IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 20TH AUGUST 2008 / 29TH SRAVANA 1930 WA.No. 948 of 2006(E) ------------------------------ AGAINST THE JUDGEMENT/ORDER IN OP.28053/2001 Dated 06/06/2005 .................... APPELLANT: THIRD PARTIES ------------------------ 1. K.G.SULOCHANA, JUNIOR SUPERINTENDENT, PALLIPPURAM GRAMA PANCHAYATH, ERNAKULAM DISTRICT. 2. P.G.MANOHARAN, SECRETARY, MUKKANNUR GRAMA PANCHAYATH, ERNAKULAM DISTRICT. 3. T.G.JERSON, HEAD CLERK, PALLIPPURAM GRAMA PANCHAYAT, ERNAKULAM DISTRICT. 4. P.P.RAJAN, U.D.CLERK, KUZHIPPILLY GRAMA PANCHAYATH, ERNAKULAM DISTRICT. 5. KERALA PANCHAYATH EMPLOYEES ASSOCIATION, STATE COMMITTEE, THIRUVANANTHAPURAM, REP. BY ITS GENERAL SECRETARY. BY ADV. SRI.K.JAJU BABU SMT.M.U.VIJAYALAKSHMI SRI.BRIJESH MOHAN RESPONDENTS: PETITIONERS 1 TO 3 & RESPONDENTS 1 & 2 ------------------------ 1. K.N.VENUGOPALAN, JUNIOR SUPERINTENDENT, CHITHARA GRAMA PANCHAYAT, CHITHARA, KOLLAM DISTRICT. W.A. NO.948/2006 2. PHILIP MATHEW, JUNIOR SUPERINTENDENT, O/O. THE DY. DIRECTOR OF PANCHAYATS, PALAKKAD. 3. S.G.MEENA, U.D.CLERK, CHOORNIKKARA GRAMA PANCHAYAT, CHOORNIKKARA VIA., ALUVA, ERNAKULAM DISTRICT. 4. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, LOCAL SELF DEPT., GOVT. SECRETARIAT, TRIVANDRUM. 5. THE DIRECTOR OF PANCHAYATS, THIRUVANANTHAPURAM. ADDL. RESPONDENTS 6 AND 7 IMPLEADED. 6. C.SREEKUMARI, W/O. DSDI HOPINSYH, SHRF 49 YEARS, NOW WORKING AS SECRETARY, EDATHALA GRAMA PANCHAYAT, P.O. EDATHALA NORTH, ALWAYE. 7. T.V. UDAYABHANU, S/O. M.VASU, AGED 49 YEARS, JUNIOR SUPERINTENDENT, ASSISTANT DIRECTOR OF PANCHAYATHS, KAKKANAD, ERNAKULAM DISTRICT. ADDL. RESPONDENTS 6 AND 7 ARE IMPLEADED AS PER ORDER DT. 13.6.06 IN IA. 683/06. ADDL. R8 TO 17 ARE IMPLEADED 8. M.MUKUNDAN, JUNIOR SUPERINTENDENT, PERFORMANCE AUDIT UNIT II, PANDIKADU, OFFICE OF THE ASSISTANT DIRETOR OF PANCHAYATHS MALAPPURAM. 9. A.RAJENDRA KUMAR, SECRETARY, ADIMALI GRAMA PANCHAYAT, IDUKKI DISTRICT. 10. R.BALAKRISHNAN, JUNIOR SUPERINTENDENT, OFFICE OF THE DEPUTY DIRECTOR OF PANCHAYATHS ALAPPUZHA. 11. JAYADEVAN, UPPER DIVISION CLERK, AGALI PANCHAYAT, PALAKKAD. 12. K.K.SASI, UPPER DIVISION CLERK, KUMARAMANGALAM PANCHAYATH, IDUKKI DISTRICT. W.A. NO.948/2006 13. KERALA PANCHAYATH DEPARTMENT MINISTERIAL STAFF ASSOCIATION REPRESENTED BY ITS GENERAL SECRETARY D.SUDHAKARAN, UPPER DIVISION CLERK, PANCHAYATH DIRECTORATE, THIRUVANANTHAPURAM. 14. S.KRISHNAKUMARI, HEAD CLERK, BLAVALLY GRAMA PANCHAYATH, THRISSUR DISTRICT. 15. G.AJAYAN, HEAD CLERK, ADMALI GRAMA PANCHAYATH, IDUKKI DISTRICT. 16. R.MANJULA , UPPER DIVISION CLERK, OFFICE OF THE DEPUTY DIRECTOR OF PANCHAYATH, ERNAKULAM. 17. T.R.KUSUMAM, UPPER DIVISION CLERK, AMBALLUR GRAMA PANCHAYATH, ERNAKULAM DISTRICT. ADDL. RESPONDENTS 8,9 TO 13 and 14 TO 17 ARE IMPLEADED AS PER ORDER DT. 22.6.06 ON IA. NO.714/06, 721/06 AND 734/06 RESPECTIVELY. ADDL. R18 IMPLEADED 18. A.RAMANATHAN, U.D.CLERK, MUDAKKAL GRAMA PANCHAYATH, ELAMBA P.O., ATTINGAL, THIRUVANANTHAPURAM. * ADDL. RESPONDENT 18 IS IMPLEADED AS PER ORDER DT. 5.7.06 ON IA. 776/06. ADDL. R19 TO R 27 IMPLEADED 19. E.SIRAJUDEEN, AGED 46 YEARS, S/O. IBRAHIMKUTTY, CHALIL HOUSE, MEMANA, OACHIRA, WORKING AS U.D.CLERK, KARUNAGAPALLY GRAMA PANCHAYATH. 20. SOLOMON XAVIER, KAYANGATTU HOUSE, RHC4 GOVERNMENT QUARTERS, AYYANTHOLE, THRISSUR( WORKING AS U.D. CLERK, DISTRICT PANCHAYATH, THRISSUR).. 