IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 10TH MARCH 2010 / 19TH PHALGUNA 1931 OP.No. 9552 of 1997(K) ---------------------- PETITIONERS : -------------------- 1. V.SREEKUMARAN NAIR, ASSISTANT DIRECTOR, STATE PLANNING BOARD, THIRUVANANTHAPURAM. 2. K.NADARAJAN, ASSISTNAT DIRECTOR, STATE PLANNING BOARD, THIRUVANANTHAPURAM. 3. D.INDUCHOODAN, DEPUTY DISTRICT PLANNING OFFICER, DISTRICT PLANNING OFFICER, KANNUR. 4. A.MOHAMMADALI, DEPUTY DISTRICT PLANNING OFFICER, DISTRICT PLANNING OFFICE, WAYANAD. BY ADV. MR.P.SANKARANKUTTY NAIR RESPONDENTS : ---------------------- 1. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 2. STATE PLANNING BOARD, REPRESENTED BY SECRETARY, THIRUVANANTHAPURAM -4. 3. V.P.MOHAMMED BASHEER, ASSISTANT DIRECTOR, STATE PLANNING BOARD, THIRUVANANTHAPURAM. 4. N.RADHAKRISHNAN, ASSISTANT DIRECTOR, DIRECTORATE OF TRIBEL WELFARE, VIKAS BHAVAN, THIRUVANANTHAPURAM. 5. K.G.THANKAPPAN, DEPUTY DISTRICT PLANNING OFFICER, DISTRICT PLANNING OFFICE, CIVIL STATION, ALAPPUZHA. 6. B.KAMALASANAN NAIR, ASSISTANT DIRECTOR, O.P.No.9552 of 1997 STATE PLANNING BOARD, THIRUVANANTHAPURAM. 7. V.VALSAN, DEPUTY DISTRICT PLANNING OFFICER, DISTRICT PLANNING OFFICE, CIVIL STATION, MALAPPURAM. 8. M.GEETHADEVI, DEPUTY DISTRICT PLANNING OFFICER, DISTRICT PLANNING OFFICER, KOTTAYAM. 9. M.C.GREGORY, ASSISTANT DIRECTOR, KALLADA IRRIGATION PROJECT, VIKAS BHAVAN, IDUKKI. 10. A.ABDUL SALAM, DEPUTY MANAGER, BACKWARD DEVELOPMENT CORPORATION, REGIONAL OFFICE, KOLLAM. 11. K.P.MONY, DEPUTY DISTRICT PLANNING OFFICER, DISTRICT PLANNING OFFICE, ERNAKULAM. 12. M.ABITHABEEVI, DEPUTY DISTRICT PLANNING OFFICER, DISTRICT PLANNING OFFICER, KOLLAM. 13. K.R.RAMACHANDRAN NAIR, ASSISTANT DIRECTOR, STATE PLANNING BOARD, THIRUVANANTHAPURAM. 14. J.NELSON, ASSISTANT DIRECTOR, STATE PLANNING BOARD, THIRUVANANTHAPURAM. 15. A.S.NEELAMBIKA, ASSISTANT DIRECTOR, STATE PLANNING BOARD, THIRUVANANTHAPURAM. 16. T.MEENAKSHI AMMA, ASSISTANT DIRECTOR, STATE PLANNING BOARD, THIRUVANANTHAPURAM. 17. K.J.ELSAMMA, DEPUTY DISTRICT PLANNING OFFICER, DISTRICT PLANNING OFFICER, KOZHIKODE. 18. K.K.SHYMALA, DEPUTY DISTRICT PLANNING OFFICER, DISTRICT PLANNING OFFICER, THRISSUR. 19. G.VIMALACHANDRAN, ASSISTANT DIRECTOR, STATE PLANNING BOARD, THIRUVANANTHAPURAM. 20. M.C.GEORGE, DEPUTY DISTRICT PLANNING OFFICER, DISTRICT PLANNING OFFICER, IDUKKI. O.P.No.9552 of 1997 21. DEVADAS.P., ASSISTANT DIRECTOR, KALLAD IRRIGATION PROJECT, VIKAS BHAVAN, THIRUVANANTHAPURAM. 22. M.V.RAJAGOPAL, DEPUTY DISTRICT PLANNING OFFICER, DISTRICT PLANNING OFFICE, PATHANAMTHITTA. 23. K.S.SREEKUMAR, ASSISTANT DIRECTOR, STATE PLANNING BOARD, THIRUVANANTHAPURAM. 24. K.NANDAKUMAR, ASSISTANT DIRECTOR, STATE PLANNING BOARD, THIRUVANANTHAPURAM. 25. N.SUNDARESAN, ECONOMIST, ANERT, KESAVADASAPURAM, THIRUVANANTHAPURAM. 26. I.JOSEPH, PROJECT OFFICER, IREP OFFICE, SADAMANDAPURAM.P.O., KOTTARAKKARA. 27. A.SARASWATHY AMMAL, ASSISTANT DIRECTOR, STATE PLANNING BOARD, THIRUVANANTHAPURAM. ADV. MR.N.SUGATHAN GOVERNMENT PLEADER MR.A.J.VARGHESE MR.S.SANTHOSH KUMAR THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 10/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JVT O.P.No.9552 of 1997 APPENDIX Petitioner's Exhibits :- Ext.P1 :- Copy of Order No.E1-3676/85/SPB dt.30.5.1985. Ext.P2 :- Copy of relevant extract of the Order No.E1-4398/86/SPB dt.11.7.86. Ext.P3 :- Copy of Order No.E1-9360/86/SPB dt.15.3.1986. Ext.P3(a) :- Copy of Order No.E1-4398/86/SPB dt.16.10.86. Ext.P3(b) :- Copy of Order No.E1/4398/86/SPB dt.4.12.86. Ext.P3(c) :- Copy of Order No.E1/11020/86/SPB dt.6.12.86. Ext.P4 :- Copy of Judgment in O.P.No.9528/83 dt.28.11.86. Ext.P5 :- Copy of relevant extract of the