IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 10TH JANUARY 2008 / 20TH POUSHA 1929 OP.No. 8395 of 1998(Y) ------------------------------- PETITIONERS: -------------------- 1. R.RAJ PRADEEP, JUNIOR SUPERINTENDENT, KANHIKUZHY BLOCK PANCHAYAT, ALAPPUZHA DISTRICT. 2. D.SUDARSANAN, JUNIOR SUPERINTENDENT, OFFICE OF THE MUTHUKULAM BLOCK PANCHAYAT, ALAPPUZHA. 3. M.P.PRABHAKARAN, JUNIOR SUPERINTENDENT, OFFICE OF THE DEPUTY DIRECTOR OF PANCHAYAT, ERNAKULAM. 4. K.A.RAJU VARGHESE, JUNIOR SUPERINTENDENT, OFFICE OF THE DEPUTY DIRECTOR OF PANCHAYAT, ERNAKULAM. 5. P.P.DAYANANDAN, JUNIOR SUPERINTENDENT, OFFICE OF THE DEPUTY DIRECTOR OF PANCHAYAT, ALLEPPEY DISTRICT. 6. L.WILFRED, JUNIOR SUPERINTENDENT, THRIKKARUVA GRAMA PANCHAYAT, KOLLAM DISTRICT. 7. K.SOMAN, JUNIOR SUPERINTENDENT, OFFICE OF THE DEPUTY DIRECTOR OF PANCHAYAT, KOLLAM. 8. P.N.ABOOBACKER SIDHIC, JUNIOR SUPERINTENDENT, POOTHRIKKA GRAMA PANCHAYAT, ERNAKULAM DISTRICT. BY ADV. SRI.K.JAJU BABU RESPONDENTS: ----------------------- 1. STATE OF KERALA, REP.BY SECRETARY TO GOVERNMENT, LOCAL ADMINISTRATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PANCHAYAT, THIRUVANANTHAPURAM. *3. SHRI JACOB ABRAHAM, SECRETARY, SOORANAD SOUTH GRAMA PANCHAYAT, KOLLAM DISTRICT. *4. N.GOPAKUMAR, JUNIOR SUPERINTENDENT, PATANAKKAD GRAMA PANCHAYAT. *RESPONDENTS 3 AND 4 ARE IMPLEADED IS A REPRESENTATIVE CAPACITY AS PER ORDER DT. 13.7.92 IN CMP. 14342/1998. ADDL. RESPONDENTS 5,6, 7 TO 9 IMPLEADED R5. C.R. DHANAPAL, S/O. C.RAJAPPAN, PRESIDENT, KERALA PANCHAYAT EXECUTIVE OFFICERS' ASSOCIATION, SPECIAL GRADE SECRETARY, PATTANCHERRY GRAMA PANCHAYAT, PALAKKAD DISTRICT. ADDL. 5TH RESPONDENT TO IMPLEADED AS PER ORDER DT. 9.7.02 ON CMP. 32197/02. R6:- SHAJILAL.S.K., S/O.KUMARASWAMI, KUNDARSSERI, ATTHIYANNUR, ARALUMOODU P.O., NEYYATTINKARA, TRIVANDRUM. ADDL.R6 IS IMPLEADED AS PER ORDER DT. 9.7.02 ON CMP. 14299/99. ADDL.R7:- P.K.RAJAGOPALAN, JUNIOR SUPERINTENDENT , POTHUKALLU GRAMA PANCHAYA P.O., BHOODANAM, MALAPPURAM DISTRICT. OP. NO.8395/1998 ADDL.R8- P.GANGADHARAN, JUNIOR SUPERINTENDENT OLAVANNA GRAMA PANCHAYAT, P.O. GURUVAYURAPPAN COLLEGE, KOZHIKKODE DISTRICT. ADDL.R9:- T.MUHAMMED ABDURAHIMAN, JUNIOR SUPERINTENDENT, PERFORMANCDE, AUDIT UNIT, OFFICE OF THE DY.DIRECTOR OF PANCHAYATS, MALAPPURAM. ADDL. RESPONDENTS 7 TO 9 ARE IMPLEADED AS PER ORDER DT. 9.7.02 ON CMP. 32201/2002. ADDL.R 10 TO R41 IMPLEADED. 10. SHRI.R.VIMAL KUMAR, SPECIAL GRADE SECRETARY, AROOR GRAMA PANCHAYAT, AROOR P.O., PIN 688 534. 11. SHRI. P.P.RAMACHANDRAN PILLAI, SPECIAL GRADE SECRETARY, RANNI PERINAD GRAMA PANCHAYAT, RANNI- PERINAD P.O., PIN 689 674, PATHANAMTHITTA. 12 SHRI. N.T.VASU, SPECIAL GRADE SECRETARY, THIRUNAVAYA GRAMA PANCHAYAT, THIRUNAVAYA, MALAPPURAM 676 301. 13. SHRI. M.K.JAYAKUMAR SPECIAL GRADE SECRETAR, CHAZHOOR GRAMA PANCHAYAT, PAZHUVIL P.O., TRICHUR. 