IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI THURSDAY, THE 19TH JUNE 2008 / 29TH JYAISHTA 1930 WP(C).No. 17602 of 2008(U) PETITIONERS: ---------------------- 1. VIJAYAKUMARAN NAIR, SPECIAL GRADE SECRETARY, VYTHIRI GRAMA PANCHAYAT, WAYANAD. 2. K.RAJAVARMA THAMPAN, SPECIAL GRADE SECRETARY, PATHIYOOR GRAMA PANCHAYAT, KEERICKAD, KAYAMKULAM. 3. V.R.MADHUSOODANA KURUP, SPECIAL GRADE SECRETARY, AROOR GRAMA PANCHAYAT, ALAPPUZHA. 4. JOSE MATHEW, SPECIAL GRADE SECRETARY, MOOKKAM GRAMA PANCHAYAT, KOZHIKODE. BY ADV. SRI.ELVIN PETER P.J. RESPONDENTS: ------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PANCHAYATS, THIRUVANANTHAPURAM. WP(C).No. 17602 of 2008 :: 2 :: 3. R.RAJ PRADEEP, SPECIAL GRADE SECRETARY, THANNEERMUKKAM GRAMA PANCHAYAT, CHERTHALA, ALAPPUZHA. 4. P.D.SUDARSANAN, SPECIAL GRADE SECRETARY, KRISHNAPURAM GRAMA PANCHAYAT, KRISHNAPURAM. 5. M.P.PRABHAKARAN, SPECIAL GRADE SECRETARY MANNARKKAD GRAMA PANCHAYAT, PALAKKAD. 6. K.A.RAJU VARGHESE, SPECIAL GRADE SECRETARTY, VADAKKEKARA GRAMA PANCHAYAT, ERNAKULAM. 7. P.P.DAYANANDAN, SPECIAL GRADE SECRETARY, EDATHUA GRAMA PANCHAYAT, EDATHUA, ALAPPUZHA. 8. L.WILFRED, SPECIAL GRADE SECRETARY, ELLAMBALLOOR GRAMA PANCHAYAT, KOLLAM. 9. K.SOMAN, SPECIAL GRADE SECRETARY, OCHIRA GRAMA PANCHAYAT, KOLLAM. 10. P.N.ABOOBACKER SIDHIC, SPECIAL GRADE SECRETARY, KOOTHATTUKULAM GRAMA PANCHAYAT, KOOTHATTUKULAM, ERNAKULAM. BY ADV. SRI.K.JAJU BABU FOR R3, 4, 6, 9 & 10 SMT.M.U.VIJAYALAKSHMI FOR R3, 4, 6, 9 & 10 SRI.T.R.SADEESAN FOR R3, 4, 6, 9 & 10 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.GIRI, J. ------------------------- W.P.(C).No.17602 of 2008 U ------------------------- Dated this the 19th day of June, 2008. JUDGMENT The petitioners are Special Grade Secretaries in the Panchayat Common Service. They entered service as Lower Division Clerks and were later promoted as Upper Division Clerks. While functioning as Upper Division Clerks, they were promoted as Executive Officers Grade-I. Such promotions were effected in the year 1989 as evidenced by Exts.P2 and P3. They were subsequently promoted as Head Clerks and then as Junior Superintendents as per Ext.P5 and Special Grade Secretaries as per Ext.P6 order. 2. The Special Rules relating to the service provide for a ratio of 1:1 between Upper Division Clerks and Executive Officers Grade-II for promotion to the post of Executive Officer Grade-I. Apparently, in the course of effecting promotion to the post of Executive Officer Grade-I, the persons from the category of Upper Division Clerks were W.P.(C).NO.17602/08 :: 2 :: accommodated against vacancies in excess of 50% of the cadre strength. The precise number of persons who were so given promotion as Executive Officers Grade-I, as on 1.1.1990, has not been ascertained. But the dispute raised, in this regard by Executive Officers Grade-II ultimately led to Ext.P25 judgment, by a Bench of this Court. The Division Bench said that the Government should ascertain how many persons, among Executive Officers Grade- I in position as on 1.1.1990, were promotees from the cadre of Executive Officer Grade-II and how many persons came from the cadre of Upper Division Clerk. If the Upper Division Clerks were promoted in excess of the quota set apart for them, the excess promotees shall be treated as provisional promotees and they shall be removed from the seniority list of Executive Officers Grade-I as on 1.1.1990. It was made clear by the Division Bench that the petitioners as well as the beneficiaries of Ext.P15 order were to be heard by the Government before fresh orders are passed. W.P.(C).NO.17602/08 :: 3 :: 3. Sri.Elvin Peter, learned counsel for the petitioners contends that the petitioners herein were not among the 36 persons promoted, as per Ext.P15 order marked in Ext.P25 judgment. Therefore, they were not made eo-nomine parties in the writ petition leading to Ext.P25 judgment. According to the petitioners, they were promoted against the vacancies, which had arisen prior to the arising of the 36 vacancies against which certain Upper Division Clerks were excessively promoted and their promotions were never in jeopardy. They further contend that the final seniority list of Executive Officers Grade-I, marked as Ext.P8, as on 1.4.1990, was not challenged before this court as such and therefore, in the course of undertaking the exercise as directed by the Division Bench, persons like the petitioners who were promoted earlier should not be disturbed. 4. Learned Senior Government Pleader Sri.Nandakumar, on instructions, submits that W.P.(C).NO.17602/08 :: 4 :: the exercise is now being undertaken by the Government, as directed in Ext.P25 judgment. The Government has to ascertain the number of vacancies against which Upper Division Clerks were promoted in excess of the quota to the post of Executive Officer Grade-I as on 1.1.1990. Essentially on completion of the exercise, as directed by the division Bench, a fresh seniority list may have to be prepared. There is also a contention that Ext.P8 seniority list is no longer in existence, since a subsequent seniority list has been published as such and the same was the subject matter of challenge before this court in the writ petitions which led to Ext.P25 judgment. 5. Sri.Jaju Babu, who has entered appearance on behalf of respondents 3 to 5, submits that pursuant to the permission given by the Division Bench in Ext.P25 judgment, they have filed a representation before the Government seeking a specific ascertainment of the number of vacancies in the post of W.P.(C).NO.17602/08 :: 5 :: Executive Officer Grade-I to which Upper Division Clerks were promoted in excess of the quota that was available. They have pointed out 129 vacancies and apparently they have given a list of 129 persons who are allegedly excess hands and this is evident from Ext.P26 list. 6. The direction given by the Division Bench in Ext.P25 judgment is binding on the Government. The Government will have to undertake an exercise as directed in the judgment. But obviously, if the petitioners are, in any manner, affected by the action to be taken by the Government pursuant to Ext.P25 judgment, the petitioners and any other affected person will have to be put on notice and heard. Obviously, the Division Bench, while issuing the direction in Ext.P25 judgment, had only intended that when it said that the petitioners and the beneficiaries of Ext.P15 impugned therein should be heard, before the Government passes an order. If, in the course of the exercise undertaken by W.P.(C).NO.17602/08 :: 6 :: the Government in Ext.P25 judgment, any person other than the 36 persons included in Ext.P15 order in Ext.P25 judgment will also be affected i.e., the petitioners or other similarly situated persons, obviously, the Government will have to give them notice and then only pass an order as such. This aspect shall be borne in mind by the Government when it proceeds to complete the exercise pursuant to Ext.P25 judgment. Subject to the above, the writ petition is disposed of. Sd/- (V.GIRI) JUDGE sk/ //true copy// P.S. To Judge