IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN WEDNESDAY, THE 23RD NOVEMBER 2011 / 2ND AGRAHAYANA 1933 WP(C).No. 24481 of 2011(I) -------------------------- PETITIONER: ------------------- P.MOHANDAS,S/O.KUNHIKRISHNAN NAIR, AGED 48 YEARS,PEON,DIVISIONAL FOREST OFFICE, NORTH WAYANAD DIVISION, MANANTHAVADY, WAYANAD DISTRICT. BY ADV. SRI.V.A.MUHAMMED RESPONDENTS: --------------------- 1. THE STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, FOREST & WILD LIFE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 2. THE CHIEF CONSERVATOR OF FORESTS, NORTHERN CIRCLE,KANNUR 670 001. 3. THE DIVISIONAL FOREST OFFICER NORTH WAYANAD,MANANTHAVADY, WAYANAD DISTRICT 670 645. R1 TO R3 BY GOVT. PLEADER SRI.E.M.ABDUL KHADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JV WPC NO: 24481/2011 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE RELEVANT PAGE OF THE KERALA FOREST SUBORDINATE SERVICE RULES 1962. P2: COPY OF THE APPLICATION OF THE PETITIONER. P3: COPY OF THE ORDER NO: E1-6921/2007 OF THE DIVISIONAL FOREST OFFICER, PALAKKAD. RESPONDENT'S EXHIBITS: /TRUE COPY/ P.A. TO JUDGE JV K.SURENDRA MOHAN, J = = = = = = = = = = = = = WP(C).No.24481 of 2011-I. = = = = = = = = = = = = = Dated this the 23rd November, 2011. J U D G M E N T The petitioner is working as Peon in the Forest Department. He has been working in the said post since September, 2003. As per the rules applicable, peons having five years service and who have not completed 50 years of age are eligible to be appointed by transfer to the next higher post of Forest Guard. The petitioner acquired the eligibility for such promotion by September, 2008. However, he was not promoted as a Forest Guard. Therefore, he submitted Ext.P2 request for such promotion. This writ petition has been filed complaining that the said request has not been considered. The petitioner also places reliance on Ext.P3 order by which promotion has been granted to a similarly placed employee. Therefore, he seeks a similar order as Ext.P3 in his case also. WP(C).No.24481/2011-I. 2 2. A counter-affidavit has been filed by the third respondent. The case of the third respondent is that the petitioner had earlier submitted an application requesting for appointment by transfer as Forest Guard on 22.12.2006. However, the same was rejected since he had not acquired the qualification of five years service. Thereafter, according to the third respondent, the petitioner did not submit any other application till 28.10.2010 and 9.3.2011. The said applications filed by the petitioner could not be considered for the reason that in the meantime, the Kerala Forest Subordinate Service Rules ('Rules' for short) was amended on 30.8.2010 and the qualification for appointment by transfer as Forest Guard has been raised to Plus two. The mode of appointment has also been changed and has to be now made through the Public Service Commission. Therefore, it is contended that the petitioner's application could not be considered. WP(C).No.24481/2011-I. 3 3. I have heard the counsel for the petitioner as well as the learned Govt.Pleader. 4. Promotion is to be granted by the authorities. It is not necessary that a candidate should submit an application seeking his promotion. It is well settled that the entitlement of an employee for promotion is to be determined as on the date on which he acquires eligibility for such promotion. Therefore, the petitioner was fully qualified for promotion by transfer from September, 2008. It was not due to his fault that he was not considered or granted the promotion that was legitimately due to him. The amendment to the rules was effected only on 30.8.2010. The said amendment cannot affect the right of the petitioner that has accrued to him in September, 2008. The petitioner was entitled to appointment by promotion to the post of Forest Guard from the said date. Depending on the availability of vacancies, he was entitled to such promotion. For the above reason, this writ petition is allowed. WP(C).No.24481/2011-I. 4 5. The second respondent is directed to pass appropriate orders granting promotion to the petitioner as Forest Guard from the date on which a vacancy in the said post had arisen, to which he was entitled to be promoted after September, 2008. K.SURENDRA MOHAN, (Judge) Kvs/-