14. SHRI.P.K.VIKRAMAN, SPECIAL GRADE SECRETARY,' KUMARAMANGALAM GRAMA PANCHAYAT, KUMARAMANGALAM P.O., PIN. 685 597 IDUKKI. 15. SHRI V.P.KUNHIKRISHNAN, SPECIAL GRADE SECRETARY, PAPPINISSERY GRAMA PANCHAYAT, PAPPINISSERY, KANNUR 670 142. 16. SHRI.O.K.VIJAYAKRISHNAN, SPECIAL GRADE SECRETARY, CHERANALLUR GRAMA PANCHAYAT, SOUTH CHITTUR P.O., ERNAKULAM PIN 682 027. OP. NO.8395/1998 17. SHRI. V.HARIDASAN, SPECIAL GRADE SECRETARY, VATTAMKULAM GRAMA PANCHAYAT, VATTAMKULAM P.O., MALAPPURAM 679 578. 18. SHRI. ABRAHAM PETER, SPECIAL GRADE SECRETARY, VELLOOR GRAMA PANCHAYAT, MEVALLUR P.O., KOTTAYAM 686 609. 19. SHRI. C.K.VIJAYAKUMAR, SPECIAL GRADE SECRETARY, MOONIYOOR GRAMA PANCHAYAT, VELIMUKKU SOUTH P.O., MALAPPURAM 676 317. 20. SHRI SHIBU GEORGE, SPECIAL GRADE SECRETARY, PERUMPADAPPA GRAMA PANCHAYAT, PERUMPADAPPA P.O., MALAPPURAM 679 580. 21. SHRI. P.P.SURESH, SPECIAL GRADE SECRETARY, KALLISSERY GRAMA PANCHAYAT, KALLISSERY P.O., KANNUR A670 562. 22. SHRI.C.N.MOHANACHANDRAN PILLAI, SPECIAL GRADE SECRETARY, MUNDAKKAYAM GRAMA PANCHAYAT , MUNDAKKAYAM P.O., KOTTAYAM 686 513. 23. SMT.P.SIVAKUMARI, SPECIAL GRADE SECRETARY, KOLLAYIL GRAMA PANCHAYAT, DHANUVACHAPAURAM P.O., NEYYATTINKARA 695 503. 24. SMT.SUSAN THOMAS, SPECIAL GRADE SECRETARY, ITTIVA GRAMA PANCHAYAT, VAYYANAM P.O., VIA, AYOOR, KOLLAM 691 539. 25. SHRI. K.S.JYOTHI, SPECIAL GRADE SECRETARY, THRIKKOVILVATTOM GRAMA PANCHAYAT, MUKATHALA P.O., KOLLAM 691 579. 26. SHRI. K.P.VENUGOPALA PILLAI, SPECIAL GRADE SECRETARY, ENGANDIYUR GRAMA PANCHAYAT, ENGANDIYUR P.O., TRICHUR 680 615. 27. SHRI. K.Y. JAMES, SPECIAL GRADE SECRETARY, THENMALA GRAMA PANCHAYAT, THENMALA P.O., KOLLAM 691 329. 28. SHRI. R.BABU, SPECIAL GRADE SECRETARY, KULAKKADA GRAMA PANCHAYAT, MAVADY P.O., KOLL 691 531. OP. NO.8395/1998 29. SHRI. C.MOHANDAS, SPECIAL GRADE SECRETARY, THALIKULAM GRAMA PANCHAYAT, THALIKULAM P.O., TRICHUR. 30. SMT.K.K.SOBHANAKUMARI, SPECIAL GRADE SECRETARY, PARIYARAM GRAMA PANCHAYAT, PARIYARAM PO. TRICHUR. 31. SMT.A.VISALAKSHI, SPECIAL GRADE SECRETARY, P.O.MARANCHERY, MALAPPURAM 679 581. 32. SHRI. N.N.PONNAPPAN ACHARI, SPECIAL GRADE SECRETARY, NEELESWARAM GRAMA PANCHAYAT, NEELESWARAM. P.O., KASARAGOD 671 314. 33. SHRI. N.NANDAKUMAR, SPECIAL GRADE SECRETARY, PUTHUR GRAMA PANCHAYAT, PUTHUR P.O., TRICHUR 680 014. 34. SHRI.J.VIJAYAN, SPECIAL GRADE SECRETARY, KADUKUTTY GRAMA PANCHAYAT, KADUKUTTY P.O., TRICHUR 680 315. 35. SHRI. P.J.ANTONY, SPECIAL GRADE SECRETARY, VADAKKANCHERRY GRAMA PANCHAYAT , VADAKKANCHERRY P.O., TRICHUR 680 582. 36. SHRI. A.EDISON, SPECIAL GRADE SECRETARY, VADASSERIKKARA GRAMA PANCHAYAT , VADASSERIKKARA P.O., PATHANAMTHITTA 680 663. 37. SMT.R.KUMARY NIRMALA, SPECIAL GRADE SECRETARY, KILIMANOOR GRAMA PANCHAYAT, THIRUVANANTHAPURAM. 38. SHRI K.NARAYANANKUTTY, SPECIAL GRADE SECRETARY, ULIKKAL GRAMA PANCHAYAT, KANNUR. 