. D. Bapat) Assistant Personnel Officer "

8. Mr. Ramamurthy would submit that none of these

documents can override the specific resolution of the Board of

Directors, passed at its 97th meeting. It is in these circumstances

Mr. Ramamurthy would submit that the contrary stand in the

affidavit in reply of the respondents should not be accepted by

this court. That would completely take away the fundamental

right guaranteed by Articles 14 and 16 of the Constitution of

India. That right is of equality before law and and equality in

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public employment. Mr. Ramamurthy relies upon the petitioner's

affidavit in rejoinder and an additional affidavit filed pursuant to

the earlier order so also the compilation of documents annexed

thereto. Mr. Ramamurthy would submit that the promotion

policy consistently followed and applied by the KRCL is in tune

with the Board Resolution passed in 97 th meeting of the Board of

Directors of the KRCL. In these circumstances, he would submit

that the petition be allowed and the reliefs as prayed be granted.

9. On the other hand, Ms. Bagalia appearing for the

respondents would submit that it is not the petitioner's case and

relying upon the order dated 20th March, 2001 that he was a

permanent employee of the KRCL. In fact, on 20 th March, 2001, it

is stated that the interview conducted by the KRCL was attended

by seven employees from the Central Railway and three

employees from the Western Railway. One amongst the seven

employees of the Central Railway was the petitioner. Then, on

26th March, 2005, the KRCL issued a direction of ad-hoc

promotion in Accounts Department. The Senior Section Officers,

who were working on deputation with the KRCL with minimum

three years of service were considered for such ad-hoc promotion.

After considering such case, the Panel drew up a list of

recommended candidates. The petitioner was thus promoted as

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Assistant Accounts Officer in the KRCL purely on ad-hoc basis

and as a stopgap measure. Ms. Bagalia submits that pertinently,

on this date, the petitioner was the employee of the Central

Railway and deputationist with the KRCL. Though the permanent

absorption of the petitioner was sought by him by a letter dated

15th November, 2007 and granted subsequently with effect from

25th July, 2008, today, the petitioner is arguing that he did not

have to seek any permanent absorption in the services of the

KRCL nor was he required to tender any resignation and all these

are technical matters. However, she would submit that unless

and until there was master servant relationship, there was no

question of his tendering a resignation from the services of the

Central Railway and then being permanently absorbed in KRCL.

That was specifically informed to him. The decision of the 97 th

meeting of the Board of Directors of the KRCL and the Resolution

are now read conveniently. The petitioner was informed on 26 th

August, 2008 that the permanent absorption in the services of

the KRCL would be with effect from 25th July, 2008. From that

date, till the date of this petition, no grievance was ever made. In

fact, the other employees were promoted on 14 th May, 2010.

However, on that date, the petitioner could not have gained the

promotion given the policy of the KRCL. It is in these

circumstances, she would submit that he has been promoted as

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noted by this court from the contents of the additional affidavit in

reply. The petitioner has been promoted to the senior scale of

15600-39100 with Grade Pay 6600 in Pay Band - III vide Office

Order No. 65 of 2015 dated 31st December, 2015. It is in these

circumstances, the request as made cannot be granted.

10. With the assistance of the advocate appearing for the

parties, we have perused the petition and the annexures thereto.

We have also perused all the affidavits placed on record.

Pertinently, the petitioner was informed by the KRCL that he

attended an interview. That interview was in connection with

appointing him on deputation in the KRCL. The petitioner knew

that he was employee of the Central Railway, but with the

concurrence and approval of the Central Railway he can go as a

deputationist in the KRCL. That is how he joined. On 26 th March,

2005 he accepted an ad-hoc promotion and the communication at

page 26 informs him that this is an ad-hoc promotion purely as a

stopgap measure. Then, the petitioner was informed by

Annexure 'B' on 26th March, 2003 that in order to fill up the

existing vacancies of Assistant Accounts Officers in the Accounts

Department, the senior officers, who are presently working on

deputation in KRCL with minimum three years of service in the

KRCL were considered. That is how the petitioner, on his own

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showing, applied for absorption. If the facts were not as clear as