21. P.K.VALSALAN, S/O. P.K.KOCHAPPAN, PAZHANPALLY HOUSE, MADIAKONAM, IRINJALAKUDA( WORKING AS UDC, VALLACHIRA PANCHAYATH) W.P.(C) NO.948/2006 22. S.S. SIVAPRASAD, SIVARAMA MANDIRAM, KUNDARA, KOLLAM. (WORKING AS JUNIOR SUPERINTENDENT, OFFICE OF THE DEPUTY DIRECTOR OF PANCHAYATH, KOLLAM.) 23. N.K.VIJAYAN, S/O. K.G.KUMARAN, AGED 50 YEARS, HEAD CLERK, UDAYANAPURAM PANCHAYATH, PALAKKAD DISTRICT. 24. SATHIAN C.N., S/O. C.N.RAMANGOPALAN, AGED 45 YEARS, HEAD CLERK, POOKOTTUKAVU GRAMA PANCHAYAT, KALLUVAZHI P.O., PALAKKAD DISTRICT. 25. UNNIKRISHNAN, S/O. RAMAN, AGED 44 YEARS, HEAD CLERK, VELLINEZHI GRAMA PANCHAYATH, KULAKKADU P.O., OTTAPPALAM, PALAKKAD DISTRICT. 26. A.MOHANA KRISHNAN, S/O. KUTTAN GUPTAN, AGED 45 YEARS, HEAD CLERK, KADAMPAZHIPURAM GRAMA PANCHAYATH, KADAMPAZHIPURAM P.O., PALAKKAD DISTRICT. 27. ABDUL SALAM C., S/O. MUHAMMED KUTTY HAJI, AGED 45 YEARS, HEAD CLERK, ONGALLUR GRAMA PANCHAYATH, KALLADIPATTA P.O., PATTAMBI, PALAKKAD DISTRICT. ADDL. RESPONDENTS R19 TO R 22 AND R23 TO R27 ARE IMPLEADED AS PER ORDER DT. 28.7.06 ON IA. 788/06 AND IA 816/06 RESPECTIVELY. ADDL. R28 IS IMPLEADED 28. V.K.VALSAMMA, U.D.CLERK, (PERFORMANCE AUDIT UNIT-I, THODUPUZHA) O/O. DEPUTY DIRECTOR OF PANCHAYATH, IDUKKI. ADDL. RESPONDENT R28 IMPLEADED AS PER ORDER DT. 18.9.2006 ON IA. 952/06. ADDL. RESPONDENTS 29 TO 31 IMPLEADED 29. JOJOSE BAIJU, AGED 41 YEARS, S/O. XAVIER, APPATHARA HOUSE, PATHIRAPALLY, P.O., ALEPPEY (U.D.CLERK HIGHER GRADE, OFFICE OF THE ASSISTANT DIRECTOR OF PANCHAYATHS, ALEPPEY). W.A. NO.948/2006 30. V.HARIDASAN, AGED 47 YEARS, S/O. VASUDEVAN, KILIMUKKEL, PUTHUVAL , KEERIKKADU SOUTH, KAYAMBALAM P.O., (U.D.CLERK, HIGHER GRADE,' PUNNAPRA SOUTH GRAMA PANCHAYATH, ALEPPEY. 31. S/O.MURALEEDHARAN, AGED 46 YEARS, S/O. K.K.SUKUMARAN, AVALAKUNNU P.O., ALEPPEY (U.D.CLERK, THANNEER MUKKAM GRAMA PANCHAYATH. ADDL. RESPONDENTS R29 TO R31 IMPLEADED AS PER ORDER DT. 12.10.2006. ON IA. 1012/06. BY ADV. SRI.ELVIN PETER P.J. FOR R1 TO 3 SRI.S.RAMESH FOR R1 TO R3 SRI.P.N.SANTHOSH SRI.S.D.ASOKAN GOVERNMENT PLEADER SRI.SANDESH RAJA K. FOR R4 & R5 SRI.V.A.MUHAMMED FOR ADDL.R6 & R7 SRI.K.E.HAMZA FOR ADDL.R DR.K.P.SATHEESAN FOR ADDL.R9 TO 13 *& R28 SRI.K.K.GOPINATHAN NAIR FOR ADDL.R6TO10 SMT.C.V.RAJALAKSHMI FOR ADDL.R6TO10 SRI.P.C.SASIDHARAN FOR ADDL.R8 SRI.KRB.KAIMAL (SR.) FOR ADDL.R14 TO R17 SRI.VAZHUTHACAD R.NARENDRAN NAIR FOR ADDL.R18 SRI.K.T.SHYAMKUMAR FOR ADDL.R.. SRI.NAVEEN.T FOR R1 TO R3 SRI.S.SHANAVAS KHAN FOR ADDL.R19 TO R22 SRI.K.MOHANA KANNAN FOR ADDL.R23 TO R27 SMT.PRAVITHA A.R FOR ADD.R SRI.ESM.KABEER FOR ADDL.R29 & 31 SMT.SANTHAMMA ISSAC SRI.N.C.THOMAS SRI.CHERIAN THOMAS THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 20/08/2008, ALONG WITH WPC NO. 21300 OF 2006 WPC NO. 18548 OF 2006 WP(C) NO. 25265 OF 2004 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY & THOMAS P. JOSEPH, JJ. ------------------------------- W.A.NO.948 OF 2006, W.P.(C).NOS.25265 OF 2004, 18548 & 21300 OF 2006 () ----------------------------------- Dated this the 20th day of August, 2008 J U D G M E N T KOSHY,J. Government as per G.O.