IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM SATURDAY, THE 3RD DECEMBER 2011 / 12TH AGRAHAYANA 1933 WP(C).No. 22350 of 2011(P) ---------------------------------------- PETITIONER(S): ------------------------- P.KRISHNA SWAMY, ASST. TOWN PLANNER, GREATER COCHIN DEVELOPMENT AUTHORITY, KOCHI-682 020, RESIDING AT KARTHIKA, B2, MAVELIPURAM, KAKKANAD. BY ADV. SMT.ANU SIVARAMAN RESPONDENT(S): --------------------------- 1. GREATER COCHIN DEVELOPMENT AUTHORITY, REPRESENTED BY ITS SECRETARY, KOCHI-20. 2. C.K.SHYAMALA, DRAFTSMAN GRADE-I, PLANNING DIVISION, GCDA, KOCHI-20. R1 BY ADV. SRI.M.K.THANKAPPAN, SC, GCDA R2 BY ADV. SRI.N.SUGATHAN SMT.M.C.BINDUMOL SRI.T.R.RAJESH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/12/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C)NO.22350/2011 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE ORDER OF THE 1ST RESPONDENT DATED 25/2/1987. P2 COPY OF THE ORDER DATED 30/3/1993 ISSUED BY THE 1ST RESPONDENT. P3 COPY OF THE SENIORITY LISTED PREPARED BY THE 1ST RESPONDENT DATED 01/4/2005. P4 COPY OF THE ORDER DATED 24/4/2006 ISSUED BY THE 1ST RESPONDENT. P5 COPY OF THE ORDER DATED 21/11/2009 ISSUED BY THE 1ST RESPONDENT. P6 COPY OF THE ORDER DATED 6/7/2010 ISSUED BY THE 1ST RESPONDENT. P7 COPY OF THE MEMO DATED 28/7/2011 ISSUED BY THE 1ST RESPONDENT. P8 COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 12/8/2011. P9 COPY OF THE OBJECTION FILED BY THE PETITIONER DATED 6/5/2005. RESPONDENT'S EXHIBITS: R2(A) COPY OF THE FINAL SENIORITY LIST AS ON 01/4/2005. R2(B) COPY OF THE PROVISIONAL SENIORITY LIST AS ON 01/1/1996. R2(C) COPY OF THE PROVISIONAL SENIORITY LIST AS ON 01/4/2005. R2(D) COPY OF THE QUERY UNDER THE RIGHT TO INFORMATION ACT. R2(E) COPY OF THE REPLY UNDER THE RIGHT TO INFORMATION ACT. R2(F) COPY OF THE RELEVANT PAGES OF THE KERALA TOWN AND COUNTRY PLANNING RULES 1962. R2(G) COPY OF THE KERALA TOWN AND COUNTRY PLANNING SERVICE RULES,2001. R2(H) COPY OF THE FILE NOTES OF THE 1ST RESPONDENT DATED 30/04/1994. /TRUE COPY/ P.S.TO.JUDGE sts C.K.ABDUL REHIM,J. ------------------------------- WP(C).NO.22350 of 2011 --------------------------------- Dated this the 3rd day of December, 2011 JUDGMENT The petitioner is seeking a declaration to the effect that he is senior to the 2nd respondent in the post of Draftsman Gr.I in the service of the 1st respondent. Inter alia he is seeking direction to the first respondent to permit him to continue in the present post of Assistant Town Planner. The dispute is with respect to inter-se seniority between the petitioner and the 2nd respondent in the cadre of Draftsman Gr.I. The petitioner is a promottee to that cadre. He joined service of the 1st respondent as Draftsman Gr.II, on 26.12.1984. The 2nd respondent is a direct recruitee in the cadre of Draftsman Gr.I, who entered in the service on 21.6.1994. Contention of the petitioner is that, his probation in the cadre of Draftsman Gr.II was declared on 17.2.1987 and he was promoted provisionally as Draftsman Gr.I on two occasions against temporary vacancies on 25.2.1987 and 18.3.1993. According to the petitioner there arose a regular vacancy in the cadre of Draftsman Gr.I with effect from WP(C)22350/2011 2 13.5.1994 consequent to promotion of one Sri. V.J.George as Assistant Town Planner and the petitioner was accommodated against that vacancy on a regular basis. It is contended that, thereafter t he continued in the cadre of Draftman Gr.I and he was given promotion to the next cadre of Asst. Town Planner on temporary basis by virtue of Exts.P4, P5 and P6 orders against different vacancies from April, 2006 onwards. When Ext.P3 final seniority list of Draftsman Gr.I was published he was treated as the senior most, and 2nd respondent was placed only in a junior position. The petitioner is due to retire on 31.3.2012. 2. Grievance of the petitioner is that the Secretary of the 1st respondent had now initiated a proceedings to assign seniority to the 2nd respondent in the cadre of Draftsman Gr.I, ignoring the fact that the petitioner continued as senior all along. Ext.P7 notice was issued calling the petitioner and the 2nd respondent for a personal hearing in the matter. The petitioner had submitted Ext.P8 representation in this regard. But it is evident that the Secretary of the 1st respondent authority is now proceeding with further steps. It is stated that the proceedings WP(C)22350/2011 3 initiated is totally illegal, unreasonable and unwarranted. Hence this writ petition filed. 