IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR FRIDAY, THE 11TH JULY 2008 / 20TH ASHADHA 1930 WP(C).No. 36429 of 2004(J) -------------------------- PETITIONER: ------------ R.MOHAN, UPPER DIVISION CLERK, INDUSTRIAL TRAINING INSTITUTE, INDUSTRIAL TRAINING DEPARTMENT, MALAMPPUZHA, PALAKKAD DIST. BY ADV. SRI.M.C.MADHAVAN RESPONDENTS: ------------- 1. THE DIRECTOR OF TRAINING, INDUSTRIAL TRAINING DEPARTMENT, THYCAUD, THIRUVANANTHAPURAM. 2. THE ADMINISTRATIVE OFFICER, INDUSTRIAL TRAINING DEPARTMENT, THYCAUD, THIRUVANANTHAPURAM. 3. THE STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNMENT, LABOUR AND REHABILITATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. G.P. SMT.SMITHA SUKUMARAN FOR R1-3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: P1: TRUE COPY OF ORDER DT.1.10.91 ISSUED BY R2. P2: TRUE COPY OF ORDER DT.27.4.93 ISSUED BY R2. P3: TRUE COPY OF G.O. DT.30.5.95. P4: TRUE COPY OF REPRESENTATION DT.12.8.97 SUBMITTED BY PETITIONER. P5: TRUE COPY OF LETTER DT.10.9.97 SENT BY R1 TO R3. P6: TRUE COPY OF LETTER DT.30.9.97 SENT BY R1 TO THE GOVERNMENT. P7: TRUE COPY OF G.O. DT.7.10.97. P8: TRUE COPY OF ORDER DT.9.10.1997 ISSUED BY R2 POSTING THE PETITIONER TO THE I.I.T., FOR WOMEN AT MALAMPUZHA. P9: TRUE COPY ORDER DT.27.10.98 ISSUED BY R2. P10: TRUE COPY OF ORDER DT.11.10.2001 ISSUED BY R2. P11: TRUE COPY OF LETTER ISSUED BY R1. P12: TRUE COPY OF JUDGMENT DT.2.11.99 IN O.P. NO.15981/1998. P13: TRUE COPY OF REPRESENTATION DT.8.12.2003 SUBMITTED BY PETITIONER TO THE GOVERNMENT. P14: TRUE COPY OF ORDER DT.5.11.2004 ISSUED BY R2. P15: TRUE COPY OF PAGE 17 OF THE SERVICE BOOK OF THE PETITIONER. P16: TRUE COPY OF JUDGMENT DT.26.9.2005 IN O.P. NO.5744/2003. P17: TRUE COPY OF ORDER DT.9.10.1997 ISSUED BY R2. P18: TRUE COPY OF LETTER DT.1.9.2007 ISSUED BY STATE PUBLIC INFORMATION OFFICER, INDUSTRIAL TRAINING DEPARTMENT, TRIVANDRUM. P19: TRUE COPY OF LETTER DT.25.6.2007 .DO. .DO. P20: TRUE COPY OF LETTER DT.10.5.2007 ISSUED BY LABOUR REHABILITATION DEPT., GOVERNMENT OF KERALA, TRIVANDRUM. TRUE COPY PA TO JUDGE C.N.RAMACHANDRAN NAIR, J. .................................................................... W.P.(C) No.36429 of 2004 .................................................................... Dated this the 11th day of July, 2008. JUDGMENT Heard counsel for the petitioner and Government Pleader for respondents. The petitioner joined as LDC in the Industrial Training Department on 20.2.1991. He completed his probation in that cadre on 27.4.1993. However, petitioner applied for leave for taking employment abroad and was granted leave with effect from 29.1.1994. Even though leave was for a period of 5 years, petitioner prematurely reported for duty and under Government Orders petitioner rejoined service on 14.10.1997 again as LDC. However, in the seniority list of UD Clerks published in 1997, petitioner figured as a UDC with effect from 22.11.1993. Later, vide Ext.P9 proceedings dated 27.10.1998, this seniority list was modified and petitioner's date of promotion to the post of UDC was changed to 5.1.1994. However, pursuant to Ext.P12 judgment wherein inter se seniority dispute of some persons was directed to be reconsidered, the Government issued a fresh seniority list of UD Clerks vide Ext.P10 dated 11.10.2001 wherein petitioner does not figure in the list of UD Clerks at all. Petitioner's grievance is against this list whereunder petitioner does not figure as a 2 UDC. However, it is conceded that petitioner was given promotion as UDC by separate proceeding dated 18.7.1998. After promotion of the petitioner no fresh seniority list is prepared. Obviously petitioner is in the seniority list of UD Clerks with date of promotion shown as 18.7.1998. 2. Prayer in the W.P. is for restoration of petitioner's seniority in the cadre of UDC with effect from 5.1.1994. Counsel for the petitioner has submitted that the impugned seniority list is unauthorised because Ext.P12 judgment does not authorise en block revision of seniority of all the employees. According to him, relief granted in Ext.P12 was very specific whereunder this court directed change of inter se seniority of parties contesting the matter. Government Pleader on the other hand submitted that the corrections have been carried out in terms of Ext.P12 judgment and parties to the case have no grievance against implementation of the judgment. So far as the mistake, if any, in the preparation of seniority of others are concerned, Government