(P).No.151/94/LAD dated 16.6.1994 issued Kerala Panchayath Subordinate Service Rules, 1994, wherein service of the employees of the Panchayath Department and the members of the Panchayath Common Service were integrated with effect from 1.1.1990. Rule 3(2) of the 1994 Rules states that all appointments made to any category of posts between 1.1.1990 and 16.6.1994 shall be revised in accordance with the provisions of these rules. But any persons promoted to any posts during the above period will not be reverted. But further promotion will be considered only as per the rules. Various writ petitions were filed. A Division Bench of this Court in W.A.No.1501/1994 and connected writ appeals considered the matter in detail. W.A.NO.948 OF 2006, W.P.(C).NOS.25265 OF 2004, 18548 & 21300 OF 2006 () 2 The validity of the rule was upheld. After considering various Supreme Court decisions, the writ appeals were disposed of with the following observations: “So with the observation that vested rights of the persons who got promotion on the basis of the rules existing prior to 20th October, 1993, shall not be affected by the amended rules. All these writ appeals are disposed of. They should be treated as promoted with the respective dates of promotion and retrospectivity of the rules cannot change their rights. Consequential benefits may be made expeditiously, in any event, within five months from the date of receipt of a copy of this judgment.” Copy of the judgment is produced as Ext.P2 in O.P.No.28053/2001. The Special Leave Petition is pending before the Honourable Supreme Court. This Court specifically directed in the above Ext.P2 judgment that the vested rights will not be affected and those who were actually promoted will not be affected. Meanwhile, three employees approached this W.A.NO.948 OF 2006, W.P.(C).NOS.25265 OF 2004, 18548 & 21300 OF 2006 () 3 Court by filing O.P.No.28053/01 contending that they were in Panchayath Department. As per the service rules, employees governed by the Panchayath Common Service and the Panchayath Department were integrated as per the Panchayath Rules 1994 with retrospective effect from 1.1.1990. But in the Panchayath Department, there was ban of promotion by Ext.P5 order dated 8.10.1992. It was vacated only by Ext.P6 order. But such a stay order was not issued in the Panchayath Common Service. Those who were in the Panchayath Common service got promotions during the above period, whereas, employees in the Panchayath department did not get promotion, and therefore, the petitioners who were promoted only after vacating the above rule, contented that their date of promotion ought have been adjusted from the due date of promotion under the then existing rules. They contended that immediately by Ext.P6 order dated 21.1.1994, stay was vacated and they were promoted. They ought have been promoted with respect to the earlier promotion, but their due W.A.NO.948 OF 2006, W.P.(C).NOS.25265 OF 2004, 18548 & 21300 OF 2006 () 4 promotion with respective dates was denied only because of the ban order. The learned Single Judge found that even though only vested rights are protected, they had a right and they were promoted before the special rules promulgated in 1994. Their date of promotion is with effect from the earlier date but due to the stay order, they would have got actual promotions and learned Single Judge considered the matter and while disposing the writ petition, observed as follows: “A perusal of