3. In the counter affidavit of the first respondent it is stated that, the promotion of the petitioner on 13.5.1994 in the resultant vacancy of promotion of Sri.V.J.George, was only temporary (provisional) promotion. The 2nd respondent is a direct recruittee in the cadre of Draftsman Gr.I and she is having seniority as a regular appointee to that cadre, with effect from her date of advice. According to the 1st respondent the file relating to Ext.P3 seniority list is not traceable in the office and the said list was signed only by a Section Officer. But the seniority list of Draftsmen as on 1.1.1996 was published on 14.2.1997, in which the 2nd respondent was included to the cadre of Draftsman Gr.I whereas the petitioner was included only in the cadre of Draftsman Gr.II. It is stated that the cadre strength of Draftsman Gr.I is 9 and as per the special Rules the appointment has to be made at the ratio of 1:1 between promottees and direct recruitees. In order to maintain the ratio 1:1, 5 posts need be filled up by direct recruitment and 4 WP(C)22350/2011 4 posts by promotion from the feeder category. It is stated that the 2nd respondent had submitted a representation on 13.7.2011 claiming seniority and the 1st respondent had only provided an opportunity for a personal hearing. But the petitioner had failed to produce any documents to prove that he is senior to the 2nd respondent. 4. In a detailed counter affidavit filed by 2nd respondent it is contended that when she entered service the petitioner was only holding the post of Draftsman Gr.II. It is stated that the petitioner was holding the post of Draftsman Gr.I at that time only on the basis of temporary promotion. But the 2nd respondent was given an impression that the petitioner is senior to her. It is admitted that a seniority list as that of Ext.P3 signed by the Section Officer was circulated and the petitioner was placed in a senior position in that list. But subsequently it was revealed that there is no proof available in the service records to show that the petitioner was promoted to the post of Draftsman Gr.I. The 2nd respondent obtained Ext.R2(b) provisional seniority list published in the cadre of WP(C)22350/2011 5 Draftsman/Overseer Gr.I as on 1.1.1996, in which her name was included as serial No.10, whereas the petitioner's name was not seen included. EXt.R2(c) is another provisional seniority list published as on 1.4.2005, wherein the 2nd respondent is shown as senior to the petitioner. Sum and substance of the contention of the 2nd respondent is that, when she was advised for appointment in the cadre of Draftsman Gr.I, the petitioner was not regularised in that cadre, and therefore the 2nd respondent is senior to the petitioner. 5. While considering the rival contentions it is evident that there exist a dispute with respect to inter-se seniority between the petitioner and the 2nd respondent in the cadre of Draftsman Gr.I. From Ext.P7 it is evident that the Secretary of the 1st respondent authority had already initiated steps to resolve the dispute, after affording opportunity of hearing to both sides. It is further evident that there exist contradiction between various seniority lists published, both provisional as well as final. There is also controversy regarding the date of regular promotion given to the petitioner in the cadre of Draftsman Gr.I. For a WP(C)22350/2011 6 proper decision on the question regarding fixation of inter se seniority between the contesting parties, a consideration of the entire matter based on records pertaining to appointment, provisional promotions, date of arising of vacancies, and all other relevant aspects, is highly essential. The Secretary of the 1st respondent authority, being the controlling authority of the parties, should take a decision in this regard, at the first instance. I do not find any valid reasons for interference at this stage, since the 1st respondent has not taken any decision on the dispute. Hence I am of the view that interest of justice will be served if the parties are relegated to the decision of the Secretary of the 1st respondent. 6. Therefore the writ petition is disposed of directing the Secretary of the 1st respondent authority to consider the dispute between the petitioner and the 2nd respondent with respect to inter-se seniority in the cadre of Draftsman Gr.I, after affording reasonable opportunity to both of them to adduce materials in support of their claims and after perusal of all relevant records and after conducting personal hearing. WP(C)22350/2011 7 Needless to say that a decision in this regard shall be taken with due consideration to all the relevant records and to the vacancy position available as on the relevant dates. The Secretary of the 1st respondent authority is directed to take a decision in this regard at the earliest possible, at any rate within a period of two months from the date of receipt of a copy of this judgment. The first respondent is directed to maintain status quo with respect to position of the petitioner, till a decision is taken in this regard. C.K.ABDUL REHIM,JUDGE pmn/ WP(C)22350/2011 8 WP(C)22350/2011 9