IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 2ND JUNE 2010 / 12TH JYAISTHA 1932 WP(C).No. 25089 of 2007(J) -------------------------- PETITIONER(S): --------------- P.BALACHANDRAN PARAKATTIL, EXCISE CIRCLE INSPECTOR (RETD) NOW RESIDING AT "LAKSHMI KORUNA", POOJA NAGAR, PUTHUR, PALAKKAD. BY ADV. SRI.S.EASWARAN RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, EXCISE AND PROHIBITION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE COMMISSIONER OF EXCISE, COMMISSIONERATE OF EXCISE, THIRUVANANTHAPURAM. GOVERNMENT PLEADER SRI.NANDAKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 25089 of 2007 APPENDIX EXHIBITS EXT.P1- COPY OF SELECT LIST OF PREVENTIVE OFFICERS/CLERKS OF EXCISE DEPARTMENT FOR PROMOTION AS EXCISE INSPECTOR FOR THE PERIOD FROM 17.1.68 TO 9.10.85 PUBLISHED IN THE NOTIFICATION NO.XE2-24163/95 DATED 18.7.96 EXT.P2- COPY OF COUNTER AFFIDAVIT 26TH NOVEMBER, 02 FILED BY THE RESPONDENTS IN O.P.16264/96 EXT.P3- COPY OF REPLY AFFIDAVIT EXCLUDING THE EXHIBITS DATED 3RD DECEMBER 2006 FILED BY THE PETITIONER IN O.P.16264/96 EXT.P4- COPY OF AFFIDAVIT DATED 15TH JANUARY, 2007 FILED ON BEHALF OF THE RESPONDENTS IN O.P.16264/96 EXT.P5- COPY OF JUDGMENT DATED 16TH JANUARY 2007 IN O.P.16264/96 EXT.P6- ORDER DATED 29TH MARCH 2007 IN I.A.3423 OF 2007 IN O.P.16264/96 EXT.P7- COPY OF ORDER NO.XD1-26365/2006 DATED 23.4.07 ISSUED BY THE JOINT EXCISE COMMISSIONER EXT.P8- COPY OF JUDGMENT DATED 19TH JUNE, 2007 IN CON.CASE NO.384 OF 2007. (TRUE COPY) P.A TO JUDGE ANTONY DOMINIC, J ------------------- W.P.(C).25089/2007 -------------------- Dated this the 2nd day of June, 2010 JUDGMENT Petitioner joined service as Preventive Officer of Excise on 16.8.1980 and retired from service on 28.2.2007 as Circle Inspector of Excise. 2. After joining as Preventive Officer, petitioner got test qualified on 8.5.1984 for promotion to the post of Excise Inspector. Ext.P1 is the select list published on 18.7.1996 and the petitioner was included only in the select list for 1996. 3. On 11.1.1984, eight persons were promoted to the post of Excise Inspectors. According to the petitioner, they were not eligible for promotion in 1984 and challenging their eligibility to be included in the select list and seeking his inclusion as far as order to promote him, he filed O.P.16264/1996. Respondents resisted the contentions of the petitioner by filing Ext.P2 counter affidavit in which they took up the contention that the aforesaid persons, who were included in the above O.P as respondents 3 to 10, were test W.P.(C).25089/07 2 qualified. Matter was considered and the case was disposed of by Ext.P5 judgment. In Ext.P5, this Court found that the aforesaid respondents 3 to 10 in O.P.16264/1996 were not test qualified to be included in the select list for the year 1984. On that basis, this Court disposed of the O.P in the following terms. “That being so, clearly respondents 3 to 10 have passed the obligatory test only in the 5th chance. Therefore, they could have been considered for inclusion in the select list only subsequent to passing of their test and not in the 1984 select list. If they are excluded from the field of choice, then, certainly the petitioner would be entitled to be considered for inclusion in the 1984 select list, which fact has not been disputed in the affidavit. That being so, I am of opinion that the petitioner should have been considered for inclusion in the select list for the year 1984. It is submitted before me that respondents 3 to 10 are no longer in service, they having retired from service on superannuation. However, since the petitioner has not been considered for inclusion in the 1984 select list, although he was eligible for no fault of his, I am of opinion that since he was actually entitled to be considered inclusion in the W.P.