IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 4TH DECEMBER 2009 / 13TH AGRAHAYANA 1931 WP(C).No. 12720 of 2004(L) --------------------------------------- PETITIONER(S): ----------------------- 1. P.BALAN, REVENUE DIVISIONAL OFFICER, PERINTHALMANNA, MALAPPURAM DISTRICT. 2. T.BHASKARAN, DEPUTY COLLECTOR (ELECTION) COLLECTORATE, MALAPPURAM. BY ADV. MR.K.BABU THOMAS RESPONDENT(S): -------------------------- 1. STATE OF KERALA - REP. BY THE CHIEF SECRETARY TO GOVERNMENT, SECRETARIAT, TRIVANDRUM. 2. THE PRINCIPAL SECRETARY TO GOVERNMENT, GENERAL ADMINISTRATION DEPARTMENT, SECRETARIAT, TRIVANDRUM. 3. THE SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, SECRETARIAT, TRIVANDRUM. 4. THE COMMISSIONER OF LAND REVENUE PUBLIC OFFICE, TRIVANDRUM. 5. THE KERALA PUBLIC SERVICE COMMISSION, PATTOM PALACE P.O., TRIVANDRUM. 6. UNION PUBLIC SERVICE COMMISSION, REP. BY ITS SECRETARY, NEW DELHI. 7. UNION OF INDIA, REP. BY THE SECRETARY TO GOVERNMENT (PERSONNEL AND TRAINING), NEW DELHI. W.P.(C) NO.12720/2004 8. ANIL X., I.A.S., MANAGING DIRECTOR, KERALA STATE CO-OPERATIVE BANK, CO-OPERATIVE BANK TOWERS, TRIVANDRUM. 9. RANI GEORGE, I.A.S., DIRECTOR, URBAN AFFAIRS DEPARTMENT, PUBLIC OFFICE BUILDING, VIKAS BHAVAN P.O., TRIVANDRUM. 10. K.SASIDHARA, I.A.S., DIRECTOR, SURVEY AND LAND RECORDS, VAZHUTHACAUD, TRIVANDRUM. 11. T.T.ANTONY, I.A.S., DIRECTOR, TRIBAL DEVELOPMENT DEPARTMENT, TRIVANDRUM. 12. B.MOHANAN, DEPUTY COLLECTOR, L.R.COLLECTORATE, CIVIL STATION, KOLLAM. 13. SIVASANKAR M., I.A.S., DISTRICT COLLECTOR, CIVIL STATION, MALAPPURAM. 14. AJAYAKUMAR K., I.A.S., DIRECTOR, LAND ACQUISITION FOR ROAD PROJECTS, RAJADHANI BUILDINGS, KARAMANA P.O., TRIVANDRUM. 15. SHAJAHAN A., SECRETARY, STATE WOMEN'S COMMISSION, AMBIKAVILASOM, T.C.15/1489, MINCHIN ROAD, DPT JUNCTION, TRIVANDRUM. 16. BABY V.K., DEPUTY DIRECTOR, KERALA RURAL WATER SUPPLY & SANITATION, 3RD FLOOR, PTC TOWERS, TRIVANDRUM - 1. 17. S.RAVEENDRAN, ASSISTANT SECRETARY, O/O. DIRECTOR, SURVEY AND LAND RECORDS, VAZHUTHAVAUD, TRIVANDRUM. 18. C.REGHU, DEPUTY COLLECTOR (RR), KERALA TODDY WORKERS WELFARE FUND BOARD, ULLOOR, TRIVANDRUM - 11. 19. MAHTEW A.C., DEPUTY COLLECTOR, LAND REFORMS, CIVIL STATION, KANNUR. 20. MINI ANTONY, R.D.O. FORTKOCHI, ERNAKULAM. 21. JAMES A.T., COMPETENT AUTHORITY, (DEPUTY COLLECTOR ON DEPUTATION) GAS AUTHORITY OF INDIA LTD., ERNAKULAM. W.P.(C) NO.12720/2004 22. LALITHAMBIKA S., DEPUTY COLLECTOR (GENERAL), COLLECTORATE, VANCHIYOOR P.O., TRIVANDRUM. 23. K.GOPALAKRISHNA BHAT, DEPUTY COLLECTOR L.R., COLLECTORATE, CIVIL STATION, KASARAGODE. 24. THOMAS P.G., R.D.O., THIRUVALLA, PATHANAMTHITTA. 25. E.DEVADASAN, R.D.O., THALASSERY. 26. M.NANDAKUMAR, SECRETARY, KHADI & VILLAGE INDUSTRIES BOARD, VANCHIYOOR P.O., TRIVANDRUM. 27. MUHAMMED SAGIR P.S., DEPUTY COLLECTOR, (GENERAL), COLLECTORATE, CIVIL STATION, KOZHIKODE. 28. ALI ASGAR BHASHA P.M., DEPUTY COLLECTOR, (GENERAL), COLLECTORATE, CIVIL STATION, WAYANAD. 29. P.M.FRANCIS, SPECIAL DEPUTY COLLECTOR, REVENUE RECOVERY, K.S.F.E., TRISSUR. 30. K.V.MOHAN KUMAR, MANAGING DIRECTOR, BAKEL RESORTS DEVELOPMENT CORPORATION LTD., LAKSHMI NIVAS, T.C.25/359, TRIVANDRUM – 1. ADDL. 31ST RESPONDENT IMPLEADED 31. K.RAMACHANDRAN , DEPUTY COLLECTOR, (SENIOR GRADE), KERALA LAND REVENUE MANUAL LAND REVENUE COMMISSIONERATE, PUBLIC OFFICE BUILDINGS, VIKAS BHAVAN P.O., TRIVANDRUM. R1 TO R4 BY GOVT. PLEADER ADV. SRI.ALEXANDER THOMAS,SC,KPSC FOR R5 SMT.MINI R.MENON, ADDL.CGSC FOR R6 & 7 SMT.T.D.RAJALAKSHMI, FOR R6 & R7 SRI.N.SUGATHAN FOR R15 SMT.R.SEEMA FOR R15 SRI.JOHNSON P.JOHN FOR R17,18, 20, 22,23, & 26, 28 , 29 & 30 SMT.MARYKUTTY BABU FOR ADDL.R31 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.12720/2004 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE PROCEEDINGS OF THE BOATRD OF REVENUE APPOINTING THE PETITIONERS AS DEPUTY TAHSILDARS. DTD. 7.11.1994. P2:- COPY OF THE ORDER PROMOTION THE PETITIONERS AS TAHSILDARS DTD. 08.8.1990. P3:- COPY OF THE G.O.