Ext.P6 would indicate that promotions made after the vacation of the stay ordered by Ext.P5 would be reviewed according to the Special Rules to be brought into force. This is revealed in Ext.P7 also. I find that the fixing of the day 21.10.1993 as the date on which the vacancies which remained unfilled during the period from 1.1.1990 to 20.10.1993 were deemed to arise, is illegal. The vacancies must be deemed to have arisen on the dates on which they actually arose. The second petitioner is seen to be entitled to get promotion with reference to the date 21.10.1993 and he is at serial No.10 in Ext.P12. As far as the first petitioner is concerned, he is seen at serial No.611 and shown as promoted with effect from 1.11.1997. A perusal of Ext.P12 would show that as many as 107 vacancies are W.A.NO.948 OF 2006, W.P.(C).NOS.25265 OF 2004, 18548 & 21300 OF 2006 () 5 deemed to have arisen on 21.10.1993. Since the first petitioner is shown as promoted with effect from 1.11.1997 and he is at serial No.611 in Ext.P12, by no stretch of imagination, can he have any benefit even if the vacancies which arose as between 1.1.1990 and 20.10.1993 are to be treated as arisen on the actual dates on which they arose. It is clear that his case only can be directed to be considered for promotion in accordance with the Special Rules which came into force with effect from 1.1.1990. So, I reject the case in so far as the first petitioner is concerned. As far as the second petitioner is concerned, I feel that in view of the reasoning in Ext.P12 that the vacancies which arose between 1.1.1990 and 21.10.1993 shall be deemed to have arisen on 21.10.1993, it works injustice against him. In such circumstances, it is clear that Ext.P12 in so far as the second petitioner is concerned, visits him with an illegal and unjust result. Accordingly, Ext.P12 is quashed to the extent that it is necessary to give effect to the directions contained in this judgment. There will be a direction to the respondents 1 and 2 to consider the case of the second petitioner for promotion in accordance with the Special Rules of 1994, reckoning the vacancies which have been treated in one block as having arisen on 21.10.1993 with effect from the actual dates on which the said vacancies occurred and to take steps accordingly. As far as the third petitioner is concerned, if she is entitled in law to any consequential promotion, the W.A.NO.948 OF 2006, W.P.(C).NOS.25265 OF 2004, 18548 & 21300 OF 2006 () 6 same shall be accorded to her. The exercise as directed shall be completed within a period of three months from the date of receipt of a copy of this judgment.” The matter came back before the Department, and there, the department without filing an appeal, decided to implement the above decision by Annexure A1 order of the Director of Panchayaths, Thiruvananthapuram, in Order No.E5- 35506/2001 dated 12.5.2006 in W.A.No.948/2006. It was thought that similarly placed employees are also given the same benefit to avoid any discrimination. Therefore, a provisional list was published. In Annexure A1 it was also stated as follows: “Had there been no stay, the employees of the erstwhile Panchayath Department would have exclusively become eligible for promotion to the respective categories on the dates of such vacancies occurred. Since the above vacancies had not been filled up as and when they occurred before 20.10.1993, W.A.NO.948 OF 2006, W.P.