IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 23RD JANUARY 2009 / 3RD MAGHA 1930 WP(C).No. 25197 of 2004(Y) -------------------------- PETITIONER(S): --------------- 1. P.SREEDHARAN, SUB REGIONAL EMPLOYMENT OFFICER (RTD.), RESIDING AT RETNA VIHAR, NEAR JOSE THEATRE, ERAMALLOOR P.O., CHERTHALA. 2. PRAKASH SREEDHAR, DISTRICT EMPLOYMENT OFFICER (RTD.), RESIDING AT SURYA, NEAR WATER AUTHORITY PUMP HOUSE, MALAPPURAM. BY ADV. SRI.K.JAJU BABU SMT.M.U.VIJAYALAKSHMI SMT.A.S.BEENU RESPONDENT(S): --------------- 1. STATE OF KERALA, REP: BY SECRETARY TO GOVERNMENT, LABOUR AND REHABILITATION DEPARTMENT, GOVT.SECRETARIAT, TRIVANDRUM. 2. THE EMPLOYMENT DIRECTOR, DIRECTORATE OF EMPLOYMENT, TRIVANDRUM. GOVERNMENT PLEADER SRI. MOHAMMED ANZAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PETITIONERS' EXHIBITS: W.P.C.NO. 25197/2004. ------------------------------------------------------------------ EXT.P1 TRUE COPY OF REQUEST DT. 28-8-2002. EXT.P2 REPRESENTATION DT. 20-12-2002. EXT.P3 GOVT. ORDER DT. 9-7-2004. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W. P (C) No. 25197 of 2004 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 23rd January, 2009. J U D G M E N T The 1st petitioner retired from service on 31-12-2002 as a Sub Regional Employment Officer/Divisional Employment Officer. According to him, a vacancy arose in the next promotion post of Deputy Director on 1-8-2002, to which the 1st petitioner could have been promoted and he was not so promoted. The 1st petitioner claims promotion with effect from 1-8-2002 in that vacancy. The 2nd petitioner retired from service as a District Employment Officer on 31-3-2003. Prior to his retirement, a vacancy in the post of Sub Regional Employment Officer/Divisional Employment Officer arose on 31-12-2002 to which the 2nd petitioner was entitled to be promoted and he was not so promoted. The 2nd petitioner claims promotion to the post of Sub Regional Employment Officer/Divisional Employment Officer with effect from 31-12-2002. The petitioners had earlier approached this Court by filing W.P.(C)No. 3136/2004 in which this Court directed consideration of the claims of the petitioners. Pursuant thereto, Ext. P3 order was passed rejecting the claims of both the petitioners. The 1st petitioner's claim was rejected on the ground that although a vacancy of Deputy Director arose on 1-8-2002, the 1st petitioner could not be promoted to that vacancy because at that time one Deputy Director was in excess and therefore there was actually no vacancy on 1-8-2002. As far as the 2nd petitioner is concerned, although it is admitted that two vacancies arose on 30-9- 2002 and one vacancy arose on 31-12-2002 and the 2nd petitioner was the third person eligible for such promotion, he could not be given that promotion since the select list including the 2nd petitioner was published only on 4-8-2003 ie. after the retirement of the 2nd petitioner. The petitioners now contend that Ext. P3 order is unsustainable. Learned Government Pleader on the basis of a W.P.C. No. 25197/04 -: 2 :- statement of facts received by him, supports Ext. P3. 2. I have considered the rival contentions in detail. 3. In so far as the 1st petitioner is concerned, I am not inclined to countenance his claim in so far as he has not challenged the finding to the effect that on account of the excess Deputy Director in service, when one of the Deputy Director retired, there was no consequent vacancy as the excess Deputy Director had to be accommodated in that vacancy. Therefore, the 1st petitioner cannot claim promotion to the vacancy arising on one Deputy Director having been promoted since there would not be any vacancy as that vacancy had to be adjusted against one Deputy Director already in excess in the service. 4. However, the case is different in so far as the 2nd petitioner is concerned. Admittedly, there was a vacancy on 31-12-2002 to which the 2nd petitioner was the rightful claimant. The only reason mentioned in Ext. P3 is that the select list was published only after the retirement of the 2nd petitioner. I do not think that a rightful claim for promotion can be denied to the 2nd petitioner on the ground that the select list was published only after the retirement of the petitioner. If such a contention is accepted then because of the fault of the respondents the preparation of the select list is prolonged the rightful claims of employees can be easily defeated, which cannot be permitted. Of course, there is another contention that the second petitioner's probation was also declared subsequently. That also is not a reason since once the probation is declared, it takes effect from the date from which probation has been declared. In the above circumstances, I am satisfied that the 2nd petitioner has become entitled to be promoted to the vacancy which arose on 31-12-2002 in accordance with the select list published on 4-8-2003. W.P.C. No. 25197/04 -: 3 :- Accordingly, the 2nd petitioner shall be notionally promoted with effect from the date when he ought to have been promoted and arrears of pay and consequent retirement benefits shall be paid to him. Orders in this regard shall be issued as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment by the competent among the respondents. The writ petition is disposed of as above. Sd/- S. Siri Jagan, Judge. Tds/