IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 1ST APRIL 2009 / 11TH CHAITHRA 1931 WA.No. 797 of 2009() -------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.32386/2008 Dated 27/02/2009 .................... APPELLANT/S/RESPONDENTS IN THE W.P.: -------------- 1. STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNMENT, HOME DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DEPARTMENTAL PROMOTION COMMITTEE FOR PROMOTION TO THE POSTS OF ASSISTANT PUBLIC PROSECUTOR GRADE 1 AND DEPUTY DIRECTOR OF PROSECUTION AND SENIOR ASSISTANT PUBLIC PROSECUTOR, HOME DEPARTMENT, REP. BY ITS CONVENER, JOINT SECRETARY TO GOVT. HOME DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER, SMT.R.BINDU. RESPONDENTS/PETITIONERS IN THE W.P.: --------------- 1. THOMAS PAUL, ASSISTANT PUBLIC PROSECUTOR GRADE I, KOTHAMANGALAM. 2. KERALA ASSISTANT PUBLIC PROSECUTORS ASSOCIATION T.C. NO. 10/617 INDIRAGIRI, S.V. SASTHRI, GARDENES, MANNANTHALA, THIRUVANANTHAPURAM REP. BY ITS PRESIDENT V RADHAKRISHNAN NAIR, DEPUTY DIRECTOR OF PROSECUTION AND SENIOR ASSISTANT PUBLIC PROSECUTOR, KOLLAM. SRI.S.P.ARAVINDAKSHAN PILLAY. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 01/04/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & M.L.JOSEPH FRANCIS, JJ. ------------------------------- W.A.No.797 OF 2009 ------------------------------- Dated this the 1st day of April, 2009 J U D G M E N T ~~~~~~~~~~~ Balakrishnan Nair, J. The respondents in the writ petition are the appellants. The respondents herein were the writ petitioner. 2. The brief facts of the case are the following: The 1st respondent is an Assistant Public Prosecutor Grade-I. The 2nd respondent is an Association of Assistant Public Prosecutors. The Special Rules are issued by the Government in 1996 governing qualifications and method of appointment to the posts of Deputy Director of Prosecution and Senior Assistant of Public Prosecutor, Assistant Public Prosecutor Grade-I and Assistant Public Prosecutor Grade-II . But, based on the said Rules, the Departmental Promotion Committee never met or considered the claim of eligible incumbents for promotion. The matter was delayed and finally Departmental Promotion Committee met in 2007 and published W.A.No.797/2009 2 a select list for promotion to the post of Assistant Public Prosecutor Grade-I. The said list contained 50 Assistant Public Prosecutors Grade-II found eligible for promotion as Grade-I. The Government accepted the proposal of the DPC and notified the same by Ext.P2 notification dated 31.7.2007. In the light of that published list, the Government ordered consequential promotions as per Ext.P3 order dated 25.1.2008. It was ordered that the promotions will take effect from 30.7.2007. Later, the Government issued Ext.P7 order stating that the promotions will take effect only from the date, the incumbents assumed charge instead of the date 30.7.2007. The Writ Petition was filed challenging Ext.P7 and also seeking other reliefs. Among the other reliefs sought, relief No.4 is most important. The said relief reads as follows: “iv) issue a writ of mandamus or any other appropriate writ, order or direction commanding the 2 nd respondent to prepare select list for promotion to the category of Assistant Public Prosecutor Grade I for the vacancies that have arisen after 16.9.1996 after assessing vacancy position, eligibility and suitability of the incumbents for promotion as on the date of occurrence of each vacancy and directing the 1 st respondent W.A.No.797/2009 3 to effect promotions from such select list with retrospective effect from the date of occurrence of each vacancy within a time limit to be fixed by this Hon'ble Court. “ 3. The learned Single Judge, after hearing both sides, allowed the writ petition. So, the respondents in the writ petition preferred this appeal, feeling aggrieved by the said judgment. 4. The learned Government Pleader appearing for the appellant submitted that the judgment of the learned Single Judge is unsustainable in the light of the provisions contained in Rule 28 of the Kerala State & Subordinate Services Rules, 1958, the Government can take its own time to order promotion. Therefore, the judgment of the learned Single Judge is unsustainable. 5. In an appropriate case if the Government are proposing to amend Special Rules, then pending amendment, it may take a conscious decision not to make promotion in accordance with the existing rules. But, in such cases, there W.A.No.797/2009 4 should be a conscious decision and it should be notified in the form of a Government Order also. In this case, we notice that only because of the delay and laches from the part of the competent authority, the question of ordering promotions was not taken up. Because of the laches from the part of the Government, the incumbents cannot stand to lose the legitimate rights which flow from the statutory rules and also from Rule 28 of the General Rules. Normally, the list of eligible persons for promotion in the vacancies that may arise in the next year should be prepared and notified during this year itself. If, for any reason, there is delay in holding the DPC and consideration takes place after the occurrence of the vacancies, the claim for appointment to each and every vacancy shall be considered separately and the most suitable and qualified persons on the date of occurrence of vacancy should be listed for promotions in accordance with the rules. If all the vacancies are considered in a block as was done in this case, seniors, who may be ineligible when the vacancies arose for various reasons, may become eligible subsequently and get promoted in preference to juniors, who may be qualified at the time of occurrence of vacancies. To W.A.No.797/2009 5 avert such situation provisions are made in the KS & SSR. The relevant rule is Rule 28 (b) (iA) which reads as follows: “(iA) Preparation of select list subsequent to the occurrence of vacancy:- When a select list is prepared subsequent to the occurrence of a vacancy, no person who was not qualified for inclusion in the select list at the time of occurrence of the vacancy shall be included in the select list for appointment against that vacancy” 6. We notice that the learned Single Judge has issued directions in tune with the above quoted rule. We find nothing wrong with the decision of the learned Single Judge. In the result, the Writ Appeal fails and it is dismissed. (K.BALAKRISHNAN NAIR, JUDGE) (M.L.JOSEPH FRANCIS, JUDGE) ps