Sathianarayanan T.V vs Union Of India
2022 Latest Caselaw 6727 Ker

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
                THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
         TUESDAY, THE 14TH DAY OF JUNE 2022 / 24TH JYAISHTA, 1944
                          WP(C) NO. 6167 OF 2022
PETITIONER:

              SATHIANARAYANAN T.V
              AGED 54 YEARS
              NOW WORKING AS SR. VERY HIGH FREQUENCY OPERATOR, MARINE
              DEPARTMENT, COCHIN PORT TRUST, WILLINGDON ISLAND,
              COCHIN - 682009, RESIDING AT THERAMBATH HOUSE, P.O,
              THRITHELLOOR WEST, TRICHUR DISTRICT, KERALA - 680619.

              BY ADV SUNIL JACOB JOSE



RESPONDENTS:

     1        THE UNION OF INDIA
              REPRESENTED BY THE SECRETARY, MINISTRY OF SHIPPING,
              (PORTS WING), TRANSPORT BHAVAN NO.1, PARLIAMENT STREET,
              NEW DELHI - 110001.

     2        COCHIN PORT TRUST,
              REPRESENTED BY ITS SECRETARY, ADMINISTRATIVE OFFICE,
              COCHIN PORT TRUST, WILLINGDON ISLAND, COCHIN - 682009.

     3        THE SECRETARY,
              COCHIN PORT TRUST, ADMINISTRATIVE OFFICE, WILLINGDON
              ISLAND, COCHIN - 682009.

              BY ADV MANU S., ASG OF INDIA




     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
14.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 6167 OF 2022                          2




                                      JUDGMENT

This writ petition is filed seeking the following reliefs:-

i. To call for the records leading to Ext.P8 and issue a writ of certiorari or any other appropriate writ order or direction and quash Ext.P8, being non-speaking and as a result of non- application of mind to the fact aspects projected through the recommendations by the Afzulpurkar Committee report and recommendations through Ext.P4, P5 & P6 of the 3 rd respondent, for grant of up-gradation to the petitioner;

ii. Issue a writ of mandamus or any other appropriate writ order or direction to the respondents to immediately implement the Afzulpurkar Committee report granting up- gradation of the post of Sr. VHF Operator, held by the petitioner;

iii. Issue a writ of mandamus or any other appropriate writ order or directing the 1st respondent to consider and pass a speaking order on Ext.P9, in the light of Afzulpurkar Committee report and recommendations through Ext.P4, P5 & P6 of the 3rd respondent, de-hors Ext P8, within a time frame to be fixed by this Hon'ble Court;

iv. To declare the commission and omission on the part of the respondents as arbitrary and illegal and hold the petitioner eligible for grant of up-gradation in the post of Sr.VHF Operator and to direct the respondents to grant up-gradation

of the post of Sr.VHF Operator, held by the petitioner.

2. Heard the learned counsel for the petitioner, the

learned ASGI appearing for 1 st respondent and the learned counsel

appearing for respondents 2 and 3.

3. It is submitted by the learned counsel for the petitioner

that the petitioner had joined the Cochin Port Trust as a Very High

Frequency Operator (VHF Operator) in May,1994 and continued in

the post till the year, 2006. In 2006, he was promoted as Senior

VHF Operator and had been continuing in the said post. It is

stated that all other employees of the 2nd respondent had been

granted promotions or at least up-gradations. However, on the

ground that there is no promotion post, the petitioner had been

stagnating as Senior VHF Operator, since 2006.

4. It is submitted that a committee was constituted by the

1st respondent to study the grievances of the staff in the various

major Ports in the country. The committee submitted

recommendations, including recommendation for up-gradation of

several posts including that of Senior VHF Operator. The matter

was taken up before the respondents for implementation,

however, Ext.P8 communication has been issued to the Port Trust

stating that in the case of VHF Operator alone, the proposal for

up-gradation has not been acceded to.

5. The learned counsel for the petitioner submits that

Ext.P8 is a communication from the under Secretary to the

Government to the Chairperson of the Cochin Port Trust which

discloses absolutely no reason for singling out the post held by the

petitioner alone for denial of the benefit of up-gradation as

recommended in Ext.P3. It is submitted that the said

communication cannot stand in the way of proper consideration of

the request made by the petitioner for up-gradation on the

strength of the recommendations of the committee as evident

from Ext.P3. It is further contended by the learned counsel for the

petitioner that even in cases where financial implications were

involved, like in the cases of Marine Foreman, the up-gradation

had been allowed, as is evident from Ext.P2. It is therefore

contended that Ext.P7 request made by the petitioner before the

2nd respondent is liable to be considered by the 1 st respondent and

appropriate directions are liable to be issued upgrading the post.

