IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 3RD APRIL 2009 / 13TH CHAITHRA 1931 OP.No. 38301 of 2002(I) ----------------------------------- PETITIONER: -------------------- SMT.A.BABY, SENIOR CLERK, MARINE PRODUCTS EXPORT DEVELOPMENT AUTHORITY (M.P.E.D.A.), COCHIN-36. BY ADVS. MR.P.SANKARANKUTTY NAIR MR.KOSHY GEORGE MR.T.V.AJAYAKUMAR RESPONDENT(S): ------------------------ 1. THE CHAIRMAN, MARINE PRODUCTS EXPORT DEVELOPMENT AUTHORITY (MPEDA), COCHIN-36. 2. THE SECRETARY & LAISON OFFICER FOR SC/ST, MARINE PRODOUCTS EXPORT DEVELOPMENT AUTHORITY, KOCHI-36. 3. SMT.S.REMA DEVI, ASSISTANT, MARINE PRODUCTS EXPORT DEVELOPMENT AUTHORITY, KOCHI-36. 4. UNION OF INDIA, REPRESENTED BY SECRETARY, MINISTRY OF COMMERCE, NEW DELHI. 5. THE DEPUTY DIRECTOR (PERS), MARINE PRODUCTS EXPORT DEVELOPMENT AUTHORITY, KOCHI-36. ADDL.R6: AYSHA AYYAPPAN, JUNIOR SUPERINTENDENT, THE MAINRE PRODUCTS EXPORTS DEVELOPMENT AUTHORITY (MPEDA), COCHIN – 36. ** (IMPLEADED AS ADDL.R6 REPRESENTATIVE CAPACITY REPRESENTING 'JUNIOR CLERKS' PROMOTED TO THE POST OF ASSISTANT (HIGHER GRADE) IN THE MARINE PRODUCTS EXPORTS DEVELOPMENT AUTHORITY AS PER ORDER DT. 26.11.2008 IN IA NO.15020/08.) ** (THE WORDS 'JUNIOR CLERKS' IS SUBSTITUED BY THE WORDS 'SENIOR CLERK/JUNIOR STENO' AND THE WORDS 'ASSISTANT (HIGHER GRADE)' IS CORRECTED AS ASSISTANT AS PER ORDER DT 5/12/08 IN IA 15397/08) ADVS. MR.C.S.ABDUL SAMMAD, ADDL.CGSC FOR R4 MR.B.S.KRISHNAN, SENIOR ADVOCATE MR.K.ANAND (A.201) MS.LATHA KRISHNAN MR.ABRAHAM THOMAS, CGC FOR R4 & 5 OP.No. 38301 of 2002 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 03 /04 /2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP.No. 38301 of 2002 APPENDIX PETITIONER'S EXHIBITS EXT.P1: COPY OF LIST OF PERSONS WHO WERE PROMOTED INCLUDING A.K. THANKAPPAN AND S. REMADEVI. EXT.P2: COPY OF RECORD NO.57 SHOWING THE ELIGIBILITY OF PERSONS PROMOTED TO THE POST OF ASSISTANT. EXT.P3: COPY OF REPRESENTATION DATED 7.6.2002. EXT.P4: COPY OF LETTER DTD 26.6.2002. EXT.P5: COPY OF LETTER DTD 24.4.2002. EXT.P6: COPY OF LETTER DTD 1.7.2002. EXT.P7: COPY OF REPRESENTATION DTD 28.6.2002. EXT.P8: COPY OF REPRESENTATION DTD 2.8.2002. EXT.P9: COPY OF REPRESENTATION DTD 19.9.2002. EXT.P10: COPY OF MEMORANDUM DTD 27.11.2002. EXT.P11: COPY OF ORDER DTD 31.12.2002 NO.12/1/PERS/HO ISSUED BY THE 5TH RESPONDENT. EXT.P12: COPY OF ORDER DTD 25.10.2003 PASSED BY THE MPEDA. EXT.P13: COPY OF THE TEXT OF DEPT. OH.NO.43038/2/92 ESTT.(SCT) DATED 31.12.1992. EXT.P14: COPY OF REPRESENTATION DTD 23.3.2007. EXT.P15: COPY OF LETTER DTD 26.4.2007. EXT.P16: COPY OF INFORMATION MINUTES AND COPY OF THE IOM DTD 30.7.2007. EXT.P16(a): COPY OF INFORMATION DTD 26.10.2006. EXT.P17: COPY OF LETTER DTD 10.8.2007. EXT.P18: COPY OF OFFICE RECORDS OF MPEDA THE INCUMBENTS IN THE POST OF ASSISTANT SINCE 1982. EXT.P18(a): COPY OF THE OFFICE LIST OF INCUMBENTS FOR THE POST OF ASSISTANT SINCE 1972. EXT.P19: COPY OF REPRESENTATION DTD 25.5.2007. EXT.P20: COPY OF LETTER OF THE DEVELOPMENT COMMISSIONER TO IMPLEMENT THE APPROVED PROPOSAL NO.A 111.22(7) OF IIITH MPEDA AUTHORITY MEETING HELD ON 2006 DTD 5.6.2007. EXT.P21: COPY OF PROCEEDINGS DTD 7.6.2007. EXT.P22: COPY OF PROCEEDINGS DTD 11.7.2007. OP.No. 38301 of 2002 EXT.P23: COPY OF OFFICE ORDER PART II NO.2416 DTED 20.3.2007 EXT.P24: COPY OF OFFICE ORDER NO.PART II NO.1972 DTD 27.11.2003. EXT.P25: COPY OF ORDER DTD 17.12.1998. EXT.P25(a): COPY OF ORDER DTD 19.9.2001. EXT.P26: COPY OF OFFICE ORDER DTD 16.11.2005. EXT.P27: COPY OF THE O.M.NO.36028/17/2001-ESTT.