IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN THURSDAY, THE 12TH FEBRUARY 2009 / 23RD MAGHA 1930 WP(C).No. 21209 of 2008(Y) -------------------------- PETITIONERS: --------------- 1. P.N.SANKARANARAYANAN, JUNIOR DEVASWOM OFFICER, MULLAKKAL DEVASWOM, NELLUVAI, THRISSUR DISTRICT. 2. S.RAJEEV, JUNIOR DEVASWOM OFFICER, PUTHIYEDAM DEVASWOM, KANJOOR P.O., ERNAKULAM DISTRICT. 3. G.S. ANIL KUMAR, JUNIOR DEVASWOM OFFICER, KUREEKKADU DEVASWOM, KUREEKKADU P.O., ERNAKULAM DISTRICT. 4. K.K. BABU, JUNIOR DEVASWOM OFFICER, KUMARANCHIRA DEVASWOM, NANDIPURAM P.O., CHENGALUR VIA, THRISSUR DISTRICT. 5. P. GIREESAN, JUNIOR DEVASWOM OFFICER, PARAKKOTTUKAVU DEVAWOM, P.O. THIRUVILLAWAMALA, THIRUSSUR DISTRICT. 6. K.N. BABU RAJ, JUNIOR DEVASWOM OFFICER, ANTHIMAHAKALANKAVU DEVASWOM, P.O. CHELAKKARA, THRISSUR DISTRICT. BY ADV. SRI.ELVIN PETER P.J. WP(C) 21209/2008 2 RESPONDENT(S): --------------- 1. THE COCHIN DEVASWOM BOARD, REPRESENTED BY ITS SECRETARY, DEVASWOM BUILDINGS, THRISSUR -1. 2. THE SECRETARY, COCHIN DEVASWOM BOARD, DEVASWOM BUILDINGS, THRISSUR -1. ADDL. RESPONDENTS:- 3. V. ANIL KUMAR, JUNIOR DEVASWOM OFFICER, VALLACHIRA DEVASWOM, P.O. VALLACHIRA, THRISSUR DISTRICT. 4. K.C. MANOJ KUMAR, JUNIOR DEVASWOM OFFICER, SRINGAPURAM DEVASWOM, P.O. KODUNGALLUR, THRISSUR DISTRICT. ADV. SRI.K.GOPALAKRISHNA KURUP,SC,COCHIN D.B FOR R1 & R2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMAN & P.S. GOPINATHAN, JJ. = = = = = = = = = = = = = = = = = = = = W.P.(C) NO. 21209 OF 2008 = = = = = = = = = = = = = = = = = = DATED THIS, THE 12TH DAY OF FEBRUARY, 2009. J U D G M E N T Raman, J. Petitioners, six in numbers, were Last Grade Servants working in the Cochin Devaswom Board, possessing the basic qualification of SSLC and five years of continuous service in the establishment for being considered for promotion to the post of Devaswom Assistant. They were promoted as Lower Division Clerk based on an executive order - Ext.P3 produced in the case. However, their promotions were not regularised at that time. Subsequently, D.B.A. 22/2008 was filed seeking permission to create 20 new Devaswoms which are to be managed by Junior Devaswom Officers in the cadre of LDC and to create 20 posts of LDC and to fill up the posts of Lower Division Clerk lying vacant by giving promotion to 45 Last Grade employees relaxing the Recruitment Rules including the six persons who were already promoted and to give category change to three employees and to create four posts of Revenue Inspectors. The "six Last Grade employees" referred to therein are the petitioners herein. That matter was WP(C) 21209/2008 :2: referred to the Ombudsman, who subsequently filed Report No. 19. As per the said report, it is reported that the six persons mentioned in the relief portion of the application had earlier approached this Court and obtained a direction to consider their promotion from Last Grade Service and that this Court by Annexure-V order referred to in the said report, directed such consideration by the Devsaswom Board. Anexure V therein is the judgment in WP(C) 36137/2007. After considering the representation made by the petitioners, the Board decided to promote them as L.D. Clerks. But according to the Ombudsman these six persons could not have been promoted since there were seniors to them in the last grade service who could also claim similar benefit and it was pointed out that while giving promotion to these six persons, the Board has relaxed the test qualification. According to the Ombudsman, when Rules prescribe test qualification and in the absence of any decision to exempt them from test qualification, it was not possible to promote any person against the Rules especially when admitted seniors are denied such benefit. Therefore, it was reported that the promotions given to the petitioners are not in accordance with the rules. This Court accepted the report as regards this and as regards the creation of 20 posts also since the Ombudsman had already recommended, this Court gave necessary directions to create 20 new posts and to fill up the same on a WP(C) 21209/2008 :3: provisional basis and regarding the other vacancies to take steps for filling up the posts on regular basis in accordance with law. Based on such directions issued by this Court in DBA 22/2008, petitioners were in effect reverted from the posts of L.D.C.; but were allowed to continue on provisional basis with special allowances till regular appointments are made as directed. Petitioners have therefore, come before this Court by filing the present writ petition. 2. Evidently, petitioners were not heard either when the directions were so issued in DBA 22/2008 or by the Ombudsman, before submitting the report before this Court. In such circumstances, we, by an interim direction dated 12th December, 2008, referred the matter to the Ombudsman for a fresh consideration of the matter and to file a report after hearing the petitioners also. Pursuant thereto, the Ombudsman has filed Report No. 3/2009. It is pointed out that the earlier report was filed on the impression that the promotion given to these six persons, granting relaxation of the rules, was overlooking the claims of the other two seniors who are similarly situated. But it was pointed out by the Devaswom that in DBA 22/2008 filed earlier, the proposal was to promote not only these six persons, but also the two senior persons above the petitioners, irrespective of the date on which they have to be promoted. Therefore, the Ombudsman has reported WP(C) 21209/2008 :4: that in case the seniors are also given promotion, then there may not be any objection in giving promotion to the petitioners. 3. We have heard the parties. Ext.P3 produced by the petitioner is an executive order. It is admitted that Rules were framed only in 2004 earmarking 25% vacancies for the Last Grade Employees for promotion and till then there were no statutory rules. So long as there were vacancies in the post of L.D.C. to be filed up by promotion from Last Grade Servants and if the petitioners are qualified except the text qualification which was introduced for the first time only on 1.1.2004, then normally they cannot be denied the right of being promoted to the next post, provided there are vacancies. It is admitted that there were vacancies. If that be so, while giving promotion to the petitioners, the right of their seniors shall not in any way be affected. But now that they are also given promotion as in the case of the petitioners, then the proposal as made for regularizing the promotion given to the petitioners without affecting their seniority can be accepted. In the circumstances, we recall the order in DBA 22/2008 to the extent of passing this order in the matter of promotion of the petitioners as indicated above. In the result, the writ petition is disposed of directing the Cochin Devaswom Board to pass appropriate orders regularising the promotion of WP(C) 21209/2008 :5: the petitioners along with their seniors. While giving such regularisation, the interse seniority be maintained. P.R. RAMAN, JUDGE. P.S. GOPINATHAN, JUDGE. KNC/-