39. SHRI.BENNY GEORGE, SPECIAL GRADE SECRETARY, NOORANAD GRAMA PANCHAYAT, ALAPPUZHA. OP. NO.8395/1998 40. SHRI. P.N.JANARDHANAN, SPECIAL GRADE SECRETARY, KIZHAKKANCHERRY GRAMA PANCHAYAT, TRICHUR. ADDL.R10 TO R40 IMPLEADED VIDE ORDER DT. 20.8.04 ON IA. 6011/03 ADDL.R41. P.G.MATHAI, JUNIOR SUPERINTENDENT UDUMBANCHOLA GRAMA PANCHAYAT, RESIDING AT PUTHIYAVEEU, VANDANMEDU P.O., IDUKKI DISTRICT. ADDL.R41 IMPLEADED VIDE ORDER DT. 20.8.04 ON IA. 107/04. BY ADV. SMT.A.S.BEENU ( R6) SRI.ELVIN PETER P.J. (R4) SRI.C.RAGHAVAN ( R5) SRI.V.RAJENDRAN ( R7 TO R9) SRI.K.P.DANDAPANI (SR.) ( R41) SRI.K.M.SATHYANATHA MENON (R10) SRI.K.K.SATHEESH ( R11) SRI.S.SHANAVAS KHAN SRI.M.V.BOSE SRI.SANTHEEP ANKARATH THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 10/01/2008, ALONG WITH OP NO. 9355 OF 1998 THE COURT ON DELIVERED THE FOLLOWING: OP. 8395/1998 ORDER ON CMP. NOS. 14343/1998,39531/1998,28068/1999 AND IA NO. 14646/2007 IN OP. NO. 8395/1998. DISMISSED 10.01.2008 SD/- K.BALAKRISHNAN NAIR, JUDGE SD/- P.N.RAVINDRAN , JUDGE APPENDIX PETITIONERS EXHIBITS EXT.P1:- COPY OF THE RELEVANT EXTRACT OF STATE WISE SENIORITY LIST AS REFERRED TO IN OP. EXT.P2:- COPY OF THE ORDER NO.E8-7603/93 DT. 7.3.94 ISSUED BY THE 2ND RESPONDENT. EXT.P3:- COPY OF THE ORDER NO.E2-1/95 DT. 13.12.96 ISSUED BY THE 2ND RESPONDENT. EXT.P4:- COPY OF THE ORDER NO.E8-14383/89 DT. 28.4.89 ISSUED BY THE 2ND RESPONDENT. EXT.P5:- COPY OF THE ORDER NOS. 14788/93 DT. 13.5.93 ISSUED BY THE 2ND RESPONDENT. EXT.P6:- COPY OF THE REPRESENTATION ISSUED BY THE 5TH PETITIONER TO THE 2ND RESPONDENT DT. 2.12.95. EXT.P7:- COPY OF THE ORDER ISSUED BY THE 2ND RESPONDENT DT. 17.6.97, VIDE ORDER NOS. 14788/93. EXT.P8:- COPY OF THE ORDER NO.S.2332/97 DT. 26.8.97 ISSUED BY THE 2ND RESPONDENT. EXT.P9:- COPY OF THE ORDER NOS.33400/97 DT. 27.9.97 ISSUED BY THE 2ND RESPONDENT. EXT.P10:- COPY OF THE REPRESENTATION SUBMITTED BY THE IST PETITIONER BEFORE THE 2ND RESPONDENT. EXT.P11:- COPY OF THE REPRESENTATION SUBMITTED BY THE 2ND RESPONDENT THE 2ND PETITIONER. EXT.P12:- COPY OF THE REPRESENTATION SUBMITTED BY THE 4TH PETITIONER BEFORE THE 2ND RESPONDENT. OP. NO.8395/1998 EXT.P13:- COPY OF THE REPRESENTATION SUBMITTED BY THE 7TH PETITIONER BEFORE 2ND RESPONDENT DT. 4.2.98. EXT.P14:- COPY OF THE REPRESENTATION SUBMITTED BY THE 5TH PETITIONER BEFORE THE GOVERNMENT DT. 24.11.97. EXT.P15:- COPY OF THE ORDER NO.E8-28176/97 DT. 16.2.98 ISSUED BY THE 2ND RESPONDENT. EXT.P16:- COPY OF THE ORDER NO.MS. 106/96 DT. 4.6.96 ISSUED BY THE GOVERNMENT. EXT.P17:- COPY OF THE ORDER NO.MS. 52/97 DT. 16.3.97 ISSUED BY THE GOVERNMENT. EXT.P18:- COPY OF THE ORDER NO.G.O.MS. NO .49/98/LAD DT. 4.3.98 ISSUED BY THE GOVERNMENT. EXT.P19:- COPY OF THE NEWSPAPER REPORT IN KERALA KAUMUDI DT. 9.7.97. EXT.P20:- COPY OF THE ORDER ISSUED BY THE GOVERNMENT DT. 5.10.98. EXT.P21:- COPY OF THE SENIORITY LIST DT. 4.5.99 AS REFERRED TO IN THE AFFIDAVIT. /TRUE COPY/ P.S. TO JUDGE tss