IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 10TH SEPTEMBER 2009 / 19TH BHADRA 1931 WP(C).No. 7207 of 2007(G) ------------------------- PETITIONER(S): --------------- MUSTAPHA KAMAL, AGED 44 YEARS, S/O.K.M.MUHAMMED, SENIOR OFFICE ASSISTANT, MODEL ENGINEERING COLLEGE, ERNAKULAM. BY ADV. SRI.R.SREERAJ RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY ITS PRINCIPAL SECRETARY, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM. 2. INSTITUTE OF HUMAN RESOURCE DEVELOPMENT, THIRUVANANTHAPURAM, REPRESENTED BY ITS DIRECTOR. 3. DIRECTOR, IHRD, THIRUVANANTHAPURAM. 4. SCREENING COMMITTEE, IHRD, REPRESENTED BY ITS CHAIRMAN. 5. HARIKUMAR.B., HEAD CLERK, IHRD HEAD QUARTERS, PRAJOE TOWERS, TRIVANDRUM-14. 6. DANLEY MATY JOHNSON, HEAD CLERK, COLLEGE OF ENGINEERING, CHENGANNUR, ALAPPUZHA DISTRICT. 7. SUJATHA.A.P., HEAD CLERK, TECHNICAL HIGHER SECONDARY SCHOOL, MUTHUVALLUR, MALAPPURAM DISTRICT. 8. ANITHA.D.S., HEAD CLERK, TECHNICAL HIGHER SECONDARY SCHOOL, ATTINGAL, TRIVANDRUM DISTRICT. 9. ASHA.K.PILLAI, HEAD CLERK, COLLEGE OF APPLIED SCIENCE, MAVELIKKARA, KOLLAM DISTRICT. 10. ANITHA KUMARI.P., HEAD CLERK, TECHNICAL HIGHER SECONDARY SCHOOL, MUTTADA, TRIVANDRUM. WP(C) NO.7207/2007 11. SAYEEDA BEEVI.M.M., HEAD CLERK, MODEL ENGINEERING COLLEGE, THRIKKAKARA, ERNAKULAM DISTRICT. 12. ANANDAN.M.K., HEAD CLERK, TECHNICAL HIGHER SECONDARY SCHOOL, CHETTUVA, THRISSUR DISTRICT. 13. RAJESH.N.A., HEAD CLERK, MODEL ENGINEERING COLLEGE, THRIKKAKARA, ERNAKULAM DISTRICT. 14. VINOD KUMAR.R., HEAD CLERK, IHRD HEAD QUARTERS, PRAJOE TOWERS, TRIVANDRUM-14. 15. ROOPESH CHANDRAN NAIR.M., COLLEGE OF ENGINEERING, ATTINGAL, TRIVANDRUM-14. 16. ABDUL NAZAR.T., HEAD CLERK, TECHNICAL HIGHER SECONDARY SCHOOL, VATTAKULAM, MALAPPURAM. 17. KHADEEJA.V.S, HEAD CLERK, MODEL TECHNICAL HIGHER SECONDARY SCHOOL, KAPRASSERY, ERNAKULAM DISTRICT. 18. MAJEED.P.K., HEAD CLERK, COLLEGE OF APPLIED SCIENCE, KUTHUPARAMBU, KANNUR DISTRICT. 19. SMT.JYOTHILEKSHMI.P.P., TECHNICAL HIGHER SECONDARY SCHOOL, KALLANGADI KUNJUMUHAMMED MEMORIAL BUILDING, NEAR PANCHAYATH COMMUNITY HALL, KODUVALLY, CALICUT-673 572. *ADDL.R20. M.G.UNIVERSITY, KOTTAYAM, REPRESENTED BY ITS REGISTRAR. (*IMPLEADED AS ADDITIONAL 20TH RESPONDENT IN THE WRIT PETITION AS PER ORDER DATED 10/09/2009 IN I.A.NO.4364/2007) ADV. SRI.N.N.SUGUNAPALAN, SC, IHRDE FOR R2TO4 MR.T.A.SHAJI, SC FOR THE UNIVERSITY MR.S.P.ARAVINDAKSHA PILLAI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/09/2009, ALONG WITH WP(C) NO.30210/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.7207/2007 APPENDIX PETITIONER'S EXHIBITS P1 : COPY OF ORDER DATED 10/09/2004 OF R3. P2 : COPY OF ORDER DATED 28/04/2005 OF R3. P2(a) : COPY OF ORDER NO.12270/J2/05/H.EDN. DATED 28/04/2005 OF R1. P2(b) : COPY OF PETITION SUBMITTED BEFORE R1. P3 : COPY OF PERSONAL HEARING NOTES SUBMITTED BY PETITIONER. P4 : COPY OF G.O.(Rt.)NO.1546/06/H.EDN. DATED 13/10/2006. P5 : COPY OF JUDGMENT DATED 02/11/2006 IN WP(C) NO.28727/2006. P6 : COPY OF G.O.(Rt.) NO.1873/2006/H.Edn. DATED 08/12/2006. P7 : COPY OF G.O.