Pleader pointed out that this court has not considered or decided the seniority of others in the list and therefore, Government was free to correct mistakes, if any, in the seniority list. I am in full agreement with this argument because this court has not considered the case of the petitioner or any of the persons in the list and therefore, mistakes, if any, in regard to seniority of others involved in the list is always 3 amenable for correction. Even though counsel for the petitioner relied on Ext.P16 judgment which clarifies Ext.P12 judgment, I do not find this court has interdicted the Government from correcting other mistakes in the seniority list. So far as petitioner's case is concerned, it is admitted that petitioner went on leave as LDC on 29.1.1994 and he rejoined again in the same cadre on 14.10.1997. There is no proceeding by which petitioner was promoted from the cadre of LDC to UDC. However, petitioner's case is that formal orders are not always issued and as and when vacancy arises in the cadre of UDC, promotion will be made from LDC based on seniority. The petitioner has not attempted to substantiate the correctness of seniority list wherein petitioner was given seniority in the cadre of UDC with effect from 5.1.1994. On the other hand, challenge is confined to Ext.P10 wherein petitioner does not figure as a UDC. I have examined Ext.P10 to find out whether any one junior to petitioner was given posting as UDC on any date prior to the date on which petitioner was promoted. It is seen that the candidate figuring as Sl. No.266 namely, Mr.B.Gopakumar has joined service one day after the petitioner joined service i.e. 21.2.1991 and even though he passed the test qualification in time and was in continuous service, he got promotion as UDC only on 16.3.1995. Therefore, petitioner who joined service on 20.2.1991 cannot get promotion with effect 4 from 5.1.1994 and obviously there was an irregularity in the earlier seniority list relied on by the petitioner. Government Pleader has referred to Appendix XII A of the Rules for grant of leave without allowances for taking employment abroad or within India (KSR) which provides as follows: "The following rules shall regulate the grant of leave without allowances to officers for taking up employment abroad within India. These rules shall not apply in cases of employment in the service of any Public Sector Undertaking, Aided Schools and Private Colleges or anybody incorporated or not, which is wholly or substantially owned, controlled or aided by any State Government or the Government of India. ........... 4. Permanent Officers and non-permanent Officers who have completed probation in their entry cadre in the regular service of Government may be granted leave without allowances under these rules. In such cases, for, and during the currency of, the period of leave, the officers shall lose all service benefits such as the earning of leave including half pay leave, pension, gratuity, increment, etc., and also promotion chances as may arise with reference to their seniority in the posts from which they proceeded on leave. They shall also lose seniority in the higher grade/grades with reference to their juniors who might get promoted to such grade/grades before they rejoin duty." The petitioner's specific grievance with reference to the promotion given to the candidates who figure as 308, 309 and 310 in Ext.P10 has to be considered with reference to the above provision granting leave without allowances. It is admitted that petitioner rejoined as LDC only on 5 14.10.1997 and by then, three persons numbered in Ext.P10 as 308 to 310 were already promoted on 9.10.1997. All of them had almost three years of regular continuous service in the cadre of LDC prior to the promotion. The petitioner after availing leave subject to the above condition cannot complain against promotions given to his juniors while he was on leave. In the circumstances, I do not find any justification for the petitioner to challenge Ext.P10 seniority list. The petitioner was rightly given promotion in the vacancy which arose after he rejoined duty. The W.P. is therefore devoid of any merit and is dismissed. However, regular salary and allowances paid to the petitioner as UDC should not be recovered for full period and recovery should be limited to the arrears paid to the petitioner in the cadre of UDC based on the wrong seniority list from 5.1.1994 onwards. C.N.RAMACHANDRAN NAIR Judge pms