(RT) NO.4107/96/RD DTD. 21.12.1996. P3(a):- COPY OF THE G.O.(RT) NO.2707/96/RD. DTD. 18.7.1996. P4:- COPY OF THE LETTER NO.LR(SS) 15015/95 DTD. 20.6.1995. P5:- COPY OF THE COUNTER AFFIDAVIT IN OP. 776/1996 DTD. 19.7.1996. P6:- COPY OF THE G.O.(RT) NO.783/97/RD DTD. 21.10.1997. P7:- COPY OF THE REPRESENTATION OF THE IST PETITIONER DTD. 20.2.04. P8:- COPY OF THE REPRESENTATION OF THE 2ND PETITIONER DTD. 20.2.04. P9:- COPY OF THE JUDGMENT IN W.(C) NO.1146/2005. DT. 02.06.2005 P10:- COPY OF THE REPLY OF THE RESPONDENTS TO THE PETITIONERS. RESPONDENT'S EXHIBITS DT. 5.10.2005. P11:- COPY OF THE REPRESENTATION OF THE IST PETITIONER DT. 14.5.07. R15(a):- COPY OF THE JUDGMENT DTD. 4.3.1986 IN OP. 3304/85. R15(b):- COPY OF THE LETTER DTD. 10.8.1990 OF THE P.S.C. R15(c):- COPY OF THE G.O.(MS) NO.668/90/RD DTD. 6.11.1990. R15(d):- COPY OF THE G.O.(MS) NO.46/97/RD DTD. 25.1.1997 WITH EXTRACT OF THE ANNEXURE. R29(a):- COPY OF THE COMMON JUDGMENT DTD. 3.12.1992. R29(b):- COPY OF THE APPOINTMENT ORDER DT. 10.6.1993. TRUE COPY P.A. TO JUDGE tss ANTONY DOMINIC, J. ------------------------- W.P.(C.) No.12720 of 2004 (L) --------------------------------- Dated, this the 4th day of December, 2009 J U D G M E N T Among the two petitioners, the grievance in this writ petition survives only in so far as the 1st petitioner is concerned. 2. The 1st petitioner was advised and was appointed on 24/09/1984 as Deputy Tahsildar. Accordingly, he joined service on 05/12/1984. His probation was declared and later he was promoted as Tahasildar with effect from 08/08/1990. The date of promotion was later preponed to 09/05/1990. He was promoted as Deputy Collector with effect from 21/12/1996. He continued as such and retired on 31/05/2007. 3. According to him, in terms of the Kerala Civil Service (Executive) Rules, 1963 (hereinafter referred to as the Special Rules for short), only 1/5th of the substantive posts in the permanent cadre in the category of Deputy Collector shall be filled up by direct recruitment. It is stated that as against this, when Ext.P6 seniority list was published, it was revealed that 34 persons were recruited in WP(C) No.12720/2004 -2- excess of the direct recruitment quota as Deputy Collectors. As a result of this, it is stated that the petitioner could not get further promotion or placement to IAS cadre. It is in these circumstances, the petitioner filed this writ petition challenging Ext.P6, with a prayer to direct the respondents to limit the number of direct recruits to the post of Deputy Collectors in Ext.P6 to 1/5th of the posts as provided in the Special Rules, and to re-cast the seniority list on that basis. The learned counsel for the petitioner also submits that based on the seniority list so revised, the conferment of other benefits should also be reviewed. 4. The respondents have filed counter affidavits, and are resisting this prayer. According to the respondents, the recruitment of Deputy Collectors in the direct recruitment quota as reflected in Ext.P6 was well within the Special Rules. It is also pointed out that the challenge against Ext.P6 seniority list published on 21/10/1997 is highly belated. Further, it is also their contention that the petitioner's provisional promotion as Deputy Collector by Ext.P3 order dated 21/12/96 was regularised by Ext.R15(d) order dated 25/07/1997 with effect from 21/12/1996. It is stated that as WP(C) No.12720/2004 -3- against this, the direct recruits entered service during the period 1990-1993 and that the petitioner did not challenge the date from which his promotion as Deputy Collector was regularised. 