K.BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ. ----------------------------------------- O.P. NOS.8395 & 9355/1998 ----------------------------------------- Dated 10th January, 2008. JUDGMENT Balakrishnan Nair, J. O.P. No. 8395/1998: The petitioners are Junior Superintendents in the Panchayat Department. They were originally recruited through the Public Service Commission for appointment to the post of Executive Officer Grade II in the Panchayat Department. They were in due course promoted as Executive Officer Grade I/Secretary, Grama Panchayat and thereafter as Junior Superintendents. The Special Rules for the Panchayat Subordinate Service were introduced on 16.6.1994 with retrospective effect from 1.1.1990. With effect from 1.1.1990 the posts of Executive Officer Grade I and Grade II were merged and Grade II Executive Officers were placed as juniors to Grade I Executive Officers as on that date. Before 1.1.1990, as per the Rules framed under Section 24(3) of the Travancore-Cochin Panchayat Act, 1950, the post of Executive Officer Grade I has to be filled up from two OP NOS.8395 & 9355/98 2 streams consisting of Grade II Executive Officers and U.D. Clerks of the Panchayat Department in the ratio of 1 : 1. The petitioners were advised by the P.S.C between 5.12.1988 and 1.6.1989. They were appointed between January, 1989 and June, 1989. So, on the date of coming into force of the Rules on 1.1.1990, they were in the cadre of Executive Officer Grade II. 2. According to the petitioners, the vacancies available in the cadre of Executive Officer Grade I were being filled up by U.D.Clerks in the Panchayat Department in excess of their quota. The main grievance raised in this Original Petition is that certain U.D.Clerks from the Panchayat Department were notionally promoted as Executive Officer Grade I with effect from dates anterior to 1.1.1990, by Ext.P15 order dated 16.2.1998. As evident from Ext.P15, on a review of the cadre strength, it was found that there are 435 posts of Executive Officer Grade I in the Department and out of which 36 posts were remaining vacant as on 1.1.1990. So, the persons who are the beneficiaries of Ext.P15, though, were actually promoted after 1.1.1990, were given notional promotion on various dates starting from 1.2.1989 and ending with 1.12.1989. The result was that though the petitioners were not eligible for promotion to those vacancies, ineligible persons in excess of the quota were promoted and thereby placed above them. The petitioners say, out of the 435 vacancies, the maximum OP NOS.8395 & 9355/98 3 vacancies that could be alloted to the U.D. Clerks' stream were only 218. The remaining vacancies can be filled up by U.D.Clerks only provisionally and not on a regular basis. Therefore, they say, the promotions granted under Ext.P15 are illegal and unauthorised and the same should be set aside. 