IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH THURSDAY, THE 26TH JUNE 2008 / 5TH ASHADHA 1930 WP(C).No. 15910 of 2008(R) -------------------------------------- PETITIONER: ------------------- 1. T.K.MYNAVATHY ASSISTANT DISTRICT INDUSTRIES OFFICER DISTRICT INDUSTRIES CENTRE, KOZHIKODE. 2. K.SUBRAMANIAN, ASSISTANT DISTRICT INDUSTRIES OFFICER DISTRICT INDUSTRIES CENTRE, MALAPPURAM. BY ADV. SRI.M.V.BOSE SRI.VINOD MADHAVAN SMT.NISHA BOSE RESPONDENTS: ---------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, INDUSTRIES DEPARTMENT GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF INDUSTRIES AND COMMERCE VIKAS BHAVAN, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SRI.NANDAKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.15910/2008 APPENDIX PETITIONERS EXHIBITS EXT.P1:- COPY OF THE GOVERNMENT CIRCULAR DT. 3.6.99. EXT.P2:- COPY OF THE EXTRACT OF THE FINAL SENIORITY LIST OF SENIOR CO- OPERATIVE INSPECTORS. EXT.P3:- COPY OF THE PROVISIONAL SENIORITY LIST OF ASSISTANT DISTRICT INDUSTRIES OFFICERS. EXT.P4:- COPY OF THE OBJECITON DT. 20.11.2007 FILED BY THE 2ND PETITIONER. EXT.P5:- COPY OF THE ORDER DT. 2.2.08 OF THE 2ND RESPONDENT. EXT.P6:- COPY OF THE REPRESENTATION DT. 14.2.08 FROM THE IST PETITIONER T IST RESPONDENT. EXT.P7:- COPY OF THE FORWARDING LETTER DT. 2.2008. EXT.P8:- COPY OF THE ORDER DT. 19.12.2006 OF THE 2ND RESPONDENT. EXT.P9:- COPY OF THE REPRESENTATION DT. 7.5.08 FROM THE SIT PETITIONER TO 2ND RESPONDENT. EXT.P10:- COPY OF THE REPRESENTATION FROM THE 2ND PETITIONER BEFORE THE 2ND RESPONDENT. EXT.P11:- COPY OF THE ORDER DT. 25.1.2008 G.O.(RT) NO.83/08/ID. EXT.P12:- COPY OF THE COMPARATIVE STATEMENT PREPARED BY THE PETITIONER. EXT.P13:- COPY OF THE TRANSFER ORDER ISSUED TO SRI.K.G.ROY, BY THE DIRECTOR OF INDUSTRIES AND COMMERCE DT. 9.6.08. EXT.P14:- EXTRACT OF THE FINAL SENIORITY LIST OF INDUSTRIES EXTENSION OFFICERS. /TRUE COPY/ P.S. TO JUDGE tss V. GIRI, J. ------------------------------- WP(C).NO. 15910 of 2008 --------------------------------- Dated this the 26th day of June, 2008 JUDGMENT The petitioners are working as Assistant District Industries Officers. They had originally started service as L.D.C. and was subsequently promoted as U.D.C., Auditor, Head Clerk, Junior Co-operative Inspector, Junior Superintendent, Senior Co- operative Inspector and then as Industries Extension Officer. The first petitioner was promoted as Assistant District Industries Officer on 9.12.2005. The second petitioner, also on the same line was promoted as Assistant District Industries Officer on 30.3.2007. The petitioners aspire for promotion to the post of Assistant Registrar or Deputy Registrar. 2. The post of Assistant Registrar in the Co-operative Societies is included as Category No.1 of class V of branch (1) of appendix to the special rules for the Kerala Industries Service. The promotion to the said post is essentially from Category No.2 Class V of branch (i) viz. the Assistant District Industries Officer. The petitioners are entitled to be considered for promotion to the WPC.15910 /2008 2 post of Assistant Registrar of Co-operative societies, as they are Assistant District Industries Officers. 3. Apart from the above, the petitioners are also entitled to aspire for promotion to the post of Deputy Registrar which is included as Category No.2 of class IV of branch (1). The feeder category for the post of Deputy Registrar in the first instance is category No.1 of class IV of branch (1) viz. Assistant Director of Industries and in the absence of the same by promotion from categories 1 and 2 of Class V viz. Assistant Registrar of Co- operative Societies and Assistant District Industries Officer. Though there is a dispute as to whether the first petitioner is qualified for promotion to the post of Assistant Registrar, the issue is covered in favour of the petitioners by the judgment of this court in OP.No.1860/1995. This court had specifically considered whether B.Com degree with Co-operation is to be treated as qualification for the post of Assistant Registrar and the answer was in the affirmative. 