(C).NOS.25265 OF 2004, 18548 & 21300 OF 2006 () 7 to comply with the judgment of the Hon'ble Court the eligible employees are to be notionally promoted on the dates of occurrence of such vacancies. In the above circumstances, the lists containing the names of eligible employees to be considered for promotion to the above mentioned vacancies in each category with the actual dates of occurrence of vacancies without disturbing the position of the employees who have already become eligible for vested right in the light of the Judgment in W.A.No.1501/1994 are herewith published for general information of all concerned.” We agree with the above observations. Therefore, objections were called for. In the writ appeal, it is stated that Annexure A1 was passed in violation of the directions of the judgment in W.A.No.1501/1994. But we note that in Annexure A1, it has been specifically stated that the names of eligible employees to be considered for promotion to the above mentioned vacancies with respect to actual dates of occurrence of vacancies without disturbing the position of the employees W.A.NO.948 OF 2006, W.P.(C).NOS.25265 OF 2004, 18548 & 21300 OF 2006 () 8 who have already become eligible for vested rights in the light of the judgment in W.A.No.1501/1994. It was pointed out that the first three appellants became U.D.Clerks much before 1.1.1990, and their seniority will not be upset by Annexure A1 or any other order. As far as the 4th appellant is concerned, he was promoted only in 2002, whereas, the other persons mentioned in Annexure A1 were promoted immediately after lifting of the ban on promotion in 1994. Therefore, candidates in Annexure A1 are admittedly senior to him and he is not affected. It is argued that in the writ petition, there was a provision to consider three persons names and department went wrong in upsetting the entire seniority. We are of the view that a principle was stated in the judgment and that principle was implemented with regard to all persons concerned and that principle will also concerned with those who were illegally denied promotion with respect to the due date of promotion as per the then existing service rules only because of the ban order on promotion and when such a W.A.NO.948 OF 2006, W.P.(C).NOS.25265 OF 2004, 18548 & 21300 OF 2006 () 9 benefit is decided to be given, it should be given to all similarly placed employees and Government cannot discriminate between persons. Further Annexure A1 is only a provisional order. In Annexure A1 itself, it is stated that any objections or suggestions can be filed, if there any objections, such objections have to be redressed by filing representation as mentioned in Annexure A1, and, we see no ground to interfere in the judgment. Consequently the writ appeal and the connected writ petitions are disposed of. J.B.KOSHY, JUDGE THOMAS P. JOSEPH, JUDGE prp J.B.KOSHY & K.P.BALACHANDRAN, JJ. -------------------------------------------------------- M.F.A.NO. OF 2006 () --------------------------------------------------------- J U D G M E N T --------------------------------------------------------- 4th August, 2008