Kerala High Court

Susan Varghese vs Cochin Port Authority on 13 June, 2023

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
              THE HONOURABLE MR.JUSTICE N.NAGARESH
 TUESDAY, THE 13TH DAY OF JUNE 2023 / 23RD JYAISHTA, 1945
                    WP(C) NO. 13036 OF 2023
PETITIONER:

         SUSAN VARGHESE,
         AGED 59 YEARS
         W/O.P.G.JAMES, ASSISTANT SECRETARY GR.I (OL),
         COCHIN PORT AUTHORITY, HINDI SECTION, GENERAL
         ADMINISTRATION DEPARTMENT, W/ISLAND, COCHIN,
         ERNAKULAM 682009 RESIDING AT JES VILLA, 30/1419-
         D, NAVAMI GARDENS, PONNURUNNI, VYTTILA P.O.
         COCHIN, PIN - 682 019.

         BY ADVS.
              KALEESWARAM RAJ
              THULASI K. RAJ
              APARNA NARAYAN MENON
              CHINNU MARIA ANTONY
              SILPA SREEKUMAR
              MANJIMA


RESPONDENTS:

    1    COCHIN PORT AUTHORITY,
         REPRESENTED BY THE CHAIRMAN, COCHIN PORT
         AUTHORITY WILLINGTON ISLAND, KOCHI-682009,
         PIN - 682 009.

    2    BOARD OF AUTHORITIES
         COCHIN PORT AUTHORITY REPRESENTED BY THE
         CHAIRMAN, COCHIN PORT AUTHORITY WILLINGTON
         ISLAND, KOCHI, PIN - 682 009.

    3    THE CHAIRMAN,
         COCHIN PORT AUTHORITY, WILLINGTON ISLAND, KOCHI,
         PIN - 682 009.
 W.P(C) No.13036 of 2023
                                  2

    4      DEPUTY CHAIRMAN
           COCHIN PORT AUTHORITY, WILLINGTON ISLAND, KOCHI,
           PIN - 682 009.

    5      THE SECRETARY,
           COCHIN PORT AUTHORITY, , WILLINGTON ISLAND,
           KOCHI, PIN - 682 009.

    6      UNION OF INDIA ( SOUGHT TO BE IMPLEADED )
           REPRESENTED BY THE SECRETARY TO GOVERNMENT,
           DEPARTMENT OF EXPENDITURE (MINISTRY OF FINANCE)
           3RD FLOOR, JEEVAN DEEP BUILDING SANSAD MARG NEW
           DELHI-110 001 (R6 IS IMPLEADED AS ADDITIONAL 6TH
           RESPONDENT BY ORDER DATED 13.06.2023 IN I.A
           NO.2/2023)
    7      SECRETARY TO GOVERNMENT(SOUGHT TO BE IMPLEADED)
           DEPARTMENT OF EXPENDITURE (MINISTRY OF FINANCE)
           3RD FLOOR, JEEVAN DEEP BUILDING
           SANSAD MARG, NEW DELHI-110 001 (R7 IS IMPLEADED
           AS ADDITIONAL 7TH RESPONDENT BY ORDER DATED
           13.06.2023 IN I.A NO.2/2023)
           BY ADVS.
                GOPIKRISHNAN NAMBIAR M
                KALEESWARAM RAJ
                K.JOHN MATHAI(K/413/1984)
                JOSON MANAVALAN(J-526)
                KURYAN THOMAS(K/131/2003)
                PAULOSE C. ABRAHAM(MAH/58/2006)
                RAJA KANNAN(K/356/2008)



OTHER PRESENT:

           ISAAC THOMAS-SC, COCHIN PORT TRUST


THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
13.06.2023,    THE   COURT   ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
 W.P(C) No.13036 of 2023
                                 3

                           JUDGMENT

Dated this the 13th day of June, 2023

The petitioner is working as Assistant Secretary

under the Cochin Port Authority. The grievance of the petitioner

is that inspite of her qualifications, eligibility and completion of

qualifying service for promotion as Senior Assistant Secretary

and inspite of availability of a vacancy which arose on

20.06.2019, the petitioner is not promoted. The petitioner is

going to retire from service on 31.07.2023.

2. The counsel for the petitioner urged that five years

service in the post of Assistant Secretary is required for

promotion as Senior Assistant Secretary. The petitioner

completed five years service on 02.09.2019. Admittedly, going

by Ext.P3 Regulations, the petitioner satisfies the eligible

qualification and eligibility condition for promotion to the post of

Senior Assistant Secretary. The delay in making promotion

when the petitioner is on the verge of her retirement, is highly

illegal and arbitrary.

W.P(C) No.13036 of 2023

3. Standing Counsel entered appearance on behalf of

the respondents and resisted the writ petition. The Standing

Counsel submitted that as per Ext. R1(b) Office Memorandum

dated 12.04.2017 issued by the Department of Expenditure,

Ministry of Finance, all posts except newly created posts, kept

in abeyance or remaining vacant for a period of more than two

years in any Ministry/ Department/ Attached Office/ Subordinate

Office/ Statutory Body, would be considered as deemed

abolished unless an exemption has been given at the time of

sanctioning the post. The post of Senior Assistant Secretary

which felt vacant on 20.06.2019 remains vacant for three years

and it now stands abolished in view of Ext.R1(b) Office

Memorandum dated 12.04.2017. Though the petitioner

completed his qualifying service on 02.09.2019, the DPC met

for promotion only in the year 2022, following Ext.P9

representation. The respondents are therefore not in a position

to effect promotion of the petitioner. W.P(C) No.13036 of 2023

4. I have heard the learned counsel for the petitioner,

the learned Standing Counsel representing the Cochin Port

Authority and the learned Deputy Solicitor General of India

representing additional respondents 6 and 7.

