IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 1ST FEBRUARY 2010 / 12TH MAGHA 1931 WA.No. 3003 of 2007() --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.33820/2007 Dated 16/11/2007 .................... APPELLANT/ PETITIONER IN WPC ------------------------------------------------ K.BABURAJAN PILLAI, S/O.K.KUTTAN PILLAI, FORESTER, PATHANAPURAM FOREST RANGE OFFICE, (UNDER PUNALUR DIVISION), PATHANAPURAM (PO), KOLLAM DISTRICT. BY ADV. SRI.M.V.THAMBAN RESPONDENTS/RESPONDENTS IN WPC ---------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO THE GOVT., DEPARTMENT OF FOREST AND WILD LIFE, GOVT.SECRETARIAT, THIRUVANANTHAPURAM. 2. THE PRINCIPAL CONSERVATOR OF FOREST, THIRUVANANTHAPURAM. 3. THE CONSERVATOR OF FOREST, SOUTHERN CIRCLE, KOLLAM. BY GOVT. PLEADER SRI. BENNY GERVASIS THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 01/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ. --------------------------- W.A. No. 3003 OF 2007 -------------------------- Dated this the 1st day of February, 2010 J U D G M E N T Balakrishnan Nair, J. The appellant was the writ petitioner. He was a Forester while the writ petition was filed. The grievance highlighted iin the writ petition was that as per the Special Rules 10% of the vacancies in the cadre of Forester before 27.2.1990 should have been filled up by transfer from the Ministerial Staff. The petitioner was eligible for appointment in that channel. The rules were amended on 27.2.1990 deleting the provision for appointment by transfer to the 10% vacancies. But, if the promotions were ordered properly, he would have got promotion before 27.2.1990. Later, the provision for appointment by transfer was reintroduced in the rules as per Government order dated 31.1.1998 and on the strength of that, the appellant has already been promoted as Forester. 2. The point that arises for consideration is whether there were vacancies available for promoting the appellant as Forester before 27.2.1990 having regard to his seniority. When the writ petition was heard on 11.8.2009, this Court directed the respondents to file a counter affidavit on the above point. The respondents have filed counter affidavit stating that before 27.2.1990, three vacancies were available and those were filled up by appointing the seniors of the appellant. Therefore having W.A. No.3003/07 2 regard to his seniority in the ministerial wing, he could not have been appointed by transfer. 3. The appellant has filed a reply affidavit and stated that having regard to the cadre strength, the transfer appointment did not come to 10%. That means there were vacancies. But we notice that the special rules then in force provided for appointment by transfer with reference to the vacancies arising from time to time. The concept of cadre strength was introduced through amendment to Rule 5 of the KS&SSR only on 2.2.1993. Therefore the above claim also fails. But the learned counsel for the appellant mustered courage and submitted that three persons appointed were ineligible for appointment. At this distance of time we are afraid we cannot go into the validity of their appointment. The point that has to be considered is whether there were vacancies. Rightly or wrongly, they were filled up by three persons in the remote past. We find no merit in the writ appeal. It is accordingly dismissed. K.BALAKRISHNAN NAIR, (JUDGE ) P.N.RAVINDRAN, (JUDGE) vps