IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 14TH AUGUST 2009 / 23RD SRAVANA 1931 WP(C).No. 25130 of 2008(N) -------------------------- PETITIONER(S): --------------- 1. C.I.ZEENATH, AGED 53 YEARS, W/O V.U. ABOOBACKER, VALIYAKATHU HOUSE, SURABHI,P.O. KONATHUKUNNU, THRISSUR DISTRICT. 2. K.P. GEETHA, AGED 52 YEARS, W/O K.A. JAYAPRAKASH, KANJIRAPARAMBIL HOUSE, AMALA NAGAR P.O., THRISSUR DISTRICT. BY ADV. SRI.BABU KARUKAPADATH RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF GENERAL EDUCATION GOVERMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR OF PUBLIC INSTRUCTIONS, AND THE CHAIRMAN OF THE SELECTION COMMITTEE, OFFICE OF D.P.I., THIRUVANANTHAPURAM. 3. P.J. THANKAMMA, NOON MEAL OFFICER, OFFICE OF THE DEPUTY DIRECTOR EDUCATION, THRISSUR. 4. C.A. RAVEENDRAN, P.A. TO DEO, KANJIRAPPALLY, KOTTAYAM. 5. T.K. KUNJAPPAN, THOPPIL HOUSE, VEDIMARA (VIA), N. PARUR, P.O. MANNAM, RTD., SR. SUPDT. OFFICE OF THE A.E.O, N. PARUR. 6. K.K.ALIYAR, P.A. TO DEO, MUVATTUPUZHA. 7. C.MOHANAN, P.A. TO DEO, THALASSERRY, KANNUR. WP(C).No. 25130 of 2008(N) -2- 8. K.GOVINDANKUTTY NAIR, SENIOR SUPERINTENDENT, OFFICE OF THE AEO, MANCOMPU, ALAPPUZHA. 9. SMT. V.KALLIYANIKUTTY, SENIOR SUPERINTENDENT, OFFICE OF THE AEO KEEZHISSERY, MALAPPURAM. 10. SMT. ELIZABETH OOMMEN, SENIOR SUPERINTENDNET, OFFICE OF THE AEO, PATHANAMTHITTA. 11. E.HAREENDRA NATHAN, NOON MEAL OFFICE, OFFICE OF THE DEPUTY DIRECTOR, (EUCATION), KANNUR. 12. M.CHANDRA MOHANAN, MADATHUMVAYALIL, NEW CIVIL LINE, NEAR CIVIL STATION, PALAKKAD. 13. R.HRIDYA SWAMY, RTD. SUPERINTENDENT, EDUCATION, DEPARTMENT, PAMPAMPALLAM P.O., PALAKKAD. BY GOVERNMENT PLEADER SMT.SMITHA SUKUMARAN FOR R1-2 SRI.K.PADMANABHAN FOR R3 SRI.A.D.RAVINDRA PRASAD FOR R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/08/2009 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 25130 of 2008(N) APPENDIX PETITIONERS' EXHIBITS: Ext.P1 - TRUE COPY OF THE PROVISIONAL SENIORITY LIST OF JUNIOR SUPERINTENDENT IN THE GENERAL EDUCATION DEPARTMENT FOR THE PERIOD FROM 29/1/1996 TO 31/12/2000. Ext.P2 - TRUE COPY OF THE REPRESENTATION DATED 15/6/2004 SUBMITTED BY THE 1ST PETITIONER BEFORE THE 2ND RESPONDENT. Ext.P3 - TRUE COPY OF THE REPRESENTATION DATED JUNE 2004 SUBMITTED BY THE 2ND PETITIONER BEFORE THE 2ND RESPONDENT. Ext.P4 - TRUE COPY OF THE CIRCULAR DATED 29/12/2OO3 ISSUED BY THE 2ND RESPONDENT. Ext.P5 - A TRUE COPY OF THE ORDER DATED 25/6/04 OF THE 2ND RESPONDENT GIVING PROMOTIONS TO 3RD RESPONDENT SENIOR SUPERINTENDENT. Ext.P6 - A TRUE COPY OF THE ORDER DATED 30/7/2004 OF THE 2ND RESPONDENT GIVING PROMOTIONS TO RESPONDENTS 4 TO 10 AS SENIOR SUPERINTENDENTS. Ext.P7 - A TRUE COPY OF THE ORDER DATED 7.10.2004 OF THE 2ND RESPONDENT GIVING PROMOTIONS TO THE PETITIONERS AS SENIOR SUPERINTENDENT. Ext.P8 - A TRUE COPY OF THE REPRESENTATION DATED 1/12/2006 SUBMITTED BY THE 2ND PETITIONER BEFORE THE 2ND RESPONDENT. Ext.P9 - A TRUE COPY OF THE REMINDER DATED 26/5/2008 SENT BY THE 2ND PETITIONER TO THE 2ND RESPONDENT. Ext.P10 - A TRUE COPY OF THE ORDER DATED 6/5/2008 GRANTING RATIO PROMOTIONS TO RESPONDENTS Ext.P11 - A TRUE COPY OF THE ORDER DATED 21/6/2008 GRANTING RATIO PROMOTIONS TO RESPONDENTS Ext.P12 - A TRUE COPY OF THE ORDER DATED 21/6/2008 GIVING POSTINGS TO RESPONDENTS 4,6AND 7 AS P.A. Ext.P13 - A TRUE COPY OF THE REPRESENTATION DATED 25/5/2008 SUBMITTED BY THE 1ST PETITIONER BEFORE THE 2ND RESPONDENT. Ext.P14 - A TRUE COPY OF THE ORDER DATED 18/7/2008 ISSUED BY THE 2ND RESPONDENT WITH RESPECT TO THE 1ST PETITIONER. Ext.P15 - A TRUE COPY OF THE ORDER DATED 18/7/2008 ISSUED BY THE 2ND RESPONDENT WITH RESPECT TO THE 2ND PETITIONER. Ext.P16 - TRUE COPY OF THE ORDER DATED 18/8/2008 OF THE 2ND RESPONDENT. Ext.P17 - TRUE COPY OF THE ACKNOWLEDGMENT CARD EVIDENCING THE ACKNOWLEDGMENT OF Ext.P8. // TRUE COPY // PA TO JUDGE rhs S. SIRI JAGAN, J ............................................... W.P(C) No. 25130 of 2008 ................................................. Dated this the 14th day of August, 2009 J U D G M E N T Petitioners in this writ petition are two in number. They are presently working as Personal Assistants to District Educational Officers in the Department of General Education of the Government of Kerala. While they were working as Junior Superintendents, the departmental promotion committee met on 11.6.2004 for selecting candidates for promotion to the post of Senior Superintendents. Petitioners names were not considered by the DPC