IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR FRIDAY, THE 18TH JULY 2008 / 27TH ASHADHA 1930 WP(C).No. 14856 of 2005(R) -------------------------- PETITIONER: ------------ P.J. GARVASEES, S/O. JOSEPH, AGED 34, SCIENTIFIC ASSISTANT (DOCUMENTS), FORENSIC SCIENCE LABORATORY UNIT, DISTRICT CRIME RECORDS BUREAU, IDUKKI. BY ADV. SRI.KALEESWARAM RAJ RESPONDENTS: ------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, HOME DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR GENERAL OF POLICE, POLICE HEAD QUARTERS, THIRUVANANTHAPURAM. 3. THE DIRECTOR, FORENSIC SCIENCE LABORATORY, THIRUVANANTHAPURAM. 4. THE PRIINCIPAL SECRETARY, HOME DEPARTMENT AND CONVENOR, DEPARTMENTAL PROMOTION COMMITTEE (HIGHER) FOR FORENSIC SCIENCE LABORATORY, HOME DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 5. LATHA DEVI M.A., ASSISTANT DIRECTOR (DOCUMENTS-CIVIL), FORENSIC SCIENCE LABORATORY, THIRUVANANTHAPURAM. BY ADV. SRI.N.SUGATHAN FOR R5 SRI.A.V.RAMAKRISHNA PANICKER FOR R5 SMT.VARSHA BHASKAR FOR R5 R1 TO R4 BY G.P. SMT.SMITHA SUKUMARAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: P1: TRUE COPY OF ORDER DT.28.11.1998 ISSUED BY R2. P2: TRUE OCPY OF S.O.NO.25/98 DT.5.12.1998 ISSUED BY R3. P3: TRUE COPY OF ORDER DT.7.4.2004 PUBLISHING SENIORITY LIST OF SCIENTIFIC ASSISTANTS, FORENSIC SCIENCE LABORATORY. P4: TRUE COPY OF REPRESENTATION DT.4.12.2003 SUBMITTED BY THE PETITIONER BEFORE R2. P5: .DO. DT.5.12.2003. P6: TRUE COPY OF REPRESENTATION DT.12.2.2004 SUBMITTED BY PETITIONER BEFORE R1. P7: TRUE COPY OF REPRESENTATION DT.2.4.2004 SUBMITTED BY PETITIONER BEFORE R2. P8: TRUE COPY OF REPRESENTATION DT.2.4.2004 SUBMITTED BY PETITIONER BEFORE R4. P9: TRUE COPY OF G.O. DT.16.10.2004. P10: TRUE COPY OF REPRESENTATION DT.12.11.2004 SUBMITTED BY PETITIONER BEFORE R4. P11: .DO. DT.27.11.2004 .DO. R1. P12: TRUE COPY OF JUDGMENT OF THIS HON'BLE COURT IN WPC NO.36124/2004 (A) DT.20.12.2004. P13: TRUE COPY OF G.O. DT.9.3.2005. P14: TRUE COPY OF G.O. DT.18.3.2005. RESPONDENT'S EXHIBITS: R5(a): TRUE COPY OF ORDER DT.11.9.98. R5(b): .DO. DT.18.1.99. R5(c): .DO. DT.25.1.99. R5(d): .DO. DT.19.12.1998. R5(e): .DO. DT.5.3.99. R5(f): .DO. DT.19.3.99. R5(g): TRUE COPY OF D.G.O. DT.23.10.2001. R5(h): .DO. DT.17.3.2003. R5(i): TRUE COPY OF G.O. DT.10.11.2004. TRUE COPY C.R. C.N.RAMACHANDRAN NAIR, J. .................................................................... W.P.(C) No.14856 of 2005 .................................................................... Dated this the 18th day of July, 2008. JUDGMENT The petitioner is challenging the select list wherefrom 5th respondent was appointed as Assistant Director (Documents Civil) in the Forensic Science Laboratory, Trivandrum. According to the petitioner, petitioner having joined service earlier than the 5th respondent, should have been selected. I heard counsel appearing for the petitioner and counsel appearing for the 5th respondent and Government Pleader. The petitioner, 5th respondent and three others were advised by the PSC for appointment to the post of Scientific Assistant in the Forensic Science Laboratory simultaneously. In the advise list, 5th respondent admittedly stood as No.1 and petitioner was the 5th. However, since 5th respondent was in another department at the time of selection and was on maternity leave, she joined service as Scientific Assistant after the petitioner joined. The petitioner joined on 3.12.1998 and the 5th respondent joined on 27.1.1999. According to the petitioner, petitioner qualified for promotion by acquiring five years' service in terms of the Special Rules on 2.12.2003. Admittedly when the vacancy first arose on 9.4.2003, no one was qualified for promotion. 2 However, petitioner's case is that since petitioner was the first to be qualified, he should have been appointed to the post of Assistant Director. The case of the 5th respondent on the other hand is that all those who joined as Scientific Assistant were to undergo training for six months and the said training was completed on 21.9.1999 and since all qualified simultaneously, selection has to be made based on seniority in the feeder category. Government Pleader clarified that when DPC met on 11.9.2004, they considered the 5th respondent along with one Sulekha who were holding position No.1 and 2 respectively in the seniority list of Scientific Assistants and between them, the senior namely, 5th respondent got selected. 