S K NAIR Vs. SIDECO

JUDGEMENT

(1.) THE petitioner was working as Project Manager in sideco Equipment Complex conducted by the respondents. He claims that he was one of the senior-most persons in that category, and has to be promoted as deputy General Manager, as was done in the case of two of his seniors. His complaint is that without recognising his right to be promoted on the basis of seniority, the second respondent issued Ext. P5 advertisement inviting applications for appointment to the posts of Deputy General Managers under the corporation. Petitioner therefore seeks the issue of a writ of mandamus directing the respondents to frame rules relating to service conditions of the first respondent immediately, a writ of certiorari to quash Ext. P5, and a direction to the respondents to dispose of Ext. P4 representation by promoting the petitioner to the post of Deputy General Manager.

(2.) PETITIONER is a graduate, who has also acquired diploma in Automobile Engineering from the Madras Institute of Technology. That diploma is said to have been recognised as equivalent to Degree in Engineering by various Governmental and semi-Governmental Institutions and established industrial houses. He was working as Project Manager, SIDECO Auto Engineering unit, Ernakulam. He was transferred by Ext. P1 order dated 24-6-1982 to be in overall charge of four units at Trivandrum. Promotions upto the posts of Officers in the pay scale of Rs. 750/- and above, were and are even now governed by R. 10 of the Staff Regulations of the erstwhile Kerala Small Industries Corporation Ltd, which was one of the predecessors of the first respondent Corporation. The first respondent company was formed by amalgamation of the Kerala State Small Industries Corporation ltd. , and the Kerala State Employment Promotion Corporation Ltd. No regulations were, however, framed in the matter of promotion and other service conditions of employees in scales of salary above Rs. 750/ -. Posts of Deputy General managers, Technical & Marketing, were, however, filled up by promotions from the posts of Managers, and Sri. Ramamohan Nair and Sri. V. S. Raghavan, seniors to the petitioner, were so promoted as is evident from Ext. P2. One of them, Shri V. S. Raghavan, is a Diploma-holder. PETITIONER, who was otherwise qualified and was fairly senior, therefore, submitted Ext. P4 representation requesting for promotion as Deputy General Manager. It was in the meantime and without considering his request, that Ext. P5 advertisement was issued. According to the petitioner, a condition was also added in that notification excluding the Diploma-holders and persons above 45 years of age, so that the petitioner may not get appointment as Deputy General Manager pursuant thereto. It was in these circumstances that this Original Petition was filed claiming the reliefs mentioned above. In C. M. P. No. 10329 of 1984, it was ordered that appointment to the post of Deputy General Manager will be provisional and subject to the result of the O. P. In the counter affidavit filed on behalf of the respondents, it is stated, that the Corporation is not fully owned by the government and that all the Directors are not Government Officials or government nominees. Some of them are said to be non-officials, including representatives of Financial Institutions. It is also submitted that the corporation is not an authority, except for purposes of Part III of the constitution. The respondents admit that Shri. V. S. Raghavan and Shri. Ramamohan Nair who were seniors to the petitioner as Unit Managers were promoted as Deputy General Managers, and that one of them was only a Diplomate. It is, however, submitted that Shri. V. S. Raghavan has longer service in the corporation, whereas the petitioner joined the first respondent only in 1978. It is then submitted that the posts of Deputy General Managers were being filled up not only by promotion, but by direct recruitment as well. The claim of the petitioner as the senior-most Manager in the production unit is disputed by the respondents. It is also submitted that the petitioner cannot insist, as a matter of right, that he shall be promoted as Deputy General Manager. It is also submitted that the petitioner cannot seek any direction from this court, that the respondents shall frame rules governing the service conditions of its employees. It is the respondent's case that the posts which carry salary of rs. 750/- and more are not governed by the provisions of the Kerala Public services (Consultation by Corporation and Company) Rules, 1971.

(3.) THE points which arise for consideration, therefore, are: whether the petitioner can maintain this Original Petition against the corporation to claim promotion as Deputy General Manager as a matter of right? can the petitioner challenge the resolutions of the Board of Directors of the corporation in proceedings under Art. 226 of the Constitution of India? Is ext. P5 advertisement inviting applications a device adopted by the respondents to exclude the petitioner from appointment as Deputy General Manager? and, is the petitioner qualified for appointment as Deputy General Manager.