above, then, there is no occasion for the petitioner to plead in the

petition that he applied for permanent absorption. The petitioner

himself states that after working for almost five years in the

KRCL on deputation, he made a request dated 15 th November,

2007 for being permanently absorbed in the KRCL. This request

was put up before the competent authority. The 97 th meeting of

the Board of Directors, held on 16 th January, 2008 considered the

permanent absorption policy in KRCL. In view of this, the case of

the petitioner was put up for promotion. The file notings indicate

that the petitioner's case can be considered for permanent

absorption in Junior Scale (Regular) Accounts Officer under the

Managing Director's powers of sanction, as decided in that

meeting of the Board of Directors. Thereafter, an approval was

granted.

11. On 26th August, 2008, the petitioner was specifically

informed by the KRCL that consequent upon acceptance of

resignation from the Central Railway in terms of the Central

Railway's letter dated 28th July, 2008, with effect from 24 th July,

2008, the petitioner has been permanently absorbed in KRCL

with effect from 25th July, 2008. This communication was also

accepted by the petitioner and without any protest. The

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petitioner himself tendered resignation from the services of the

Central Railway. Thus, as a deputationist and earning only an ad-

hoc or stopgap promotion, the petitioner knew that he stands

nowhere. He would have either to go back to the Central Railway,

but if wants promotion in KRCL, the permanent absorption was

essential and necessary. The permanent absorption could not

have come through unless the petitioner tenderes his resignation

from the Central Railway. Thus, the master-servant relationship

subsists till the date of permanent absorption in the KRCL. It is

the petitioner who makes a capital of the invitation to come for

negotiations. If the petitioner was invited for negotiations by his

employer (KRCL) that was also conditional upon his tendering

the resignation.

12. It is in these circumstances, the note at page 32 would have

to be read. We cannot read that in isolation. All the

recommendations were to protect the petitioner's pay. If possible,

also to consider whether his seniority can be protected. However,

for promotion in the KRCL, the petitioner's substantive

appointment can be reckoned only from the permanent

absorption. The permanent date of absorption being as above, we

do not think that the petitioner can derive any benefit from the

minutes of the meeting of the Board of Directors, which we have

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reproduced above. Pertinently, the Board meeting was also on

16th January, 2008. Before that date, the petitioner had applied,

by his letter dated 15th November, 2007 addressed to the KRCL,

that he be permanently absorbed in the services of the KRCL.

That is how the Board took up the issue for consideration. The

Board decided that the absorption can be done of those

employees, who are on deputation by giving upto two higher

grades. The offer of two higher grades can also be offered to the

deputationists on need basis. The Directors' committee will

review the case of higher grade before sanction by the Managing

Director. When absorbed with two higher grades in KRCL,

seniority shall be fixed as per DPE guidelines. That is how the

seniority would have to be reckoned. On that basis, we do not

think that the petitioner can claim that his promotion, should be

reckoned from 26th March, 2005 i.e. prior to his absorption on

permanent basis in the KRCL.

13. We do not think that the petitioner deserves any such relief.

All the more when we find his conduct entirely blameworthy. He

has turned around and questioned the documents which he

accepted and derived benefit from more than five years. He

never questioned by a single communication, far from accepting

the benefits under protest, that his claim for promotion should be

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consistent with his joining the KRCL as deputationist. He may

also have been promoted on ad-hoc or stopgap basis, but that

should also be treated as a regular promotion was never his

request until filing of this petition. In these circumstances, when

he was accused of trying to gain promotion by extra

constitutional method, all the more we are not inclined to grant

any relief. The stand in the affidavit in reply does not appear to

be inconsistent, much less contrary to the policies of the KRCL.

14. In the light of the view taken above, we do not think that we

are required to refer to the compilation compiling the promotional

policies of the KRCL. Once everything that the petitioner is

indulging is an afterthought then we are not inclined to grant any

relief to the petitioner. Consequently, the writ petition is

dismissed. Rule is discharged, however, there would be no order

as to costs.

(SMT. BHARATI H. DANGRE, J.) (S.C.DHARMADHIKARI, J.)

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