IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 28TH JULY 2010 / 6TH SRAVANA 1932 WP(C).No. 25430 of 2009(W) -------------------------- PETITIONER(S): --------------- K.K.BHANUMATHY, JUNIOR SUPERINTENDENT (UNDER ORDERS OF REVERSION TO THE POST OF ASSISTANT/ACCOUNTANT GRADE I) KERALA STATE DEVELOPMENT CORPORATION FOR SCHEDULED CASTES AND SCHEDULED TRIBES LTD., REGIONAL OFFICE, THRISSUR. BY ADV. SRI.V.A.MUHAMMED SRI.K.E.HAMZA RESPONDENT(S): --------------- 1. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, SCHEDULED CASTE DEVELOPMENT DEPARTMENT, SECRETARIAT, TRIVANDRUM. 2. THE KERALA STATE DEVELOPMENT CORPORATION FOR SCHEDULED CASTES AND SCHEDULED TRIBES LTD., REPRESENTED BY ITS MANAGING DIRECTOR, P.B.NO.523, TOWN HALL ROAD, THRISSUR-680 020. 3. SRI.SURAJ, ASSISTANT/ACCOUNTANT GRADE I, KERALA STATE DEVELOPMENT CORPORATION FOR SCHEDULED CASTES AND SCHEDULED TRIBES LTD., REGIONAL OFFICE, KOLLAM (UNDER ORDERS OF PROMOTION AS JUNIOR SUPERINTENDENT). Addl.4. CHANDRADASAN M.C., S/O. PARAMESWARANN NAIR, ASSISTANT GRADE I, KERALA STATE DEVELOPMENT CORPORATION FOR SCHEDULED CASTTES & SCHEDULED TRIBES, REGIONAL OFFICE, MALAPPURAM. /2/ Addl.5. PADMINI M.B., W/O. SETHUMADHAVAN, ASSISTANT GRADE I, KERALA STATE DEVELOPMENT CORPORATION FOR SCHEDULED CASTES & SCHEDULED TRIBES, REGIONAL OFFICE, PALAKKAD. (*Addl.R4 & R5 are impleaded vide order dated 22.01.2010 in I.A.NO.16324/09.) ADV. SRI.R.S.KALKURA FOR R3 SRI.M.S.KALESH FOR R3 SRI.HARISH GOPINATH FOR R3 SRI.V.VINAY MENON FOR R3 SRI.M.AJAY (IRUMPANAM) FOR R3 SRI.C.UNNIKRISHNAN (KOLLAM) FOR ADDL.RES. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS EXT.P1: True copy of the Special Rules. EXT.P2: True copy of the Order No.10969/A2/85 of the Corporation dt.15.7.88 EXT.P3: True copy of the Order No.5531/A1/2003 of -do- dt.11.6.2004 EXT.P4: True copy of the appeal filed before the Government dt.14.7.2004 EXT.P5: True copy of the judgment in WP(c).No.18560/04. EXT.P6: True copy of the Govt. Order No.141/86/GAD dated 30.4.1986 EXT.P7: True copy of the G.O(P).No.3/97/P&ARD of the Government dt.12.2.97. EXT.P8: True copy of the G.O(P).No.5/2004/P&ARD of the Government dt.2.4.2004 EXT.P9: True copy of the G.O(P).No.876/04/SCSTD of the Government. EXT.P10: True copy of the judgment in WP(C).No.32627/04. EXT.P11: True copy of the G.O.No.11251/A2/2000 of the 2nd respondent EXT.P12: True copy of the appeal filed before the Government. EXT.P13: True copy of the judgment in WP(c).No.8524/09 EXT.P14: True copy of the Order .No.2236/A2/98 (1) of the 2nd respondent. vi/ //TRUE COPY// PS TO JUDGE ANTONY DOMINIC, J. -------------------------------------------------- W.P.(C) NO.25430 OF 2009(W) -------------------------------------------------- Dated this the 28th day of July, 2010 J U D G M E N T Challenge in the writ petition is against Ext.P14 order dated 29.8.2009 reverting the petitioner from the post of Junior Superintendent to the Post of Assistant Grd.I in the 2nd respondent Corporation. 2. Petitioner joined service in 1983 as Confidential Assistant. Following the publication of Ext.P1 recruitment rules, apparently on the ground that the petitioner was not qualified to hold the post of Confidential Assistant, Ext.P2 order was issued on 15.7.1988 regularising the petitioner' service as Assistant Grade-II with effect from 7.3.1986. Subsequently, the petitioner was promoted as Assistant Grad. I with effect from 6.9.1990 and again as Junior Superintendent with effect from 3.12.1996. 3. These promotions, according to the petitioner, were based on the orders issued by the Corporation exempting her from passing the test qualification, which averment is disputed by the Corporation. In any case, I do not think that for resolving the controversy arising in this writ petition, it is necessary to go into WPC.No. 25430/09 :2 : that issue. 4. Subsequently, by Ext.P3 order dated 11.6.2004, the petitioner was reverted as Assistant Grd.II. The order of reversion was confirmed by Ext.P9 order of the Government, passed on Ext.P4 appeal filed by the petitioner. These orders were challenged before this court in WP(c).No.32627/04 in which the petitioner herein was the 3rd petitioner. That writ petition was disposed of by Ext.P10 judgment. Paragraph 5 of the judgment, to the extent it is relevant reads as under. However, I am of the opinion that the petitioners must succeed on the other point canvassed by the petitioners. Admittedly the petitioners who were promoted were regularized in the year 1986. They were promoted as Assistant Grade I in the year 1988. There is no case that the petitioners have made any misrepresentation or misled the authorities. It was the authorities themselves who took a decision on an interpretation of the relevant Government Orders and found that they