seniority list dt.1.4.88. Ext.P6 :- Copy of representation dt.7.1.1989. Ext.P7 :- Copy of reply No.10732/88/SPB(L.Dis) Ext.P8 :- Copy of Order E1/8042/88/SPB dt.20.12.88. Ext.P9 :- Copy of Gazette notification dt.2.6.87. Ext.P10 :- Copy of Judgment in O.P.No.2297/89 of High Court of Kerala dt.12.9.1995. Ext.P11 :- Copy of affidavit filed by the 1st respondent in O.P.No.2297/89 dt.25.5.1996. Ext.P11(a) :- Copy of Gradation list as on 1.4.1988. Ext.P12 :- Copy of Order No.E1-4503/95/SPB dt.5.7.1996. Ext.P12(a) :- Copy of Gradation list as on 1.4.1988. Ext.P13 :- Copy of letter No.E1-911/89SPB dt.26.5.1989. Ext.P14 :- Copy of Lawyer notice dt.1.8.1996. Ext.P15 :- Copy of letter No.E1-4503/95 SPB dt.24.8.96. O.P.No.9552 of 1997 Ext.P16 :- Copy of affidavit in C.C.C.No.286/96 dt.12.11.1996. Ext.P17 :- Copy of Reply affidavit in C.C.C.No.286/96 dt.5.12.1996. Ext.P18 :- Copy of Judgment in C.C.C.No.286/96 dt.19.12.1996. Ext.P18 :- Copy of letter dated 3.8.2007. Ext.P19 :- Copy of the reply dt.2.8.2007. Ext.P20 :- Copy of the Government Order G.O.[Rt] 173/86/PLG dt.15.2.1986. Respondent's Exhibits :- Ext.R3(a) :- Copy of Order dt.28.1.1987 issued by the 2nd respondent. Ext.R3(b) :- Copy of Order dt.9.1.1985 issued by the 2nd respondent. Ext.R3(c) :- Copy of Order dt.4.2.1985 issued by the 2nd respondent. Ext.R3(d) :- Copy of Order dt.28.5.1985 issued by the 2nd respondent. Ext.R3(e) :- Copy of G.O.(Ms) No.39/86/Plg. dt.20.5.1986. Ext.R3(f) :- Copy of G.O.(Rt) No.537/86/Plg. dt.24.6.1986. Ext.R3(g) :- Copy of Order dt.1.7.1986 issued by the 2nd respondent. Ext.R3(h) :- Copy of Order dt.11.7.1986 issued by the 2nd respondent. Ext.R3(i) :- Copy of select list issued in Notification dt.18.8.1998. Ext.R3(j) :- Copy of Order dt.22.6.1989 issued by 2nd respondent. Ext.R3(k) :- Copy of select list issued in Notification dt.12.11.1998. //True Copy// P.A. To Judge S. SIRI JAGAN, J ---------------------- O.P No.9552 of 1997 --------------------------- Dated this the 10th day of March 2010 J U D G M E N T The petitioners were direct recruits to the cadre of Research Officers in the Kerala State Planning Service. They were appointed in the State Planning Board. As per the Special Rules, the method of appointment to the post of Research Officer is by transfer from the category of Research Assistant in the State Planning Board or by direct recruitment. 5 vacancies in the category of Research Officers were reported to the Public Service Commission for selection by direct recruitment on 30.7.1983. Pursuant thereto, applications were invited for direct recruitment by Public Service Commission as per notification dated 14.10.1983. At that time, respondents 3 to 28 where having only less than 2 years of service in the post of Research Assistant and therefore they were not qualified for promotion as Research Officer. Allegedly in order to stall direct recruitment, O.P.No.9552 of 1997 -2- respondents 3 to 6 and 10 filed O.P.No.9528 of 1983 challenging the said notification without making the P.S.C or the affected persons as parties in the said original petition. On 23.11.1983 this Court stayed the appointment of the direct recruits. Subsequently, respondents 3 to 28 were provisionally appointed as Research Officers under Rule 9(a)(i) of K.S.