IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN FRIDAY, THE 6TH AUGUST 2010 / 15TH SRAVANA 1932 WA.No. 2784 of 2009() --------------------- AGAINST THE JUDGEMENT IN WPC.7207/2007 Dated 10/09/2009 .................... APPELLANT(S)/RESPONDENTS 2,3, AND 4:- ----------------------------------------------------------- 1. INSTITUTE OF HUMAN RESOURCE DEVELOPMENT THIRUVANANTHAPURAM, REPRESENTED BY ITS DIRECTOR. 2. DIRECTOR, INSTITUTE OF HUMAN RESOURCE DEVELOPMENT, THIRUVANANTHAPURAM. 3. SCREENING COMMITTEE, INSTITUTE OF HUMAN RESOURCE DEVELOPMENT THIRUVANANTHAPURAM, REPRESENTED BY ITS CHAIRMAN. BY ADV. SRI.N.N. SUGUNAPALAN, SENIOR ADVOCATE SRI.S.SUJIN, SC, IHRD SHRI M.K.CHANDRAMOHAN DAS,SC,IHRD RESPONDENT(S)/PETITIONER & RESPONDENTS 1, 5 TO 20:- ------------------------------------------------------------------------------------ 1. MUSTAPHA KAMAL, AGED 44 YEARS, S/O. K.M.MUHAMMED, SENIOR OFFICE ASSISTANT MODEL ENGINEERING COLLEGE, ERNAKULAM. 2. STATE OF KERALA, REPRESENTED BY ITS PRINCIPAL SECRETARY GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM. 3. HARIKUMAR.S. HEAD CLERK, IHRD, HEAD QUARTERS, PRAJOE TOWERS, TRIVANDRUM-14. 4. DANLEY MATY JOHNSON, HEAD CLERK, COLLEGE OF ENGINEERING CHENGANNUR, ALAPPUZHA DISTRICT. 5. SUJATHA.A.P. HEAD CLERK, TECHNICAL HIGHER SECONDARY SCHOOL MUTHUVALLUR, MALAPPURAM DISTRICT. (............2) -: 2 :- 6. ANITHA.D.S. HEAD CLERK, TECHNICAL HIGHER SECONDARY SCHOOL ATTINGAL TRIVANDRUM DISTRICT. 7. ASHA.K.PILLAI, HEAD CLERK, COLLEGE OF APPLIED SCIENCE, MAVELIKKARA KOLLAM DISTRICT. 8. ANITHA KUMAR.P. HEAD CLERK, TECHNICAL HIGHER SECONDARY SCHOOL, MUTTADA, TRIVANDRUM. 9. SAVEEDA BEEVI.M.M. HEAD CLERK, MODEL ENGINEERING COLLEGE, THRIKKAKAR, ERNAKULAM DISTRICT. 10. NANDAN.M.K., HEAD CLERK, TECHNICAL HIGHER SECONDARY SCHOOL CHETTUVA, THRISSUR DISTRICT. 11. RAJESH N.A. HEAD CLERK, MODEL ENGINEERING COLLEGE, THRIKKAKARA, ERNAKULAM DISTRICT. 12. VINOD KUMAR.R. HEAD CLERK, IHRD HEAD QUARTERS, PRAJOE TOWERS TRIVANDRUM-14. 13. ROOPESH CHANDRAN NAIR.M. COLLEGE OF ENGINEERING, ATTINGAL, TRIVANDRUM-14. 14. ABDUL NAZAR.T., HEAD CLERK, TCHNICAL HIGHER SECONDARY SCHOOL VATTAKULAM, MALAPPURAM . 15. KHADEEJA V.S. HEAD CLERK, MODEL TECHNICAL HIGHER SECONDARY SCHOOL KAPRASSERY, ERNAKULAM DISTRICT. 16. MAJEED.P.K. HEAD CLERK, COLLEGE OF APPLIED SCIENCE , KUTHUPARAMBU, KANNUR DISTRICT. 17. SMT. JYOTHILEKSHMI.P.P. TECHNICAL HIGHER SECONDARY SCHOOL KALLANGADI KUNJUMUHAMMED MEMORIAL BUILDING, NEAR PANCHAYATH COMMUNITY HALL, KODUVALLY, CALICUT-673572. 18. M.G.UNIVERSITY, KOTTAYAM, REPRESENTD BY ITS REGISTRAR. ADV.SRI.R.SREERAJ, FOR R1. GOVT. PLEADER SMT.T.B.REMANI, FOR R2. ADV. SRI.G.S.REGHUNATH FOR R3 & 6 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 02/08/2010, THE COURT ON 06/08/2010 DELIVERED THE FOLLOWING: C.N.RAMACHANDRAN NAIR & P.S.GOPINATHAN, JJ. = = = = = = = = = = = = = = Writ Appeal No.2784 of 2009. = = = = = = = = = = = = = = Dated this the 6th day of August, 2010. J U D G M E N T Gopinathan, J. This belated appeal was filed by respondents 2, 3 and 4 in WP(C)No.7207/2007. The first respondent herein entered the service of the first appellant on 10.11.1992 as a Junior Office Assistant. While so, he availed leave without allowance as per Ext.R2(a) with effect from 6.2.1997 to take employment abroad and joined back in duty on 16.1.2000. Thereafter he was promoted as Office Assistant/LDC with effect from 17.1.2000. He was further promoted as Senior Office Assistant/UDC with effect from 31.10.2002 and his period of probation in the post of Senior Office Assistant/UDC was completed on 31.10.2003. He, having 8 years service in his credit, is eligible for WA.No.2784/2009. -: 2 :- promotion as Head Clerk. By Ext.P1 order dated 10.9.2004, 18 Senior Office assistants were promoted as Head Clerks with effect from 22.7.2003 as against 20 vacancies. Thereafter, by Ext.P2 dated 28.4.2005, 14 persons were also promoted. Since the promotion of the petitioner was not considered, he made