IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 24TH NOVEMBER 2009 / 3RD AGRAHAYANA 1931 OP.No. 17460 of 1999(C) ----------------------- PETITIONER(S): --------------- V.ANTONY, ASSISTANT ENGINEER (RTD.), 'SANTHIGIRI' INDUSTRIAL ESTATE ROAD, PAPPANAMCODE P.O., TRIVANDRUM. BY ADV. SRI.ANIL XAVIER RESPONDENT(S): --------------- 1. STATE OF KERALA, REP. BY THE CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF AGRICULTURE, SOIL CONSERVATION UNIT, TRIVANDRUM. GOVERNMENT PLEADER SHRI.ARAVINDA KUMAR BABU.T.K. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 24/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.No. 17460/99. APPENDIX PETITIONER(S)' EXHIBITS P1. COPY OF THE JUDGMENT IN O.P.No. 3214/92 OF THIS COURT. P2. COPY OF THE REPRESENTATION DTD.4.5.98. P3. COPY OF THE NOTICE DTD.10.11.98. P4. COPY OF THE LETTER DTD.7.1.99 BY R1. sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== O.P.No. 17460 of 1999 ================== Dated this the 24th day of November, 2009 J U D G M E N T The petitioner was appointed through the Public Service Commission as a 1st Grade Draftsman/Overseer in the Department of Soil Conservation, pursuant to which, the petitioner joined service on 23.6.1967. He retired from service on 30.6.1995. Originally in the post of 1st Grade Draftsman/Overseer a provisional seniority list was published, in which, the petitioner and other direct recruits were shown below the departmental promotees. The petitioner and other direct recruits filed O.P.Nos.3069/1986 and 3810/1986 challenging such seniority list. Those two original petitions were allowed and respondents 1 and 2 were directed to finalise the seniority list in the light of the principles laid down in the judgment in W.A.No.55/1980, wherein this Court upheld the claim of direct recruits for seniority in preference to the departmental promotees on the basis of the date of occurrence of vacancy. In compliance with that judgment, a final seniority list was published, wherein the petitioner and other direct recruits were ranked above the departmental promotees. One of the departmental promotees challenged the same by filing O.P.No.3214/1992 claiming that, in view of the judgment in O.P.No.3589/1977 filed by her, her seniority vis-a-vis the direct O.P.17460/99 2 recruits cannot be changed. While that original petition was pending, the petitioner retired from service on 30.6.1995. That original petition was disposed of on 23.2.1998 holding that the seniority of the petitioner in that original petition having been concluded by earlier judgments, the same cannot be questioned again. Therefore, she was directed to be given seniority over the direct recruits. In the final seniority list the petitioner was ranked No.38. The petitioner now submits that he is entitled to notional promotion and refixation of salary as also pensionary benefits based on such refixation on par with that of Sri.Sanalkumar, who is rank No.44 in the seniority list. In respect of the same, the petitioner filed Ext.P2 representation dated 4.5.1998. That representation was rejected by Ext.P4. The petitioner challenges Ext.P4 in this original petition seeking the following reliefs: “(i) issue a writ of certiorari or other appropriate writ, order or direction, calling for the files leading to the issual of Exhibit P4, examine its legality, propriety and quash the same. (ii) declare that the petitioner is entitled to notional promotion and the consequential salary and pensionary benefit in par with his junior. (iii) direct the respondents to consider the claim of the petitioner as per Exhibit P2 and P3 in the light of Exhibit P1 judgment and seniority list Order No.E(4) 13048/86 dated 20.12.1991.” 2. The prayers of the petitioner are opposed by the 1st respondent by filing a counter affidavit. 3. I am unable to even consider the contentions of the petitioner on merits without knowing the seniority position as among O.P.17460/99 3 the petitioner and the petitioner in O.P.No.3214/1992 and Sri.Sanalkumar as also other direct recruits, who may be senior to the petitioner in the seniority list. The petitioner has not produced any material to bring on record the relative seniority position among those persons. Without the same, I cannot, with any amount of certainty, decide whether the petitioner is entitled to notional promotion as on the date of promotion of the said Sri.Sanalkumar. I say so since, if the petitioner in O.P.No.3214/1992 is junior to Sri.Sanalkumar, if petitioner is given promotion over Sri.Sanalkumar, that would violate the judgment in O.P.No.3214/1992. As such, the petitioner has not been able to show with any amount of certainty that he is entitled to the reliefs prayed in the original petition. Accordingly, this original petition is dismissed. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== O.P.No. 17460 of 1999-C ================== J U D G M E N T 24th November, 2009