& S.S.R allegedly in short term vacancies as per Exts.P1, P2 and P3 to P3(c) orders during 1985-86. O.P.No.9528 of 1983 was disposed of by Ext.P4 judgment dated 28.11.1986 recording that the petitioners in that original petition, who are respondents in this original petition, also were already promoted as Research Officers on provisional basis and observing that they are free to take up the question of regularization/confirmation by filing appropriate representation in that regard. Subsequently, Ext.P5 seniority list of Research Officers as on 01.04.1988 was published in which petitioners were shown as junior to respondents 3 to 28. Despite objections filed by the petitioners, the official respondents were not prepared to change the seniority. In the meanwhile by Ext.P8 order dated 20.12.1988 the 2nd respondent regularized, the O.P.No.9552 of 1997 -3- provisional appointments of respondents 3 to 28 from the dates on which they took charge as Research Officers. Ext.P9 revised select list for the promotion to the category of Research Officers were published on 23.6.1987, wherein respondents 3 to 5 etc. were included. The petitioners challenged Exts.P5, P7, P8 and P9 by filing O.P.No.2297 of 1989. In that original petition this Court passed Ext.P10 judgment, the operative portion of which reads as follows :- “Petitioners four in number were advised on 20.12.1986 by the Public Service Commission to the post of Research Officers as per the Special Rules for Statistics and Economic Service. As per the Special Rules, Research Officers are to be appointed by transfer from the category of Research Assistant employed in the office of the State Planning Board or by direct recruitment. Government published a provisional gradation list of officers in the State Planning Board as on 1st April, 1988. In that seniority list petitioners were shown as juniors to the respondents. Petitioners objected to the ranking by filing Ext.P6 representation. That was rejected by Ext.P7 on the ground that respondents were appointed as Research Officers prior to the date of advice of the petitioners. Petitioners challenge Ext.P7 and the connected seniority list and the decision of the Departmental Promotion Committee regularizing the services of the respondents in the cadre of Research Officer with effect from the date of their provisional promotion to that cadre. 2. Public Service Commission invited applications from eligible candidates for selection to the post of Research Officer as per notification dated 14.10.1983. Some of O.P.No.9552 of 1997 -4- the contesting respondents approached this Court by filing O.P.No.9528 of 1983 challenging the notification. This Court stayed appointment of direct recruits as Research Officers. The order of stay passed in O.P.No.9528 of 1983 was continued till the original petition was dismissed on 28.11.1986. During the pendency of the original petition respondents got provisional promotion to the cadre of Research Officer. They are now regularized in that cadre with effect from the date of their provisional promotion. According to the petitioners regularization of respondents' service in the cadre of Research Officer has adversely affected their seniority. 3. As per Rule 5 of Part II KS & SSR where the normal method of recruitment to any service is neither solely by direct recruitment or solely by transfer. Persons recruited directly should be adjusted to substantive vacancies in the permanent cadre only. The Special Rules governing the service viz; State Planning Service, provides for appointment of Research Offices by transfer from the category of Research Assistant or by direct recruitment. The direct recruits are to be adjusted to the substantive vacancies in the permanent cadre. In other words, the direct recruits must get rank among the officers in the permanent cadre. The cadre strength of Research Officers is not given by the respondents. From Exts.P8 and P9 it is not possible to discern the actual cadre strength of Research Officers. Petitioners