representation. Though, Ext.P2 was initially kept in abeyance, later it was decided to implement the same. Despite Ext.P2(b) representation dated 28.6.2006 filed by the first respondent, no order was passed. Thereafter, the petitioner filed a writ petition as WP(C)No.17673/2006 whereby the appellants were directed to dispose of the representation made by the first respondent. Consequently, the representation was considered by the appellants and rejected by Ext.P4 order. Assailing the same another writ petition as WP(C) No.28727/2006 was filed. By Ext.P5 judgment, Ext.P4 order was set aside and the appellants were directed to reconsider the representation filed by the first respondent. WA.No.2784/2009. -: 3 :- By Ext.P6 order, the representation was again rejected. Ext.P13 is the order issued by the appellants to implement Ext.P2. Ext.P14 is a proceedings referred in Ext.P13. Assailing Exts.P2, P6, P13, P14 and P1 and seeking order of promotion, the writ petition was filed. Yet another writ petition as WP(C)No.30210/2008 was filed claiming further promotion to the post of Junior Superintendent. 2. The fact that the first respondent is qualified to be promoted as Head Clerk is not disputed. The appellants took a contention that the seniors of the first respondent, who were ineligible for promotion, were waiting for promotion after getting eligibility and in the above circumstance the claim of the first respondent could not be considered. The learned single Judge by judgment dated 10.9.2009 allowed the writ petition. The other writ petition was disposed as the claim thereon would depend upon the outcome of the judgment impugned. Now, this appeal. WA.No.2784/2009. -: 4 :- 3. It is not disputed that the claim for promotion of an eligible junior cannot be denied for the reason that his seniors in the cadre are not eligible for promotion. According to the learned counsel for the appellants, that position is applicable only in a case where promotion is made on seniority basis and further contended that here in this case it is purely selection process as per the rules. Going by Ext.P2(d) minutes in para.3 of page 4, we find that the earlier appointments of Head Clerks were made by promotion purely on the basis of seniority in the feeder category of Senior Office Assistant. In the above circumstance, we find little merit in the submission made by the learned counsel for the appellants that the appointment of Head Clerk is on the basis of selection. Though, rules stipulate a selection process what is practiced is pure promotion on the basis of the seniority in the cadre. Even if it is assumed that the posting of Head Clerks is by selection process, that process cannot be delayed on ground that WA.No.2784/2009. -: 5 :- some of the seniors in the cadre are ineligible. From the materials on record, we find that a Senior Office Assistant with 8 years experience in office is eligible to be promoted as Head Clerk. As observed by the learned single Judge, the so called seniors in the cadre of the Senior Office Assistant are persons who had obtained promotion while the first respondent was on leave and they have no required experience as Office Assistant to claim posting as Head Clerk. Whereas, counting the experience of the first respondent as Office Assistant before he entering leave, he is entitled to be promoted. His promotion cannot be blocked for the reason that his seniors in the category are ineligible for promotion. The eligibility for promotion has to be reckoned with reference to the date of occurrence of the vacancy. The learned single Judge is perfectly correct in allowing the writ petition. We find no irregularity or illegality in the judgment impugned to be rectified in appeal. The appeal is devoid of merits. In the above WA.No.2784/2009. -: 6 :- circumstance, the writ appeal as well as the petition to condone the delay are dismissed. No costs. C.N.RAMACHANDRAN NAIR, (Judge) P.S.GOPINATHAN, (Judge) Kvs/-