4. The petitioners contend that going by Ext.P2 final seniority list of Senior Co-operative Inspectors, they are senior to several other persons. Several of their juniors were promoted WPC.15910 /2008 3 ahead of them to the post of Assistant Registrar and some of them are promoted as Deputy Registrar also. Reference in this regard is made to Ext.P8 order. But apparently promotion to the post of Assistant Registrar was effected on the basis of the seniority in the category of Assistant District Industries Officer which is a feeder category and Ext.P5 is a final seniority list of Assistant District Industries Officers. There is no challenge against Ext.P5 list. If Ext.P5 list is final and if one proceeds on the basis of Ext.P5, then it cannot be said that any person junior to the petitioners in the category of ADIO has been promoted as Assistant Registrar or Deputy Registrar as the case may be. Going by Ext.P5 seniority list, since the first petitioner is to be treated as qualified, she is entitled to be considered for promotion as Assistant Registrar. 5. Respondents have in the counter affidavit stated that Ext.P5 seniority list has been operated. The seniority position of the first petitioner is serial No.126 and promotions were done upto serial No.130 as Assistant Registrar. Apparently the first petitioner has been denied such promotion on the ground that she is not eligible for promotion as per the special rules. As I WPC.15910 /2008 4 have stated above, this stand taken by the respondents is not correct. The first petitioner is eligible to be promoted as Assistant Registrar and therefore, respondents shall take steps to promote the first petitioner as Assistant Registrar in circumstances where her juniors have been promoted. 6. In so far as the second petitioner is concerned, he is included as serial No.24 in the provisional seniority list of ADIO's for the period from 1.1.12006 to 31.12.2007. No junior to the second petitioner was promoted to the post of Assistant Registrar or Deputy Registrar, it is stated in the counter affidavit. The said stand is recorded. In such circumstances and especially taking note of the fact that the second petitioner is due to retire on 30.6.2008 no purpose will be served in directing the respondents to consider the second petitioner for provisional promotion. The first petitioner is due to retire on 31.7.2008. Since I have already found that she is qualified for promotion to the post of Assistant Registrar and the respondents themselves admitted that the juniors who were in the category of ADIO's have been promoted as Assistant Registrar, orders shall be passed by the first respondent promoting the first petitioner as WPC.15910 /2008 5 Assistant Registrar. In the circumstance, such promotions may at present be treated as provisional promotion to be regularised in due course of time. 7. In so far as the claim by the petitioners for promotion to the post of Deputy Registrar is concerned, it essentially will depend upon the availability of qualified candidates from the category of Assistant Director of Industries and Commerce and it is only in the absence of such persons, the ADIOs can claim eligibility for being considered as Deputy Registrar. Those are matters which the second respondent will have to consider. 8. In the result, the writ petition is disposed of in the following terms: (i) The first respondent shall pass orders promoting the first petitioner as Assistant Registrar, within a period of two weeks from the date of receipt of a copy of this judgment. Such promotion may be treated as provisional. Thereafter orders shall be passed in the course of regularising promotions to the post of Assistant Registrar in the department. (ii) The first petitioner may file a representation before the Government as regards the claim for notional promotion to the WPC.15910 /2008 6 post of Assistant Registrar and as Deputy Registrar within two weeks from today. It shall be considered and orders shall be passed after ascertaining the vacancy position and with reference to the final seniority list of feeder categories in question. (iii) The second petitioner may file a representation before the Government within one month from today claiming notional promotion to the post of Assistant Registrar and Deputy Registrar. The same shall be considered and orders shall be passed by the Government within three months. V. GIRI, JUDGE. pmn/ WPC.15910 /2008 7