are entitled to be promoted. Respondents 4 and 5 though they were having provisional service during 1984 and 1985 respectively were regularized only in the year 1994. That is nearly six years after petitioners 1 and 2 were promoted as Assistant Grade-I and four years from the date of promotion of the third petitioner. The petitioners were promoted as Junior Superintendent in 1996, at that time also WPC.No. 25430/09 :3 : respondents 4 and 5 had not even promoted as Assistant Grade-1. Respondents 4 and 5 were promoted as Assistant Grade-I only in the year 1999 and they were further promoted as Junior Superintendent in 2001 and 2000 respectively. Apparently there was no complaint against the promotion of the petitioners and the petitioners were in fact given a subsequent promotion from the cadre of Assistant Grade-I to Junior Superintendent. It is pertinent to note that respondents 4 and 5 had come into the service in 1994. There is no objection even when the petitioners were promoted as Junior Superintendent in the year 1996. Ext.R4(1) is a representation given by the fifth respondent. It is dated 22.1.1999. Apparently it is on the basis of the same and the further direction of this court that the ball was set rolling to find its logical culmination in the impugned orders. I feel that in such circumstances, whatever may have been the merits of the order promoting the petitioners as Assistant Grade-I and Junior Superintendent, it will be very unreasonable and arbitrary to re-visit the validity of the promotion accorded to the petitioners after nearly two decades and what is more is to revert them back as Assistant Grade-II for no fault of the petitioners. “ 5. After holding that the petitioner is entitled to continue as Junior Superintendent, in paragraph 7 of the judgment considering the request made by respondents 4 and 5 therein, this court directed as follows; WPC.No. 25430/09 :4 : “ It is to be noted in the facts of this case that the promotion given to the petitioners by relaxing the requirements on the basis that they are members of the Scheduled Caste Community was not challenged by respondents 4 and 5 within a reasonable time and the first respondent also accepted the position and it is only after more than a decade that the matter is sought to be unsettled. Learned counsel for respondents 4 and 5 would then submit that at any rate at least this court may direct that respondents 4 and 5 should be treated as senior to the petitioners. I feel that this request is fair and it is declared that while the petitioners cannot be reverted back to the cadre of Assistant Grade II and they will continue as Junior Superintendents, it is made clear that the petitioners will be ranked as juniors to respondents 4 and 5 in the cadre of junior Superintendents. Subject to this, the impugned orders are quashed. It is submitted by the counsel appearing for the Corporation that there is nobody else who will be affected by the granting of seniority to respondents 4 and 5 over the petitioners in the cadre of Junior Superintendents.” 6. It would appear that Ext.P11 seniority list published on 10.10.2008, rank No.61 was assigned to the petitioner and rank Nos. 32 and 33 were assigned to additional respondents 4 and 5. Subsequently, apparently in implementation of Ext.P13 judgment obtained by certain other employees of the corporation directing that it will be open to the Corporation to effect promotions, 2nd WPC.No. 25430/09 :5 : respondent issued Ext.P14 order inter alia revering the petitioner to the post of Assistant Grd.I. It is this order which is under challenge. 7. Although the Corporation and the additional party respondents submit that in view of Ext.P11 reversing the seniority, petitioner could not have continued as Junior Superintendent, fact remains that Ext.P10 judgment has become final and R.P.No.1357/05 filed by he Corporation and the writ Appeal No.2388/05 filed by the petitioners therein were dismissed. If that be so, the right of the petitioner to continue as Junior Superintendent which has crystallized by Ext.P10 judgment could not have been taken away, even if the seniority of the employees are undergone any revision subsequently. This is for the reason that the effect and binding nature of a writ of mandamus issued by this Court cannot be nullified by an executive fiat. In that view of the matter I am inclined to think that irrespective of the seniority position which the petitioner is entitled, petitioner's continuance in the post of Junior Superintendent could not have been disturbed. Therefore Ext.P14 to the extent petitioner is ordered to be reverted as Assistant WPC.No. 25430/09 :6 : Grd.I cannot be sustained and is quashed. Writ petition is disposed of as above. (ANTONY DOMINIC) JUDGE vi/