[RES] DTD 11.7.2002. EXT.P28: COPY OF COMBINED SENIORITY LIST OF SR. CLERK/JR.STENOGRAPHER & ASSISTANT. EXT.P28(a): COPY OF RELEVANT EXTRACT PROVISIONAL LIST OF ASST./ACCOUNTANT ASST./TECHNICAL ASSISTANT. EXT.P29: COPY OF THE 40 POINT VACANCY BASED MODEL ROSTER. EXT.P30: COPY OF THE PROMOTED FROM THE POST OF ASST.AS JR. SUPERINTENDENT ON 23-11-1994. EXT.P31: COPY OF ORDER DTD 5.6.2001. EXT.P32: COPY OF O.M.NO.36012/2/96-ESTT.CR DTD 2.7.1997. EXT.P33: COPY OF ANNEXURE III EXT.P32 O.M. DTD 2.7.1997. EXT.P34: COPY OF MINUTES OF THE AUTHORITY MEETING W.E.F13.11.1997. EXT.P35: COPY OF LETTER DTD 11.6.2007 ADDRESSED TO THE 1ST RESPONDENT. EXT.P36: COPY OF REPRESENTATION DTD 28.12.2007. EXT.P36(a): COPY OF LIST OF INCUMBENTS IN THE ASSISTANT POST SINCE 1982. EXT.P37: COPY OF OFFICE ORDER DTD 13.2.2008 OF 2ND RESPONDENT. EXT.P38: COPY OF REPRESENTATION DTD 15.2.2008. EXT.P39: COPY OF LETTER DTD 20.2.2008. EXT.P40: COPY OF LETTER DTD 14.3.2008. EXT.P41: COPY OF LIST OF MEMBERS OF THE AUTHORITY. EXT.P42: COPY OF RELEVANT EXTRACT OF THE MPEDA RULES. EXT.P43: COPY OF THE DETAILS OF AUTHORITY MEETING FROM 2.6.2005 TO 20.1.2009. RESPONDENTS' EXHIBITS EXT.R1; COPY OF MODEL ROSTER FOR PROMOTION FOR CADRE STRENGTH UPTO 13 POSTS. EXT.R2: COPY OF EXTRACT OF CHAPTER 9, PAGES 135-143 (8TH EDITION-1993). OP.No. 38301 of 2002 EXT.R3: COPY OF OM NO.22011/02 ESTT.(D). EXT.R4: COPY OF RELEVANT PAGE OF BASIC RESOLUTION. EXT.R5: COPY OF SENIORITY LIST OF EMPLOYEES. TRUE COPY PA TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= O.P. No. 38301 of 2002 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 3rd April, 2009. J U D G M E N T The petitioner is an employee of the Marine Products Export Development Authority, which is admittedly a State or other authority coming within the purview of Article 12 of the Constitution of India, against which a writ petition under Article is maintainable. The petitioner seeks the following reliefs: “a) Call for the records of reservation of Scheduled Caste/Scheduled Tribe candidates to the post of Assistants in the Marine Products Export Development Authority; b) To issue a writ in the nature of mandamus directing the MPEDA to prepare and maintain a roster showing vacancies for reservation for SC/ST candidates for promotion to the post of Assistants; c) To direct the MPEDA to promote the petitioner as Assistant in the vacancy created due to the promotion of Smt. T. Priyamvada; d) To declare that the post vacated by Smt. T. Priyamvada is a reserved post for Scheduled Caste and that the third respondent is not eligible for promotion to the said post; e) For any other and further reliefs as this Hon'ble Court may deem just and necessary in the facts and circumstances of the case; f) To call for the records leading to Ext. P 12 and to quash the same by issuing a writ in the nature of certiorari; g) To call for the vacancy based roster and post based roster kept by the administration for scheduled caste and scheduled tribe for the purpose of promotion