NIROOP RAJ Vs. COCHIN PORT TRUST

JUDGEMENT

(1.) This writ petition is filed challenging Exhibit P9 order by which the promotions granted to the petitioner to the posts of Shed Writer, Tally Supervisor, Shed Foreman and Assistant Wharf Superintendent were cancelled and the petitioner was directed to be reverted to the post of Shed Clerk. The learned counsel for the petitioner submits that the petitioner was appointed as Shed Clerk which is a Class III post in the Wharf establishment under the first respondent by Exhibit P1 order dtd. 20/7/2011. The appointment of the petitioner was under the dying in harness Scheme and the order specifically states that he will be on probation for a period of two years from his appointment and that he should produce the enclosed declaration form with regard to his marital status duly signed at the time of joining duty. The petitioner joined duty pursuant to Exhibit P1. His probation was declared. Thereafter by Exhibit P2 order, he was promoted as Shed Writer with effect from 21/7/2014. By Exhibit P3 dtd. 30/6/2016, the petitioner was promoted as Tally Supervisor on regular basis with effect from 21/7/2016 in an existing vacancy. Thereafter, he was promoted as Shed Foreman on regular basis in an existing vacancy with effect from 21/7/2018 by Exhibit P4 order and as Assistant Wharf Superintendent with effect from 21/7/2020 by Exhibit P5 order.

(2.) It is submitted that as per Exhibit P6, Cochin Port Trust Employees (Recruitment, Seniority and Promotion) Amendment Regulations 2015, a minimum educational qualification of graduation is prescribed for appointment to the post of Shed Clerk under the Traffic Department. The regulation provides that the dependents of employees in service as on 26/9/1998 and those who died in harness/invalidated will be exempted from the purview of change in qualification of graduation. However, these dependents, when employed, would be required to acquire graduation before promotion to the next cadre and an undertaking to that effect should be obtained from them and this should be specifically mentioned in the appointment order. It is submitted that presumably because the amendments were notified only as per Exhibit P6 on 22/3/2016, and the petitioner was appointed long before the said date, the petitioner was never informed that he did not have the prescribed qualification for the post or that he would have to acquire the said qualification for promotion to the next cadre as is evident from Exhibit P1 appointment order.

(3.) The petitioner's probation was declared and he was duly promoted to the higher posts on a regular basis. However, Exhibit P7 notice was issued, informing the petitioner that he was exempted from acquiring the qualification of graduation for his initial appointment, but he had to acquire graduation before the next promotion and therefore the promotions granted to him to the posts of Shed Writer, Tally Supervisor, Shed Foreman and Assistant Wharf Superintendent were illegal and liable to be recalled. The petitioner submitted Exhibit P8 reply stating that he was never informed of any necessity to acquire the qualification of graduation and that since the qualification was prescribed only by Exhibit P6 amendment, which was notified on 22/3/2016, the petitioner stood exempted from the requirement as he had already been promoted to the higher post as on the date of the amendment of the Rules. It is further contended that even if the facts stated in Exhibit P7 are accepted in toto, the employee would have to acquire the qualification only at the time of promotion to the next cadre and since all the posts to which the petitioner had been granted promotions were Class III posts included in the clerical cadre, he would be required to acquire the qualification only when he aspires for promotion to the supervisory cadre i.e, Class II posts. The said objection of the petitioner was considered and Exhibit P9 order was passed stating as follows:-