(P) 616/2003 DATED 19/11/2003. P8 : COPY OF RELEVANT PORTION OF SPL. RULES OF R2. P9 : COPY OF ORDER NO.E5/9957/2K/HRD DATED 27/10/2001. P10 : COPY OF ORDER DATED 29/06/2002 PROMOTING SMT.JYOTHILEKSHMI. P10(a) : COPY OF ORDER NO.E5/162/2002/HRD DATED 06/08/2002 OF R2. P11 SERIES : COPIES OF REPRESENTATIONS SUBMITTED BY THE PETITIONER TO R2. P12 : COPY OF REPRESENTATION DATED 29/07/2002 SUBMITTED BY PETITIONER TO R1. P13 : COPY OF ORDER NO.E.A2/1429/2005/HRD PROMOTING RESPONDENTS 5 TO 18. P14 : COPY OF PROCEEDINGS DATED 16/10/2006 OF R3 REFERRED AS ITEM 1 IN EXT.P13. ANNEXURE A1 : COPY OF G.O.(MS) 159/89/H.Edn. DATED 10/08/1989. RESPONDENT'S EXHIBITS R2(a) : COPY OF ORDER DATED 01/02/1997 ISSUED BY R2. R2(b) : COPY OF PARA 2(14) OF IHRD SERVICE RULES. WP(C) NO.7207/2007 R2(c) : COPY OF MINUTES OF THE MEETING HELD ON 15/02/2005 BY THE SCREENING COMMITTEE. R2(d) : COPY OF MINUTES OF the MEETING HELD ON 24/03/2006 BY THE SCREENING COMMITTEE. R2(e) : COPY OF G.O.(Rt.)NO.1546/2006/H.Edn. DATED 13/10/2006. R2(f) : COPY OF G.O.(Rt.) NO.1873/06/H.Edn. DATED 08/12/2006. //TRUE COPY// PA TO JUDGE. jg ANTONY DOMINIC, J. ------------------------- W.P.(C.) Nos.7207 of 2007 & 30210 of 2008 --------------------------------- Dated, this the 10th day of September, 2009 J U D G M E N T The petitioner seeks to quash Exts.P2, P6, P13 & P14 and Ext.P1 to the extent it granted promotion to the 19th respondent. There is a further prayer to direct respondents 2 & 3 to consider his claim for promotion as Head Clerk with effect from 31/10/2003 notionally or from 25/10/2004. 2. The petitioner joined the services of the 2nd respondent as a Junior Office Assistant on 10/11/1992. While so, he availed of long leave without allowances for taking up employment abroad for the period from 06/02/1997. He rejoined duty only on 16/01/2000, and was promoted as Office Assistant/LDC with effect from 17/01/2000. He was again promoted as Senior Office Assistant/UDC with effect from 31/10/2002 and his probation in that post was declared on 31/10/2003. 3. According to the petitioner, as per the Special Rules, WP(C) Nos.7207/07 & 30210/08 -2- Senior Office Assistant/UDC with 8 years experience in office work is eligible for promotion as Head Clerk. It is stated that, despite the fact that by 2004 the petitioner had acquired eligibility for promotion as Head Clerk, by Ext.P1 order dated 10/09/2004, 18 Senior Office Assistants were promoted with effect from 22/07/2003 as Head Clerks, despite the availability of 20 vacancies, and overlooking his claim for promotion. It is stated that again, the remaining two vacancies and further vacancies were filled up by Ext.P2 order dated 28/04/2005, on which occasion also his claims were over-looked, and that the party respondents herein were promoted. 4. According to the petitioner, on a representation made by his father against Ext.P2, Ext.P2(a) order dated 28/04/2005 was issued by the Government of Kerala directing to keep Ext.P2 order of promotion in abeyance. He again represented for promotion by Ext.P2(b), and pursuant to the judgment of this Court in WP(C) No.17673/2006, the said representation was considered and was rejected by Ext.P4 order. That order was challenged in Writ Petition No.28727/2006, and by Ext.P5 judgment rendered on 02/11/2006, WP(C) Nos.7207/07 & 30210/08 -3- this Court quashed Ext.P4 order and directed re-consideration of the matter. Accordingly, the matter was re-considered and by Ext.P6 order, his representation was rejected once again. Thereafter, Ext.P13 order was issued by respondents directing implementation of Ext.P2 order of promotion and it was at that stage, this writ petition is filed. 