who were appointed by direct recruitment should have been adjusted in the permanent substantive vacancies in the permanent cadre. If they are so adjusted, the seniority list of Research Officers as seen in Ext.P5 cannot prima facie hold good. In such a situation the only course that can be adopted by me is to direct respondents 1 and 2 to adjust the petitioners to substantive vacancies in the permanent cadre of Research Officers as on 20.12.1986 and then to prepare a fresh seniority list of Research Officers. This exercise must be carried out by the department as expeditiously O.P.No.9552 of 1997 -5- as possible, at any rate within three months from the date of receipt of a copy of this judgment.” 2. Subsequently Ext.P11(a) Gradation list was published in which the only change made was that as against the petitioners' names it was endorsed that they were accommodated against substantive vacancies for the permanent cadre with effect from 20.12.1986. Subsequently Exts.P12 and P12(a) Gradation list were also issued in which also the petitioners were shown as juniors to party respondents in this original petition. The petitioners are challenging Exts.P7, P8, P9, P12 and P12(a). 3. The Government and the party respondents would oppose the contentions of the petitioners with the help of the counter affidavits filed. 4. Although, I am of the opinion that, by stalling the appointment by direct recruitment there was infact some injustice meted out to the petitioners and the party respondents were allowed to steal a march over the petitioners in the matter of seniority, as things stand today, there are many obstacles for the petitioners to get the reliefs prayed for in this original O.P.No.9552 of 1997 -6- petition. First is Ext.P10 judgment itself. Ext.P10 judgment itself shows that the petitioners had challenged the regularization of the respondents with retrospective effect. But in Ext.P10 judgment this Court did not choose to interfere with the retrospective regularization given to the party respondents. In fact the only relief given in Ext.P10 judgment to the petitioners was to adjust the petitioners to substantive vacancies in the permanent cadre of Research Officers as on 20.12.1986 and to prepare fresh seniority list of Research Officers accordingly. That has been done by the impugned seniority list. In fact the petitioners case was that the party respondents should have been adjusted against substantive vacancies in the permanent cadre subsequent to the appointment of the petitioners in substantive vacancies in permanent cadre. For getting that relief, the retrospective regularization in service of the party respondents ought to have been set aside. In Ext.P10 judgment that was not done although there was a prayer for the same. The petitioners did not choose to challenge the same in an appeal. As such the retrospective regularization in service of O.P.No.9552 of 1997 -7- the party respondents stands confirmed. Although the petitioners challenge the retrospective regularization in this original petition, the same cannot be countenanced since that challenge would be hit by constructive resjudicata because of Ext.P10 judgment. As per the dates of their retrospective regularization, they became Research Officers prior to 20.12.1986, the date of adjustment of the petitioners to substantive vacancies in the permanent cadre of Research Officers. That being so, I do not think that the petitioners can get the reliefs prayed for in this original petition at this point of time. In the above circumstances the Original Petition is dismissed. Sd/- S. SIRI JAGAN, JUDGE //True Copy// P.A. To Judge Jvt