IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR FRIDAY, THE 13TH JUNE 2008 / 23RD JYAISHTA 1930 WP(C).No. 16240 of 2006(G) -------------------------- PETITIONERS: ------------ 1. E.BABY, MANAGER, DISTRICT INDUSTRIES CENTRE, GANDHINAGAR, ERNAKULAM. 2. C.SURESHKUMAR, ASSOCIATE FELLOW, INSTITUTE OF MANAGEMENT IN GOVERNMENT, TRIVANDRUM, VIKAS BHAVAN P.O., DEPUTY DIRECTOR, DIRECTORATE OF ECONOMICS, & STATISTICS, VIKAS BHAVAN, TRIVANDRUM. BY ADV. SRI.K.BABU THOMAS RESPONDENTS: ------------- 1. STATE OF KERALA, REP. BY SECRETARY TO GOVT., PLANNING AND ECONOMIC AFFAIRS DEPARTMENT, SECRETARIAT, TRIVANDRUM AND CONVENOR DEPARTMENTAL PROMOTION COMMITTEE (HIGHER) FOR DEPARTMENT OF ECONOMICS AND STATISTICS, TRIVANDRUM. 2. THE DIRECTOR, DIRECTORATE OF ECONOMICS & STATISTICS, VIKAS BHAVAN, TRIVANDRUM. 3. SRI. V.RAMACHANDRAN, DEPUTY DIRECTOR, DISTRICT OFFICE, ECONOMICS & STATISTICS, KOLLAM. BY ADV. SRI.N.SUGATHAN FOR R3 SMT.VARSHA BHASKAR FOR R3 R1 AND R2 BY GOVERNMENT PLEADER SMT. SMITHA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 APPENDIX PETITIONERS' EXHIBITS: EXT.P1 TRUE COPY OF ORDERS OF APPOINTMENT DATED 23.3.1988 AND 27.6.1988 EXT.P2 TRUE COPY OF RELEVANT PAGES OF SENIORITY LIST OF RESEARCH OFFICERS DATED 7.8.1998 EXT.P3 TRUE COPY OF G.O.RT. NO. 217/2000/PLG. DATED 9.5.2000 EXT.P4 TRUE COPY OF G.O.RT. NO. 30/2005/PLG. DATED 25.1.2005 EXT.P6 TRUE COPY OF REPRESENTATION OF THE 2ND PETITIONER DATED 31.3.2005 EXT.P7 TRUE COPY OF REPRESENTATION OF THE FIRST PETITIONER DATED 25.5.2005 EXT.P8 TRUE COPY OF JUDGMENT IN WPC 19457 OF 2005 DATED 29.6.2005 EXT.P9 TRUE COPY OF G.O.RT. NO.139/2006/PLG REJECTING EXTS. P6 AND P7 DATED 10.4.2006 EXT.P10 TRUE COPY OF G.O.P. NO. 24/98/ P & ARD DATED 24.7.1998 EXT.P11 TRUE EXTRACT OF NOTE PREPARED BY THE DPC (HIGHER) ASSIGNING DATE OF OUR PROMOTION TO ASST. DIRECTOR DATED 3.5.1999 EXT.P12 TRUE COPY OF SELECT LIST PUBLISHED SUBJECT TO THE RESULT OF W.A.NOS. 2733/1998, 243/1999 AND O.P.NO. 1330 OF 1997 DATED 16.9.1999 EXT.P13 TRUE COPY OF G.O. RT. NO.217/2000/PLG. DATED 9.5.2000 EXT.P14 TRUE COPY OF G.O.RT.NO.779/94/IR.D DATED 6.8.1994 EXT.P15 TRUE COPY OF G.O.RT. NO.200/94/PLG. DATED 18.6.1994 EXT.P16 TRUE COPY OF G.O. RT. NO. 85/96/PLG. DTED 7.3.1996 EXT.P27 TRUE COPY OF G.O.RT. NO. 30/97/PLG. DATED 20.1.1997 1ST RESPONDENT'S EXHIBITS: EXT.R1(a) TRUE COPY OF G.O.RT. 380/95/PLG. DATED 18.8.1995 EXT.R1(b) TRUE COPY OF THE NOTIFICATION. THIRD RESPONDENT'S EXHIBITS: EXT.R3(a) TRUE COPY OF LETTER DATED 19.6.1995 OF THE KPSC EXT.R3(b) TRUE COPY OF G.O.RT. NO. 380/95/PLG. DATED 18.8.1995 EXT.R3(c) TRUE COPY OF G.O.RT. NO. 511/94/PLG. DATED 18.11.1994 EXT.R3(d) TRUE COPY OF SELECT LISTS PUBLISHED IN NOTIFICATION DATED 16.9.1999 EXT.R3(e) EXTRACT OF THE PROVISIONAL SENIORITY LIST OF PERSONNEL IN THE DIRECTORATE OF ECONOMICS AND STATISTICS PUBLISHED IN ORDER DATED 26.10.1999 EXT.R3(f) TRUE COPY OF NOTIFICATION DATED 7.7.2006 EXT.R3(g) TRUE COPY OF G.O.RT. NO. 289/06/PLG. DATED 11.8.2006 TRUE COPY C.N. RAMACHANDRAN NAIR, J. -------------------------------------------- W.P.C. NO. 16240 OF 2006 -------------------------------------------- Dated this the 13th day of June, 2008 JUDGMENT Petitioners are challenging Ext.P5 select list of Joint Directors in the Department of Economics and Statistics of the State Government wherein petitioners figure at Sl.Nos. 6 and 8 respectively as against third respondent who figures at Sl.No.4 in the list. Petitioners' grievance is that if a seniority list was prepared when third respondent was directly inducted under Special Recruitment Scheme in the cadre of Deputy Director, petitioners would have stood above him, as there were vacancies. Counsel for the petitioners contended that 15 vacancies of Deputy Director arose during the period from October 1994 to June, 1995, and if those vacancies were filled up, petitioners would have got promotion at that time and third respondent who was advised for posting as Deputy Director on 19.6.1995 would have been junior to the petitioners. Consequently in the select list of Joint Directors petitioners would have got seniority over the third respondent, is their case. I heard counsel appearing for the petitioners, 2 Government Pleader and counsel appearing for the third respondent. 