IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR TUESDAY, THE 28TH JULY 2009 / 6TH SRAVANA 1931 WP(C).No. 14730 of 2006(S) -------------------------- OA.579/2003 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH .................... PETITIONER(S): --------------- THE PRINCIPAL ACCOUNTANT GENERAL (AUDIT) KERALA, THIRUVANANTHAPURAM. BY ADV. SRI.JOHN VARGHESE, ASSISTANT SG SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR RESPONDENT: --------------- M.P. GOVINDANKUTTY, AUDIT OFFICER (NOW RETIRED) ACCOUNTANT GENERAL'S OFFICE (AUDIT) THIRUVANANTHAPURAM, (NOW RESIDING AT `AISWARYA', VARTHA NAGAR, PALAKKAD-1). ADV. SRI.U.BALAGANGADHARAN FOR RR1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C)NO.14730/2006 APPENDIX PETITIONER'S EXTS: EXT.P1: COPY OF O.A.No.579/2003 OF THE CAT, ERNAKULAM DT.10.7.2003. EXT.P2: COPY OF THE REPLY STATEMENT FILED BY THE PETITIONER HEREIN IN O.A.NO.579/2003 DT.18.12.2003. EXT.P3: COPY OF THE REJOINDER FILED BY THE RESPONDENT HEREIN IN O.ANO.579/2003 DT.19.1.2004. EXT.P4: COPY OF THE REPLY TO THE REJOINDER FILED BY THE PETITIONER HEREIN IN O.A.NO.579/2003 DT.29.6.2004. EXT.P5: COPY OF THE PETITION FILED BY THE RESPONDENT HEREIN IN O.ANO.579/2003. EXT.P6: COPY OF M.A.NO.319/2005 IN O.ANO.579/2003 EXT.P7: COPY OF THE REPLY STATEMENT FILED BY THE PETITIONER HEREIN IN M.A.NO.319/2005 IN O.ANO.579/2003 DT.25.4.2005. EXT.P8: COPY OF THE ADDITIONAL REPLY STATEMENT FILED BY THE PETITIONER HEREIN IN O.A.NO.579/2003 DT.1.6.2005. EXT.P9: COPY OF THE ARGUMENT NOTE SUBMITTED BY THE PETITIONER HEREIN IN IN O.A.NO.579/2003 DT.20.10.2005. EXT.P10: COPY OF THE ORDER DT.12.12.2005 IN O.A.NO.579/2003 OF THE C.A.T. ERNAKULAM. //TRUE COPY// PA TO JUDGE K. BALAKRISHNAN NAIR & C.T.RAVIKUMAR, JJ. --------------------------------------- W.P.(C) No.14730 OF 2006 --------------------------------------- Dated this the 28th day of July, 2009 J U D G M E N T ~~~~~~~~~~~ Balakrishnan Nair, J. The writ petitioner is the respondent in O.A.No.579/2003. The respondent herein was the applicant. Ext.P1 is the copy of the Original Application. The Original Application was filed challenging Annexure-A2 dated 25.2.2003 issued on behalf of the writ petitioner to the respondent stating that he is not eligible for promotion as Senior Audit Officer as on 1.1.2003, as he has not completed two years' service on that date. 2. The brief facts of the case are the following: Three Audit Officers were promoted as Senior Audit Officers by Annexure-R3 order dated 1.1.2001 produced along with Ext.P2 reply statement filed in answer to the averments in Ext.P1 Original Application. M/s. A.Ismail, K.G.Thomas and K.P.Gopakumaran were the promotees under Annexure-R3. They were promoted with effect from 1.1.2001. But, the report W.P.(C) No.14730/2006 2 regarding the joining duty of Sri.A.Ismail in the promoted post reached the office of the writ petitioner only on 2.1.2001. In the resultant vacancy, the respondent was promoted as Audit Officer on 2.1.2001 and on the same day he joined duty. He is entitled to be promoted as Senior Audit Officer on completion of two years' service in the post of Audit Officer. The dispute between the parties was relating to the date on which he completed two years' service. According to the writ petitioner, he completed two years' service only on 2.1.2003, whereas the respondent/applicant canvassed for the position that he completed two years service on 1.1.2003 and therefore he should be promoted on that date. 3. Normally, promotions are ordered having regard to the date of occurrence of vacancies and acquisition of qualification by the incumbent concerned. It is not in dispute that there was a vacancy available on 1.1.2003 in the cadre of Senior Audit Officer to accommodate the applicant. But, as per the executive orders governing the field, if a candidate is not qualified and therefore not promoted on 1.1.2003, he will be W.P.(C) No.14730/2006 3 promoted only on 1.1.2004 even if he becomes qualified on 2.1.2003. We do not find any such provision in the Recruitment Rules, a copy of which was produced as Annexure-A6 along with Ext.P3 rejoinder filed by the applicant. No one has challenged the validity of that stipulation. Prima facie, the said stipulation appears to be strange. Anyway, we do not propose to comment on that point, as there are no pleadings or prayers concerning the same. It is common ground that Sri.Ismail was ordered to be promoted on 1.1.2001, but owing to delay from the part of the Sri. Ismail or from the part of the officials concerned to report his assumption of charge, the applicant could be promoted as Audit Officer only on 2.1.2001. Can the said delay have the effect of delaying the promotion of the applicant by one year was the point that was raised for decision before the C.A.T. The C.A.T. found in favour of the applicant. Hence, this Writ Petition by the respondent in the Original Application. 4. If a person commences the service on 2.1.2001, he will complete two years service on 1.1.2003. Further, the delay from the part of Sri.Ismail or somebody else in reporting about W.P.(C) No.14730/2006 4 his assumption of charge cannot affect the rights or claims of the applicant. In view of the above position, we find no reason to interfere with the view taken by the C.A.T. A plausible view on the facts of the case has been taken. Accordingly, the Writ Petition fails and it is dismissed. (K.BALAKRISHNAN NAIR, JUDGE) (C.T.RAVIKUMAR, JUDGE) ps