in that meeting for want of confidential reports of the petitioners for certain periods. In that selection, respondents 3 to 13 were selected for promotion and consequently, by Exts.P5 and P6 orders, respondents 3 to 10 were promoted as Senior Superintendents. By Ext.P7 order, respondents 11 to 13 and the petitioners were promoted. According to the petitioners, immediately thereafter on 1.12.2006, the 2nd petitioner submitted Ext.P8 representation to settle the seniority among the petitioners and respondents 3 to 13. That was not considered. The petitioners follows it up with Ext.P9, which was also not considered. While so, W.P(C) No. 25130 of 2008 -2- by Ext.P10, the 3rd respondent was given ratio promotion as PA to DEO, ahead of the 1st petitioner. Subsequently, by Ext.P11, respondents 4, 6 and 7 were also promoted as P.A. By Ext.P12, posting orders were issued to respondents 4, 6 and 7. In the meanwhile 5th respondent had already retired from service. The 1st petitioner filed Ext.P13 representation claiming that she is entitled to promotion ahead of the 3rd respondent as PA to DEO. A similar representation was given by the 2nd petitioner also. Both were rejected by Ext.P14 and P15, holding that the ratio promotion as Senior Superintendent (HG) is being given on the basis of date of promotion as Senior Superintendent and therefore the request of the petitioner cannot be considered. Subsequent to the same, petitioners were also promoted as PA. Petitioners now submit that the overlooking of the seniority of the petitioners for promotion in the cadre of Senior Superintendent and PA are clearly against the seniority position as settled in Ext.P1 seniority list wherein the 1st petitioner is shown as senior to respondents 3 to 13 and 2nd petitioner is shown as senior to respondent 5 to 13 in the cadre of Junior Superintendents. Therefore the date of effect of promotion given to respondents ahead of the petitioners against the seniority position is clearly unsustainable. Petitioners therefore seek the W.P(C) No. 25130 of 2008 -3- following reliefs: “i) call for the records leading to Exts.P10 to P12, P14 and P15 orders of the 2nd respondent dated 6/5/2008, 21/6/2008, 21/6/2008, 18/7/2008 and 18/7/2008 respectively issue a writ of certiorari or other order or direction quashing the same; ii) issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents 1 and 2 to grant retrospectively to the promotions given to the petitioners as Senior Superintendents w.e.f. the date on which their juniors were given promotions as Senior Superintendents; iii) restore the seniority of the petitioners in the cadre of Senior Superintendents and give ratio promotions and postings to the petitioners in any of the vacancies which arose in the departments as on 1/7/2008; iv) quash Exhibits P5 to P7 only to the extent to which give promotions to the respondents 3 to 13, overlooking the seniority of the petitioners in the cadre of Junior Superintendent;” 2. The petitioners contend that they were not considered for promotion in the DPC meeting held on 11.6.2004 not because of any of their fault. It is actually because of the fault of the 2nd respondent himself in the matter of forwarding their confidential records for some period, that they could not be considered for promotion in that meeting. They would further point out that they were not considered for promotion only on the ground that confidential report for the period from 30.1.2001 to 18.9.2001 in respect of the 1st petitioner and for the period from 1.1.2001 to W.P(C) No. 25130 of 2008 -4- 23.10.2001 in respect of the 2nd petitioner were not available, whereas in Ext.P4 the 2nd respondent had called for confidential reports of petitioners only for the period from 1.12.2002 to 1.12.2003 and 1.5.2003 to 31.12.2003. They would further submit that in so far as the respondents have no case that respondents 3 to 13 were given promotion ahead of the petitioners because they were demonstrably superior in merit to the petitioners, their seniority in the cadre of Junior Superintendent should have been protected in the cadre of Senior Superintendent also. The petitioners became aware of the fact that the same was not given to the petitioners only at the time of promotion to the post of P.A. Petitioners therefore would contend that they are rightly entitled to restoration of seniority both in the cadre of Senior Superintendent and PA to DEO in accordance with seniority position in Ext.P1 in the cadre of Junior Superintendent. 