2. Rule 2(b) of the Special Rules provides the method for appointment among others to the post of Assistant Director from the post of Scientific Assistant. The said Rule is as follows: "R.2(b) Promotion to the posts of Director and Joint Director and transfer of Scientific Assistant as Assistant Directors shall be made from select lists of eligible persons prepared on the basis of merit and ability, seniority being considered only when merit and ability are approximately equal. Persons included in a select list shall be ranked in the order of their seniority." Rule 28(b) of KS & SSR containing the principle for promotion is the same as contained in the abovesaid Rule. It is clear from the above that selection from among qualified persons have to be based on merit and 3 ability. If someone is found exceptionally able and found superior to others among the persons considered, he will get listed above others irrespective of whether he is the seniormost in the feeder category or not. Seniority comes into play only when those considered for selection rank on merit and ability approximately equal. In other words, seniority applies only among equals or approximately equals and the exceptional or outstanding stand separately. However, since no one was found to have exceptional merit, this principle was not applied. Note to Rule 28(6) specifies the minimum number of candidates to be considered while selection is made for promotion. It says that the field of choice shall as far as possible be thrice and atleast twice the number of vacancies expected within the year plus the number of superceded officers of the previous year, for eg:- if there are two anticipated vacancies and the number of superceded officers of the previous years is two, the panel for field of choice shall normally contain 10 names (6+4) or atleast 8 (4+4). In this case there is only one post to be filled up in the cadre of Assistant Director by promotion and there was noone from superceded cateogry. It is seen that two persons who were 1 and 2 in the seniority list of Scientific Assistants, were considered and the 5th respondent was selected between them, which is not questioned by the other person i.e. No.2 in the list who lost to the 5th 4 respondent in the selection process. The petitioner admittedly stands below in the list and his claim is only based on his joining in the cadre of Scientific Assistant one month before the 5th respondent. As already noticed, 5th respondent was No.1 in the advise list sent by the PSC wherein petitioner was No.5. Similarly, petitioner, 5th respondent and three others underwent training together and all of them completed six months training on 21.9.1999. In other words, all of them had acquired qualification after training on the very same date i.e. 20.9.2004. I do not think petitioner can claim any seniority over the 5th respondent because 5th respondent was senior to him in the advise list and she continues to be senior in the seniority list prepared for Scientific Assistants. Division Bench of this court in NANDANAN V. JYOTHISH KUMAR reported in 2004(1) KLT 142 stated that training period will not be counted as qualifying service for promotion. In this case since all the candidates had to undergo six months' training, required qualification for promotion to the higher grade i.e. five years' experience, was acquired by all the candidates simultaneously. Therefore, seniority was rightly reckoned based on advise memo and the seniority list prepared in the cadre of Scientific Assistant wherein 5th respondent stood No.1 and petitioner No.5. I do not think any Rule is violated in the selection and appointment of 5th respondent to the post of 5 Assistant Director. Counsel for the petitioner relied on Rule 28(13)(iA) of KS & SSR and contended that if training period is excluded, nobody was qualified when the DPC held it's meeting on 11.8.2004 and therefore, 5th respondent should not have been selected by the DPC in that meeting. I do not think there is any justification to interfere with the appointment of 5th respondent on this ground because if this argument is accepted, petitioner was also not qualified to be considered by the DPC which held it's meeting on 11.8.2004. Since the post was already lying vacant, there was nothing wrong for the DPC to have considered the eligible persons who are acquiring experience just within a month from the date of holding of the DPC meeting. In fact, the select list was published only after the 5th respondent acquired the required experience. Therefore, the selection and appointment of 5th respondent is not to be interfered on this ground. As already pointed out it is to be noted that the person who was considered along with 5th respondent and who lost in the selection process who stood as No.2 in the seniority list of Scientific Assistants has not even questioned the appointment of 5th respondent. In any case since I have already held that the 5th respondent was senior to the petitioner in the feeder category and since DPC has completed the selection process for promotion in accordance with the Rules and since selection of the 5th respondent was not 6 contested by the person who participated and lost in the selection process, there is no scope for challenge of appointment of the 5th respondent by the petitioner who was not even considered for promotion by the DPC as he was junior in the feeder category. The W.P. is therefore, devoid of any merit and is dismissed. C.N.RAMACHANDRAN NAIR Judge pms