IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 18TH SEPTEMBER 2008 / 27TH BHADRA 1930 WA.No. 290 of 2007(D) ------------------------------------ AGAINST THE JUDGEMENT IN WPC.28513/2004 Dated 01/01/2007 .................... APPELLANT/PETITIONER: R. GEETHA, FORMERLY JOINT CHEMICAL EXAMINER, REGIONAL CHEMICAL EXAMINER'S LABORATORY, KOZHIKODE, NOW WORKING AS CHIEF CHEMICAL EXAMINER TO GOVT. OF KERALA, CHEMICAL EXAMINER'S LABORATORY, THIRUVANANTHAPURAM. BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAY SMT.N.SANTHA SRI.K.A.BALAN SRI.PETER JOSE CHRISTO SRI.S.A.ANAND RESPONDENTS: 1. STATE OF KERALA, REP. BY ITS CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE PRINCIPAL SECRETARY TO GOVERNMENT, HOME DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 3. CHIEF CHEMICAL EXAMINER TO GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 4. K.G. SIVADASAN, FORMERLY JOINT CHEMICAL EXAMINER, REGIONAL CHEMICAL EXAMINER'S LABORATORY, ERNAKULAM, KAKKANAD, NOW WORKING AS JOINT CHEMICAL EXAMINER, CHEMICAL EXAMINER'S LABORATORY, THIRUVANANTHAPURAM. BY ADV. SRI.K.JAJU BABU FOR R4 SMT.M.U.VIJAYALAKSHMI FOR R4 BY GOVT. PLEADER SRI.K.SANDESH RAJA FOR R1-R3 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 18/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.Koshy & K.P.Balachandran, JJ. --------------------------------- W.A.No.290 of 2007 --------------------------------- JUDGMENT Koshy, J. Appellant/petitioner entered service as Junior Scientific Officer in the Chemical Examiner's Laboratory on 24.12.1980. She was promoted as Assistant Chemical Examiner by Exhibit P2 dated 25.1.1986 Later her promotion was regularised with effect from 25.1.1986 by Exhibit P3 order in view of the recommendation of the Departmental Promotion Committee. She was promoted to the upgraded post of Assistant Chemical Examiner on 22.8.1989 by Exhibit P4 order. She was promoted as Joint Chemical Examiner by Exhibit P6 order dated 24.9.1991 and during the pendency of the writ petition, she was promoted to the post of Chief Chemical Examiner. The fourth respondent was recruited as Assistant Chemical Examiner on special recruitment and he was advised by order dated 31.1.1986. He joined service on 7.3.1986. It is WA 290/07 2 the contention of the petitioner that admittedly she was promoted as Assistant Chemical Examiner on 25.1.1986, before the fourth respondent was advised on 31.1.1986 and she is senior to the fourth respondent. Apart from the above, it was also stated that for the first time her promotion was challenged after fifteen years of her promotion as Assistant Chemical Examiner by Exhibit P2 order. By the time a complaint was received, she was already promoted from that post as Joint Chemical Examiner on the basis of the decision of the Departmental Promotion Committee on 24.9.1991. The petition against the promotion of the petitioner was filed only on 10.10.1991 claiming seniority in the feeder category from which she was promoted on 25.1.1986. It is also the contention of the petitioner that such dispute cannot be raised in view of the limitation prescribed under Section 27B of the K.S. & S.S.R. and therefore, such a petition should not have been entertained at all. It is further contended that even if such a petition is WA 290/07 3 entertained, she is, admittedly, senior. In view of the various decisions of this Court and Service Rules, seniority has to be fixed in the case of direct recruitees taking into account the date of advice and not the date of appointment and in the case of promotees, the date of actual promotion. Service in the feeder category should be reckoned for the purpose of fixing the seniority in the post. The learned single Judge refused to interfere in Exhibit P7, as it was only a notice. 2. According to the fourth respondent, the vacancy reserved for appointment arose on 16.7.1979 and therefore, special recruitment ought to have been conducted on that date. If he was appointed on that date, he would be the senior. Further, the manipulations regarding his appointment was known to him only later, i.e. in 2001. According to the petitioner, if steps were taken in 1979, the fourth respondent would not have been appointed at all because he was not qualified at that time and the date of advice alone can be looked into. Whatever WA 290/07 4 may be that, these are all matters to be decided by the Government. 3. Learned counsel for the appellant submitted that even entertainment of the petitioner after the time itself is wrong. We wee no ground to interfere in the matter. While deciding the issue, the authorities should first decide the issue regarding time bar and then on merits and if the decision is adverse to the appellant, since the appellant is promoted twice after the order and has become Chief Chemical Examiner and if her seniority is changed, the order shall be implemented only after one month, after communication of the above order to the appellant. Appellant also should be heard before deciding the matter by the authority. The writ appeal is disposed of as above. (J.B.Koshy, Judge) 18th September, 2008 (K.P.Balachandran, Judge) tkv