3. A counter affidavit have been filed by the 2nd and 3rd respondents disputing the contentions of the petitioners. 4. I have considered the rival contentions in detail. 5. The respondents have no case that the petitioners were overlooked in the matter of selection for promotion to the post of Senior Superintendent because the DPC considered respondents 3 W.P(C) No. 25130 of 2008 -5- to 13 superior to the petitioners on merit. Evidently the petitioners were not even considered in the first instance itself only because of the default of the 2nd respondent in making available the confidential records of the petitioners in time so as to enable the DPC to consider the case of the petitioners also. Therefore when subsequently they were considered and promoted by the adhoc DPC, I am of opinion that their seniority as in Ext.P1 list should also have been protected. The contention of the Government Pleader in this regard is that it is too late for the petitioners to agitate the question of seniority in the cadre of Senior Superintendent since the promotions were given as early as in 2004 since petitioners were aware that respondents 3 to 13 were given seniority ahead of the petitioners in 2004 itself and they did not challenge the same within a reasonable time thereafter. In answer to these contention the counsel for the petitioners would contend that at no time the respondents 1 and 2 have published the select list or seniority list in respect of promotion to respondents 3 to 13 and seniority among the petitioners and respondents 3 to 13 respectively. Since the petitioners were not considered for promotion only for want of confidential records and subsequently they were also promoted, they are entitled to presume that their seniority was also protected. W.P(C) No. 25130 of 2008 -6- As soon as they were aware that their seniority position was not restored, they immediately filed Ext.P8 representation dated 1.12.2006. The contention of the learned Government Pleader is that they never recorded Exts.P8. But the petitioners have produced Ext.P17 postal acknowledgment card, wherein the 2nd respondent had received a registered letter on 8.12.2007. Although learned Government Pleader would try to contend that it is not clear whether Ext.P17 is in respect of Ext.P8 looking at the date of Ext.P8 and the date when Ext.P17 was singed, I am inclined to believe the contention of the petitioner that Ext.P17 is the acknowledgment card for Ext.P8. The 2nd respondent has not chosen to give any reply to Ext.P8. The learned Government Pleader could not satisfy me that in respect of the promotion to respondents 3 to 13 select lists have been published as required under Rule 28 of the Kerala State and Subordinate Services Rules. The Government Pleader could not also satisfy me that a seniority list of Senior Superintendents showing the petitioners as juniors to respondents 3 to 13 has ever been published. Therefore I am of opinion that the petitioners are entitled to assume that when they were promoted as Senior Superintendent subsequently by the adhoc DPC, their seniority corresponding to the seniority in the W.P(C) No. 25130 of 2008 -7- post of Junior Superintendent was also restored in the cadre of Senior Superintendent, as against respondents 3 to 13. When they became aware of the fact that their seniority was not restored, they took up the matter with the 2nd respondent by filing Ext.P8. They also pursued the same, which ultimately resulted in Ext.P14 and P15. In so far as respondents could not raise any dispute regarding the eligibility of the 1st petitioner to be senior to the respondents 3 to 13 and 2nd petitioner to be senior to respondent 5 to 13, I am satisfied that their seniority in the cadre of Senior Superintendent and PA to DEO shall also be regulated accordingly. Therefore the 1st petitioner shall be considered as senior to the respondents 3 to 13 in the cadre of Senior Superintendent and PA to DEO and 2nd petitioner shall be considered as senior to respondents 5 to 13 in the cadre of Senior Superintendent and PA to DEO. Appropriate orders in this regard shall be issued by the 2nd respondent, as expeditiously as possible, at any rate within one month from the date of receipt of a copy of this judgment. The writ petition is allowed as above. S. SIRI JAGAN, JUDGE rhs