IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 5TH JANUARY 2009 / 15TH POUSHA 1930 OP.No. 6526 of 2001(B) ---------------------- PETITIONER(S): --------------- V.K.SASIDHARAN, ASST. EXE. ENGINEER, PUBLIC WORKS DEPARTMENT, SPECIAL BUILDINGS SUB DIVISION, GANDHI NAGAR P.O., KOTTAYAM. BY ADV. SRI.S.CHANDRASENAN SRI.P.K.SOMARAJAN SRI.B.RAJEEV RESPONDENT(S): --------------- 1. STATE OF KERALA, REP. BY THE COMMISSIONER & SECRETARY TO GOVT., PWD, SECRETARIAT, TRIVANDRUM. 2. THE CHIEF ENGINEER, PWD, GENERAL & ADMINISTRATION TRIVANDRUM. GOVERNMENT PLEADER SMT.K.R.DEEPA THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 05/01/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.No. 6526/2001 APPENDIX PETITIONER(S)' EXHIBITS P1. COPY OF THE GOVT. ORDER DTD.9.2.96. P2. COPY OF THE RELEVANT PAGES OF GOVT. ORDER DTD.20.6.98. P3. COPY OF THE GOVT. ORDER DTD.11.2.99. P4. COPY OF THE RELEVANT PAGES OF SENIORITY LIST. P5. COPY OF THE JUDGMENT IN O.P.NO.5005/99 OF THIS COURT. Sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== O.P.No. 6526 of 2001. ================== Dated this the 5th day of January, 2009 J U D G M E N T The petitioner entered the service of the Public Works Department of the Government of Kerala as Assistant Engineer in October, 1974. He was promoted as Assistant Executive Engineer in September, 1997. His grievance in this original petition is that his claim for promotion to the restructured post of Special Grade Assistant Executive Engineer in accordance with Ext.P1 had not been considered by the respondents. According to him, a person junior to him in the seniority list, Sri.T.P.Asokan, has been preferred to the petitioner for the purpose of further promotion overlooking the petitioner. The petitioner, therefore, seeks the following reliefs: “i) issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents to issue promotion orders to the petitioner to the post of Spl. Grade Asst. Exe. Engineer and thereafter to Exe. Engineer before he retires on superannuation. ii) issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents to promote petitioner immediately to the next higher posts which he is entitled to get as in the case of Ext.P2 and P3.” 2. A counter affidavit is filed, in which it is stated that the o.p.6526/01 2 Departmental Promotion Committee considered the petitioner for promotion to the post of Assistant Executive Engineer in 1997, 98, 99 and 2000. But he Departmental Promotion Committee did not include the petitioner in the select list for those years. He was included in the select list only in 2001 and accordingly, he was promoted. 3. Regarding overlooking of the petitioner as against Sri.T.P.Asokan, it is submitted that Sri.T.P.Asokan, though was junior to the petitioner in the cadre of Assistant Engineer, was included in the select list for promotion to the post Assistant Executive Engineer in the year 1997, whereas the petitioner was included in the year 2001 only. 4. I have heard both sides. 5. As far as the contention that the petitioner's junior Sri.T.P.Asokan was given promotion in preference to the petitioner, I am not inclined to entertain that contention since the petitioner has not chosen to challenge the select list in respect of such selection for promotion. 6. However, I find merit in another contention of the petitioner. Formerly the hierarchy of posts in the PWD was as per o.p.6526/01 3 a 5 tire system consisting of Chief Engineer, Superintending Engineer, Executive Engineer, Assistant Executive Engineer and Assistant Engineer. As per Ext.P1, because of large instances of stagnancy of Engineers in the Department, the Government decided to covert the 5 tire system into a 7 tire system consisting of Chief Engineer, Superintending Engineer, Special Grade Executive Engineer, Executive Engineer, Special Grade Asst. Exe. Engineer, Assistant Executive Engineer and Assistant Engineer, without changing the total number of posts. According to the petitioner, even before the petitioner retired from service, several of the persons in higher posts had retired from service resulting in several vacancies to which the petitioner could have been promoted as Special Grade Assistant Executive Engineer, to which he had not been considered. According to him, since 271 vacancies had actually arisen in the post of Special Grade Asst. Executive Engineer and the petitioner's seniority as per Ext.P4 list is 251, he would certainly have come within the zone of consideration for promotion, had the vacancies which had arisen on account of retirements had been filled up promptly. Nothing is stated about that in the counter affidavit. In fact going by the o.p.6526/01 4 counter affidavit, it is seen that the counter affidavit has been prepared on the basis of the 5 tire system prevailing prior to Ext.P1. In the above circumstances, I dispose of this original petition with the following directions: The respondents shall ascertain the total number of vacancies of Special Grade Assistant Executive Engineers which have arisen prior to the retirement of the petitioner and if, going by seniority, the petitioner was entitled to be promoted to one of the vacancies, the petitioner shall be given such promotion and consequential monetary benefits, if he is found to be eligible for such promotion. Orders in this regard shall be passed, as expeditiously as possible, at any rate, within three months from the date of receipt of a certified copy of this judgment. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================ O.P.No. 6526 of 2001-B ================ J U D G M E N T 5th January, 2009