2. Admittedly petitioners who originally joined as Research Assistants in 1988 were promoted on provisional basis as Asst. Directors in November, 1994. They were provisionally promoted as Deputy Directors on 7.3.1996 and 26.6.1996 respectively. Later the DPC met and recommended their provisional promotion as Deputy Directors. However, the fact remains that even provisional promotion was given to the petitioners as Deputy Directors only on 7.3.1996 and 26.6.1996 respectively. Nearly one year before the petitioners' provisional promotion as Deputy Director, third respondent was appointed under the Direct Special Recruitment Scheme as Deputy Director above the petitioners on 19.6.1995. Petitioners have not questioned the appointment of third respondent under Direct Recruitment Scheme until 2005 when the select list of Joint Directors was prepared. Even though petitioners did not produce seniority list of Deputy Directors which is irrelevant for consideration of validity of select list in the higher cadre of Joint Directors, third respondent has produced Ext.R3(e) which shows that it was published on 28.10.1999, 3 wherein petitioners figure at Sl.Nos. 40 and 42 whereas the third respondent is at Sl.No. 38, that is above the petitioners. Since the contention of the petitioners is that their seniority over third respondent is lost on account of failure of the Government to fill up the vacancies in the cadre of Deputy Directors that were available during October, 1994 and June,1995, Government has filed a counter affidavit stating that only three vacancies arose during the said period. One was filled up by Smt. K. Santhakumary, who returned from another department on reversion, one post ear-marked for recruitment under Direct Recruitment Scheme was filled by third respondent and third one was filled up by a person senior to the petitioners. Counsel for the petitioners has controverted the claim of the Government about existence of vacancies in the cadre of Deputy Directors during this period that is from October, 1994 to June, 1995. No document is produced in this Court to establish the existence of vacancies contrary to the statement of Government. In any case I do not think this Court has any authority to enquire into the vacancies available in 1994 that is for the period 14 years back from now. All through third respondent 4 remained senior to the petitioners ever since his selection under the Direct Special Recruitment scheme on 19.6.1995. In fact, when the third respondent was appointed as Deputy Director, petitioners were subordinate to him as Assistant Directors and I see no reason why the petitioners did not question his recruitment in a higher cadre if they were eligible to be promoted to the vacancies then existing. Even when third respondent was appointed under Direct Special Recruitment Scheme, petitioners were free to claim other vacancies available to be filled through promotion. Not only petitioners did not question the appointment of third respondent in 1995 in a higher cadre, but petitioners have also not questioned the seniority list of Deputy Directors prepared on 26.10.1999 wherein petitioners were shown below the third third respondent in seniority. The contention of the petitioners that they were not served with copy of seniority list of Deputy Directors is prima facie unacceptable as they should be well aware of the developments in the department, which they serve. Since third respondent was appointed in a post above the petitioners in 1995, and he continued in the seniority list over the petitioners in the cadre of 5 Deputy Directors, necessarily he will be senior to the petitioners in the select list of Joint Directors, unless he is found disqualified. Petitioners have no challenge against Ext.P5 select list of Joint Directors . Counsel for the third respondent submitted that another select list was prepared on 7.7.2006, wherein third respondent is at Sl.No.1 and petitioners are at Sl.Nos. 3 and 5 respectively. Consequently petitioners and third respondent now stand promoted as Joint Directors vide Government order dated 11.8.2006. In view of the facts found above, there is no justification to interfere with the present position. W.P. is therefore dismissed. (C.N. RAMACHANDRAN NAIR) Judge kk 6