to Assistants and Technical Assistants post and also the general seniority and vacancy position during the pendency of the O.P; h) To issue a writ of mandamus or other appropriate writ, order or direction directing the respondents 1 & 2 to promote the petitioner as Assistant in the vacancy reserved for the Scheduled Caste w.e.f. 01/12/1994; i) To issue a writ of mandamus or other appropriate writ, order or direction directing the respondents 1 & 2 to promote the petitioner as Assistant in the carried forward post of reserved for O.P. . No. 38301/02 -: 2 :- the Scheduled Caste w.e.f. 13/11/1997 in implementation of Ext. P 16 decision of the Authority in the 111th meeting held on 26/10/2006; j) To issue a writ of mandamus or other appropriate writ, order or direction directing the respondents 1 & 2 to lift the ban imposed by the 2nd respondent in implementing Ext. P 16 decision of the Authority as per Ext. P 16(a) and to implement the same forthwith; k) To issue a writ of mandamus or other appropriate writ, direction or order directing the respondents 1 & 2 to grant all the consequential service benefits including the arrears of salary accordingly.” 2. The matter was elaborately heard on 3-2-2009. I was inclined to accept the contention of the petitioner regarding her eligibility for promotion with effect from an anterior date. However, at that time, the learned counsel for the MPEDA submitted that since Ext. P16 decision of the Authority has only been kept in abeyance by Ext. P 16(a), the Authority may be given another chance to take a decision on the matter. Therefore, I passed the following order: “In this original petition the petitioner stakes a claim for promotion to the post of Assistant in the Marine Products Export Development Authority with effect from 13.11.1997 in a roster point vacancy, which, according to the petitioner, should have gone to a Scheduled Caste candidate and the petitioner is the senior most Scheduled Caste candidate in service entitled to be promoted in that vacancy. According to the petitioner, prior to 2.7.1997 the application of reservation was vacancy based in the sense that vacancies arising should be filled up on the basis of the 40 point roster. According to the petitioner, going by the same, the seventh vacancy should have been filled up by a Scheduled Caste candidate and the petitioner was the senior most Scheduled Caste candidate available. The petitioner submits that one Sri.A.K.Thankappan was promoted on 14.10.1991. Sri.A.K.Thankappan was a Scheduled Caste candidate. But, according to the petitioner, the said Sri.A.K.Thankappan was not promoted in a roster point applicable to a Scheduled Caste candidate, but to an unreserved vacancy in accordance with his regular seniority. The petitioner would contend that this is clear from the fact that one Smt.T.Priyamvada who was an unreserved candidate, and Sri.A.K.Thankappan were promoted on the same O.P. . No. 38301/02 -: 3 :- date viz., 14.10.1991. The petitioner points out that in the counter affidavit the contention of the respondents is that Sri.A.K.Thankappan was accommodated against a carry-forward reserved vacancy earmarked for a Scheduled Caste candidate. If that be so, after Sri.A.K.Thankappan became