5. The Special Rules provides that appointment as Deputy Collector shall be made by recruitment by transfer from the Kerala Revenue Service or by direct recruitment. Until 17/03/1994, the Rule provided that every 5th substantive vacancy arising in the category of Deputy Collector shall be reserved to be filled up by direct recruitment. This provision was substituted by GO(P) No.84/94/RD dated 17/03/1994 to the effect that 1/5th of the substantive posts in the permanent cadre in the category of Deputy Collector shall be filled up by direct recruitment. 6. As can be seen from counter affidavit, after 1978 no direct recruitment to the post of Deputy Collector was made for a long time, which led to the filing of O.P. No.3304/1985 before this Court. Ext.R15(a) is the judgment on the original petition, from which it is seen that the State had admitted that since 1978, there were 170 substantive vacancies of Deputy Collectors and that 34 of such vacancies were available for being filled up by direct WP(C) No.12720/2004 -4- recruitment. It was further stated that steps were being taken to notify the vacancies to the PSC. Accordingly, in pursuance to Ext.R15(a) judgment, the vacancies available for direct recruitment were reported and it was accordingly that the direct recruits, who are now shown by the petitioner as excess in the seniority list, were recruited and entered service during 1990-1993 period. As already seen, the Rule at the relevant time earmarked 1/5th of the substantive vacancies for direct recruits and not substantive posts, as now contended. The expressions 'posts' and 'vacancies' have different meaning. The word 'post' means an appointment, job, office or employment or a position to which a person is appointed. 'Vacancy' means an unoccupied post or office. At the relevant time, what was relevant was vacancies and not posts. If so, the petitioner's contention based on the cadre strength is erroneous and has to be rejected. From the above, therefore, it is evident that the State had admitted before this Court that 34 vacancies were available to be reported to the PSC and if in pursuance to such commitment, and the directions in the judgment, vacancies were reported and appointments were made on that basis, it cannot be WP(C) No.12720/2004 -5- now said that such appointments are illegal. 7. Apart from all these, Ext.P6 seniority list challenged in the writ petition was published on 21/10/1997. In the seniority list, the 1st petitioner is at Serial No.742 and the direct recruits are all above him. The petitioner did not file any objection to this seniority list and the first objection filed by the petitioner is Ext.P7 dated 20/02/2004. This objection is highly belated and for that reason itself it did not merit consideration. Thus, Ext.P6 seniority list has attained finality and cannot now be challenged. 8. There is also merit in the contention raised by the learned counsel for the respondents that though the 1st petitioner was regularised as Deputy Collector by Ext.R15(d) order dated 25/07/1997 with effect from 21/12/1996, he having not challenged the date from which his promotion was regularised, it is not open to him to raise any challenge at this distance of time. Although, it is contended by the learned counsel for the petitioner that Ext.R15(d) was issued at the time when O.P. No.776/1996 filed by the direct recruits was pending, I am not satisfied that the pendency of the aforesaid original petition filed by the direct WP(C) No.12720/2004 -6- recruits in any manner prevented the petitioner from challenging Ext.R15(d), or that the said reason could now be urged in justification of the delay. Therefore, the petitioner having accepted promotion with effect from 21/12/1996, cannot at this distance of time impugn the seniority of the direct recruits, who entered service during the period 1990-1993. For all these reasons, I am persuaded to think that at this distance of time, the petitioner cannot challenge Ext.P6 seniority list or seek the reliefs that are sought for. The writ petition fails and is accordingly dismissed. (ANTONY DOMINIC, JUDGE) jg