6. A statement has been placed on record by the ASGI on

behalf of the 1st respondent. It is submitted that several

representations had been received with regard to the

implementation of the one-man committee report by the Port

Trust as well as the 1st respondent. It is submitted that the

proposal was forwarded to the Ministry as per Ext.P4, but the

same was not acceded to by the Ministry. It is contended that the

two posts in the category of Senior VHF Operator are the posts

mentioned in the committee report ie. (i) Signaller cum VHF

Operator and (ii) Senior VHF Operator and not two posts of

Senior VHF Operator, as stated by the petitioner. It is contended

that the committee report was confined to change in scale of pay

without fixation and option benefits. It is further contended by

the learned ASGI that it is not in all circumstances that

administrative decisions have to state the reasons in the orders

passed by appropriate authorities in exercise of their executive

powers. Relying on a decision of the Apex court in National

Highways Authority of India and Ors v. Mandhukar Kumar and Ors

[2021 SCC Online SC 791] it is contended that if the decision is

informed by reasons, it is not imperative that the reasons must be

disclosed in the communications of the executive authorities.

7. I have considered the contentions advanced on either

side, it is not in dispute before me that Ext.P3 recommendation of

the one-man committee included the up-gradation of the posts of

VTMS Operators and VHF Operators as well. On the said basis

Ext.P4 letter had been forwarded by the 2nd respondent for up-

gradation of the posts, Ext.P5 letter dated 26/6/2019 had also

been duly forwarded. The petitioner had also approached the Port

Trust with Ext.P7 request. However, by Ext.P8 which is a

communication addressed to the Chairperson of the Cochin Port

Trust, the request has been rejected without stating any reasons

whatsoever. Apart from being a cryptic order, which is not

informed by any reason, Ext.P8 also does not answer the

requirements of an executive order issued by the Union and is

only in the nature of a communication issued by the Under

Secretary to the Government to the Chairperson of the Cochin

Port Trust. The decision relied on by the learned ASGI can also

have no application in the instant case since the executive

decision referred to therein was with regard to the location of a

toll plaza on a stretch of Highway and was not with regard to any

request made by an individual employee.

In the above view of the matter, I am of the opinion that a

communication in the nature of Ext.P8 cannot govern the issue

where there has been a recommendation by the one-man

committee and the petitioner has approached the respondents

seeking the implementation of the same. In the above view of the

matter, this writ petition is disposed of with a direction to the 2 nd

respondent to forward Ext.P7 representation made by the

petitioner to the 1st respondent for a proper consideration. The 1st

respondent shall take up the representation and consider and pass

orders on the same, untrammelled by anything stated in Ext.P8.

Appropriate reasoned orders shall be passed in consultation with

the 2nd respondent as well within a period of two months from the

date of receipt of a copy of this judgment.

Sd/-

ANU SIVARAMAN JUDGE ska

APPENDIX OF WP(C) 6167/2022

PETITIONER EXHIBITS

Exhibit P1 PHOTOCOPY OF THE RELEVANT PORTION OF THE RECORD DETAILING THE DUTIES AND RESPONSIBILITIES OF THE SR. VHF OPERATOR.

Exhibit P2 PHOTOCOPY OF THE LETTER DATED 8.03.2004 OF THE COCHIN PORT EMPLOYEES ORGANISATION.

Exhibit P3 PHOTOCOPY OF THE RELEVANT PORTION OF THE AFZULPURKAR COMMITTEE REPORT.

Exhibit P4 PHOTOCOPY OF THE LETTER DATED 18.12.2018 OF THE 3RD RESPONDENT.

Exhibit P5 PHOTOCOPY OF THE LETTER DATED 26.06.2019 OF THE 3RD RESPONDENT.

Exhibit P6 PHOTOCOPY OF THE LETTER DATED 25.11.2019 OF THE 3RD RESPONDENT TO THE 1ST RESPONDENT.

Exhibit P7 PHOTOCOPY OF THE REPRESENTATION DATED 22.01.2011 OF THE PETITIONER BEFORE THE 2ND RESPONDENT.

Exhibit P8 PHOTOCOPY OF THE COMMUNICATION OF THE 1ST RESPONDENT DATED 20.07.2021 ADDRESSED TO THE 2ND RESPONDENT.

Exhibit P9 PHOTOCOPY OF THE LETTER DATED 31.10.20221 OF THE COCHIN PORT EMPLOYEES SANGH.