5. Irrespective of the contentions raised in this writ petition, I am not persuaded to examine the validity of Ext.P1 order of promotion issued as early as on 10/09/2004, primarily for the reason that prior to the filing of this writ petition, that order of promotion does not appear to have been challenged by the petitioner. If that be so, any challenge raised in this writ petition is liable to be rejected for delay and laches. 6. Coming to the validity of Ext.P2 order of promotion, the stand of the 2nd respondent as reflected in the counter affidavit is that although, at that point of time the petitioner was eligible to be promoted, since his seniors were awaiting promotion, the petitioner could not have been promoted. The so called seniors gained seniority over the petitioners by earning promotions to the post of WP(C) Nos.7207/07 & 30210/08 -4- Office Assistant/LDC while the petitioner was on LWA for foreign employment. It is also stated that based on the seniority so gained, they earned further promotion to the post of Senior Office Assistant as well prior to the petitioner. However, it is to be noticed that going by the Special Rules, Senior Office Assistants having 8 years experience in Office Work are eligible to be promoted. Therefore, even if there are seniors to the petitioners, if at the time when the vacancies arose, if those seniors did not have 8 years experience as contended by the petitioner, and the petitioner had that eligibility, the mere fact that seniors were awaiting promotion can be no reason to decline promotion to the petitioner even if he is junior. Therefore, at the time when Ext.P2 order was issued, if the petitioner was eligible, his claim should not have been over looked for the only reason that ineligible seniors were awaiting promotion. This stand of the 2nd respondent as reflected in the counter affidavit, cannot be approved. Therefore, the rejection of the petitioner’s claim as per Ext.P6 order cannot be sustained, and is accordingly set aside. 7. The writ petition, therefore, will stand disposed of WP(C) Nos.7207/07 & 30210/08 -5- directing respondents 2 & 3 to consider the claim of the petitioner for promotion to the post of Head Clerk, against the vacancies filled up by Ext.P2 order dated 28/04/2008, with reference to the seniority and his eligibility as at the time when the vacancies in question arose and filled up by the said order. The claim in this behalf shall be considered and orders passed as expeditiously as possible, at any rate, within two months of production of a copy of this judgment. 8. In so far as WP(C) No.30210/2008 is concerned, the claim of the petitioner is for further promotion to the post of Junior Superintendent. The sustainability or otherwise of this claim will depend upon the outcome of the re-examination ordered in the judgment in WP(C) No.7207/2007. In view of this leaving open the contentions raised, this writ petition is closed with liberty to the petitioner to pursue his claims as and when time is ripe. These writ petitions are disposed of as above. (ANTONY DOMINIC, JUDGE) jg