eligible for promotion, the first vacancy should have been filled up by promoting Sri.A.K.Thankappan in the carry-forward vacancy in the Scheduled Caste quota and when two vacancies arose on 14.10.1991, the first vacancy should have been filled up by promoting Sri.A.K.Thankappan in the Scheduled Caste vacancy and then only Smt.T.Priyamvada could have been promoted. But both in the seniority list of Senior Clerk and that of Assistant, Smt.T.Priyamvada is shown as senior to the Sri.A.K.Thankappan. Therefore, clearly the promotion of Sri.A.K.Thankappan on 14.10.1991 was not in a vacancy reserved for Scheduled Caste, but in a carry-forward vacancy in accordance with the seniority position of Sri.A.K.Thankappan. If that be so, the carry-forward vacancy made mention of in the counter affidavit was still available to be accommodated by a Scheduled Caste candidate. After Sri.A.K.Thankappan the petitioner is the senior most SC candidate. Therefore, the petitioner was the rightful claimant for the post which vacancy arose after the petitioner become qualified for promotion in so far as admittedly the carry-forward vacancy was available all through out. 2. Subsequent to the filing of the counter affidavit in this writ petition there was a further development in so far as the MPEDA themselves appear to have recognised the claim of the petitioner in Ext.P34 Note placed before the Authority proposing to promote the petitioner with effect from 13.11.1997. As per Exts.P16 proceedings that Note was approved by the Authority and it was decided to promote the petitioner retrospectively with effect from 13.11.1997. But strangely without assigning any reason, by Ext.P16(a), Ext.P16 decision of the Authority was kept in abeyance. No reason whatsoever is mentioned for the same. In view of the above circumstances, I am of opinion that the Authority should take a decision on this point in so far as they have not yet cancelled Ext.P16 decision, but only kept it in abeyance. In the above circumstances, I direct the Authority to take a final decision in the matter in its next meeting. If there is no likelihood of a meeting of the Authority being convened in the regular course within two weeks, then a special meeting shall be constituted for this purpose.” 3. Ext. P16 is dated 26-10-2006. Ext. P16(a) is dated 23-7- 2007. More than 1 ½ years have gone by. In spite of granting sufficient time, the respondents are not able to take a decision. They now seek further time. I am not inclined to grant further time. In any O.P. . No. 38301/02 -: 4 :- event, since I have already considered the contentions of the petitioner and the respondents in detail and have come to the conclusion that the petitioner is eligible for the promotion she has claimed, I am inclined to allow the original petition. Accordingly, the original petition is allowed. Since the MPEDA themselves have, by Ext. P16, decided to promote the petitioner with effect from 13-11-1997, I direct that such promotion shall be with effect from that date. The petitioner shall also be eligible all monetary benefits arising therefrom. Orders in this regard shall be passed and arrears disbursed, as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment. Sd/- S. Siri Jagan, Judge. Tds/