(C).25089/07 3 1984 select list, he should be given notional benefits of fixation of pay on that basis, if found suitable otherwise. In the above circumstances, the original petition is disposed of with the following directions. A Review Departmental Promotion Committee constituted for the purpose shall consider the case of the petitioner for inclusion in the 1984 select list on the basis that respondents 3 to 10 were not eligible to be considered to be included in the 1984 select list. If he is found to be entitled to be included in the select list for 1984, he should be given promotion with effect from the date when the vacancy relating to 1984 select list arose and he should be given notional fixation in the promoted post with effect from that date and all further dates of promotion of the petitioner shall also be revised accordingly. However, I make it clear that the petitioner would not be entitled to monetary benefits arising therefrom till today. The entire exercise shall be completed before the petitioner retires from service on 28.2.2007.” 4. After getting time for compliance of the directions in Ext.P5 extended by Ext.P6 order, Ext.P7 order was issued. In this order, it is stated that a Review Departmental Promotion Committee (Lower) W.P.(C).25089/07 4 meeting was held as directed in the judgment and that the Committee considered the case of the petitioner in detail. It is further stated that though respondents 3 to 10 were ineligible, a large number of Officers who were senior to the petitioner and had acquired test qualification before him, were included in the select list long after the year 1984. On this basis, petitioner's claim for inclusion in the 1984 select list was held unsustainable. Details pertaining to eight such Officers is also mentioned in this order. On that basis, petitioner was held ineligible for inclusion in the 1984 select list and his claim was accordingly rejected. It is challenging Ext.P7 order, the writ petition has been filed. 5. Learned counsel for the petitioner contended that the petitioner could not have been deprived of the fruits of the judgment. On the other hand, the learned Government Pleader referring to the pleadings, contended that having regard to the fact that in 1984, there were persons senior to the petitioner, who had acquired test qualification earlier and were not included in the 1984 select list, petitioner could not have claimed inclusion in the 1984 select list. W.P.(C).25089/07 5 6. Admittedly, the grievance of the petitioner was regarding the inclusion of respondents 3 to 10 in O.P.16264/1996, in Ext.P1 select list in the year 1984. He challenged their inclusion and this Court upheld his claim in Ext.P5 judgment. Thereafter this Court directed the respondents to consider the claim of the petitioner. It is this claim of the petitioner which is rejected by Ext.P7 on the ground that there were certain other Officers who were senior to the petitioner and had acquired test qualification earlier than him. 7. In my view, the contention now raised by the respondents is unsustainable. If these senior Officers were also entitled to be included in the select list for the year 1984 or thereafter, they ought to have agitated their grievances before the Departmental authorities or before this Court, which was not done. On the other hand, they resigned to the reality of their exclusion from the select list and accepted the same. Therefore, even if they had any right, they slept over such right or in other words, allowed the grass to grow under their feet. Even if such employees were senior to the petitioner and had acquired test qualification earlier than the W.P.(C).25089/07 6 petitioner, that is not a reason to deny the petitioner the fruits of Ext.P5 judgment. If so, the reasoning adopted in Ext.P7 is unsustainable. Therefore, the petitioner is entitled to the benefit of Ext.P5 judgment. 8. In view of the above, I quash Ext.P7 and direct the respondents to consider the claim of the petitioner, for inclusion in the select list for the year 1984 in the place of respondents 3 to 10 in O.P.16264/1996, ignoring the fact that there were other senior Officers who had acquired test qualification earlier than the petitioner. Orders in this behalf shall be passed as expeditiously as possible. Benefits due to the petitioner shall also be disbursed. Entire process shall be completed within two months of production of a copy of this judgment. Writ petition is disposed of as above. ANTONY DOMINIC, Judge mrcs