5. The pleadings in the writ petition would show that the

petitioner completed five years qualifying service as Assistant

Secretary for the promotion to the post of Senior Assistant

Secretary, on 02.09.2019. DPC convened in the year 2022 has

cleared the name of the petitioner. The petitioner satisfies all the

qualifications and eligibility conditions for promotion to the post

of Senior Assistant Secretary prescribed under Ext.P3.

6. In such circumstances it would be highly unjust to

deny promotion to the petitioner as Senior Assistant Secretary

on the ground that the post stands automatically abolished in

view of Ext.R1(b). Ext.R1(b) Office Memorandum reads as

follows;

"a. All posts, except newly created posts, kept in abeyance or remaining vacant for a period of more than 2 years in any Ministry/ Department/ Attached office/ Subordinate office/ Statutory body, would be considered W.P(C) No.13036 of 2023

as 'deemed abolished' unless an exemption has been given at the time of sanctioning the post.

b. A post falling into the category of 'deemed abolished' cannot be filled up prior to obtaining its 'revival' from Department of Expenditure.

c. Statutory posts, the name and level/ pay scale of which is specifically provided for in an Act of Parliament, are exempted from falling in the category of 'deemed abolished' on remaining vacant for a period of more than 2 years. Only the posts mentioned in Statute may be considered Statutory, not their support staff.

d. Newly created posts (posts which have been sanctioned recently by Department of Expenditure/ Cabinet), which do not have RRs would fall under the category of 'deemed abolished' after a period of 3 years from the date of creation unless it is clarified that this relaxation would not be applicable to those newly created posts which have existing RRs.

e. Revival of posts would be considered in rare and unavoidable circumstances only.

f. Proposals for revival of posts may be referred to this Department on file, along with the prescribed checklist issued by this Department (Annexure-II). Separate checklist may be prepared for each post. Proposals received without proper checklist would not be considered."

7. Ext.R1(b) Office Memorandum would show that the

respondents still can make application to the Department of

Expenditure for reviving the post which deem to stand

abolished.

W.P(C) No.13036 of 2023

In view of the afore facts, the writ petition is disposed

of directing the respondents to provisionally promote the

petitioner as Senior Assistant Secretary within a period of two

weeks. The respondents shall make application to the

Department of Expenditure, Ministry of Finance for revival of the

post of the Senior Assistant Secretary which is deemed

abolished and pursue the matter. Such steps shall be taken

within a period of one month positively.

Sd/-

N.NAGARESH AMR JUDGE W.P(C) No.13036 of 2023

APPENDIX OF WP(C) 13036/2023

PETITIONER'S EXHIBITS

Exhibit P1 TRUE COPY OF ORDER NO. A9/H.O/2014-S DATED 01.09.2014 OF THE 5 TH RESPONDENT.

Exhibit P2 TRUE COPY OF ORDER NO.

A9/PROBATION/2014/S DATED 02.09.2019.

Exhibit P3 TRUE COPY OF THE RELEVANT PAGE OF COCHIN PORT TRUST EMPLOYEES (RECRUITMENT, SENIORITY, AND PROMOTION) REGULATIONS, 2010.

Exhibit P4 TRUE COPY OF THE REQUEST SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT DATED 18.03.2020.

Exhibit P5 TRUE COPY OF THE REPRESENTATION DATED 26.05.2020 SUBMITTED BY THE PETITIONER BEFORE THE CHAIRPERSON.

Exhibit P6 TRUE COPY OF THE REPLY GIVEN BY THE 5 TH RESPONDENT VIDE ORDER NO.A9/PUBLIC GRIEVANCE/2020/S DATED 29.06.2020 TO THE PETITIONER.

Exhibit P7 TRUE COPY OF THE LETTER NO.PR-

12012/14/2013-PE- 1 DATED 21.04.2020.

Exhibit P8 TRUE COPY OF THE SANCTIONED AGENDA OF THE MEETING OF THE BOARD OF TRUSTEES OF THE COCHIN PORT TRUST DATED 28.05.2020 WITH THE COMPARATIVE STATEMENT OF THE PROPOSED PROVISION.

Exhibit P9 TRUE COPY OF THE REPRESENTATION DATED 24.08.2022 SUBMITTED BY THE PETITIONER BEFORE THE CHAIRPERSON.

W.P(C) No.13036 of 2023

Exhibit P10 TRUE COPY OF THE FAQ ON RECRUITMENT RULES NO. NO.AB.14017/13/2013-ESTT.(RR) (1349) BY THE GOVERNMENT OF INDIA, MINISTRY OF PERSONAL PG AND PENSION (DEPARTMENT OF PERSONAL AND TRAINING).

Exhibit P11 TRUE COPY OF THE REPRESENTATION DATED 01.03.2023 SUBMITTED BY THE PETITIONER BEFORE THE 5TH RESPONDENT.

Exhibit P12 TRUE COPY OF RELEVANT PAGES OF THE MINUTES OF PROCEEDINGS OF ORDINARY MEETING 3 BOARD OF TRUSTEES OF COCHIN PORT TRUST DATED 11.11.2021.

RESPONDENTS' EXHIBITS

Exhibit R1(a) True copy of the communication dated 01.07.2022 issued by the ministry of port,shipping and Waterways, Govt. of india to Chairpersons of all Major Port Trusts.

Exhibit R1(b) True copy of the covering letter dated 13.04.2017 along with the OM dated 12.04.2017 baring no.

7(1)E.Coord-I/2017 issued by the Department of Expendiiture, Ministry of Finance, Govt. of India.

Exhibit R1(c) True copy of the letter dated 11.03.2019 issued by the 5th respondent to the Secretary to the Govt., Ministry of Shipping.

Exhibit R1(d) True copy of the Letter No. C-