IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN TUESDAY, THE 2ND JUNE 2009 / 12TH JYAISHTA 1931 WP(C).No. 29502 of 2003(K) --------------------------------------- PETITIONER: ------------------- P.CXHANDRASEKHARA SHETTY, (RETIRED SPECIAL GRADE SECRETARY OF PANCHAYAT), PANCHAVATI-PALLATHADAKA, POST MIYAPADAVU, MANJESHWAR 671 323, KASARAGOD DISTRICT. BY ADVS. MR.M.V.BOSE, MR.VINOD MADHAVAN, SMT.NISHA BOSE. RESPONDENTS: ------------------------ 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PANCHAYATS, THIRUVANANTHAPURAM. 3. THE DEPUTY DIRECTOR OF PANCHAYATS, KASARAGOD. R1 TO R3 BY GOVT.PLEADER MR. MATHEW VADAKKEL. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. THOTTATHIL B. RADHAKRISHNAN, J. = = = = = = = = = = = = = = = = = = = = = = = = W.P.(C).No.29502 of 2003-K = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 2nd day of June, 2009. JUDGMENT 1.While working as Junior Superintendent in the Panchayat Department, the petitioner claimed that he is entitled to be promoted to the post of Special Grade Secretary of Grama Panchayat in terms of Rule 9(d) of the Kerala State and Subordinate Services Rules, 1958. His claim was on the basis that he was entitled to out of turn promotion since he possessed the required qualification of having passed the Language Test in Kannada and posts were available in the area of the State to which the promotions had to be made in terms of Rule 9(d). Complaining that his repeated requests in that regard were left unattended to by the Government, the petitioner WP(C)29502/03 -: 2 :- obtained Ext.P6 judgment. Acting on that direction, the Director of Panchayats issued Ext.P7 on 26.6.2003 holding that the petitioner was eligible for promotion on Kannada linguistic minority basis. Accordingly, it is stated that he was immediately promoted as per Ext.P8 on 30.6.2003 as Special Grade Secretary of the Badadka Grama Panchayat, on which day he also demitted office by retirement on superannuation. 2.The plea of the petitioner is that he was actually entitled to be promoted in terms of Rule 9(d) with effect from 26.5.2001 on which day a vacancy arose and that it was thereafter that the vacancies were manned by persons who did not possess the special qualification of having passed the language test in Kannada. 3.The quality of Rule 9(d) came up for consideration of this Court in Baburaj v. Government of Kerala, 2005 (2) KLT 451. It was laid down that the said rule is not a rule of WP(C)29502/03 -: 3 :- reservation, but a rule authorising the State to make an appointment, the paramount consideration being the interest of the beneficiaries of the public offices and the institutions with which they have to transact or mingle. It was also stated that the rule does not require a Government servant to stake a claim since the seniority between personnel does not get disturbed by making an appointment on the strength of Rule 9(d) of the General Rules. In that view of the matter, the declared public purpose as contained in Rule 9(d) is that the offices in the linguistic minority areas have to be manned by the persons who are qualified in that regard. With that declared policy of the Government, it is not open to permit those posts to be manned by persons who do not pass the language test in Kannada. The petitioner may be justified in stating that he has been unreasonably and illegally denied the benefit of holding a higher post from 26.5.2001 since had he been promoted, he would have enjoyed the benefit WP(C)29502/03 -: 4 :- of such service in the higher cadre, at least, for the purpose of his retiral benefits and other incidental reliefs, though he may not be entitled to be paid the pay for that post from that date since he had not discharged the duties and responsibilities attached to that post. However, the question as to whether he could be given a notional promotion with effect from 26.5.2001 is left unconsidered in Ext.P10 or any further material as available in this case, though the petitioner had made specific mention about his issue in his representations. For the aforesaid reasons, this writ petition is ordered directing that on an appropriate representation by the petitioner, the competent among the respondents will consider the question of re-fixing the notional date of promotion of the petitioner as Special Grade Secretary since if so decided, the petitioner may enjoy at least the fruits relatable to the retiral benefits. Let the needful be done following this judgment WP(C)29502/03 -: 5 :- within three months from the receipt of a representation and a copy of this judgment. THOTTATHIL B. RADHAKRISHNAN, JUDGE. Sha/050609