3. The 2nd respondent has filed a counter affidavit. That promotions were made from the U.D.Clerks in excess of their quota is not seriously disputed. It is justified by saying that there were vacancies and the petitioners and others in the cadre of Executive Officer Grade II being probationers, were unqualified when those vacancies arose. The beneficiaries of Ext.P15 have also filed a counter affidavit, supporting Ext.P15. 4. Going by the pleadings and materials in this Original Petition, we notice that the 2nd respondent does not specifically deny the allegation of the petitioners that the U.D.Clerks were promoted in excess of their quota. But, it is not clear how many of them were promoted in excess of the posts set apart for them. The claim of the 2nd respondent that there were vacancies and therefore, promotions were ordered and the petitioners being ineligible for promotion cannot challenge that, cannot be accepted. They have a legal right to say that the vacancies should not be filled up contrary to the Rules, so that their interest is safeguarded. In view of the above position, we feel OP NOS.8395 & 9355/98 4 that the Government should examine the correctness of the promotions ordered as per Ext.P15. The Government should ascertain as to how many persons among Executive Officer Grade I in position as on 1.1.990 were promotees from the cadre of Executive Officer Grade II and how many came from the cadre of U.D.Clerk. If the U.D.Clerks were promoted in excess of the quota set apart for them, the excess promotees shall be treated as provisional promotees and they shall be removed from the seniority list of Executive Officer Grade I as on 1.1.1990. Needless to say, they can be considered for promotion subsequently in accordance with the new Rules, according to their turn and seniority. Along with a copy of this judgment, the petitioners may move the Government by filing a representation. In that event the Government shall pass orders on the said representation, in the light of the observations made hereinabove in accordance with law within four months from the date of production of a copy of this judgment. The representatives of the petitioners and the beneficiaries of Ext.P15 shall also be given an opportunity of being heard before final orders are passed. O.P.No.9355/1998: 5. It is ordered that the judgment in O.P.No.8395/1998 will govern this case also. A representative of the petitioners herein shall also be heard while the matter is decided by the Government, as directed in the said OP NOS.8395 & 9355/98 5 judgment. The Original Petitions are disposed of as above. K.BALAKRISHNAN NAIR, JUDGE. P.N.RAVINDRAN, JUDGE. Nm/ OP NOS.8395 & 9355/98 6 K.BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ. ------------------------------------------ O.P.NOS.8395 & 9355/1998 ------------------------------------------ JUDGMENT 10.01.2008.