IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 29TH JULY 2009 / 7TH SRAVANA 1931 WP(C).No. 21265 of 2009(C) -------------------------------------- PETITIONER(S): --------------------- 1. KHAMARUDEEN A. PEON, AYROOR GRAMA PANCHYATH,PATHANAMTHITTA. 2. ANTONY ALEXANDER, PEON,DIRECTORATE OF PANCHAYAT,THIRUVANANTHAPURAM 3. P.MUHAMMED ASHRAF, PEON MULLANKOLLY GRAMA PANCHAYAT,MULLANKOLLY PO WAYANAD. 4. PREMANAN J, PEON, OTTASEKHARAMANGALAM GRAMA PANCHAYAT THIRUVANANTHAPURAM. 5. S.SAJITHKUMAR PEON, NANNIYODE GRAMA PANCHAYATH NANNIYODE ,PACHA PO, THIRUVANANTHAPURAM. 6. SYAMALA, T., PEON, NELLANADU GRAMA PANCHAYATH VENJARAMOODU, THIRUVANANTHAPURAM 7. RAMACHANDRAN T.R. PEON, MUPPAINADU GRAMA PANCHAYATH P.O. VADUVANCHAL, WAYANAD DIST. 8. BINDU G PEON, ENADIMANGALAM GRAMA PANCHAYAT ENADIMANGALAM PO, PATHANAMTHITTA DIST 9. LATHA C.G PEON ,KADAPRA GRAMA PANCHAYAT,PATHANAMTHITTA DIST 10. SAFEENA. S, PEON PANAVOOR GRAMA PANCHAYAT NEDUMANGAD, THIRUVANANTHAPURAM. BY ADV. MR.KALEESWARAM RAJ WP(C).No. 21265 of 2009(C) RESPONDENT(S): ------------------------ 1. STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT DEPARTMENT OF LOCAL SELF GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRCTOR OF PANCHAYAT THIRUVANANTHAPURAM 3. THE DEPUTY DIRECTOR OF PANCHAYATH PATHANAMTHITTA 4. DEPUTY DIRECTOR OF PANCHAYATH THIRUVANANTHAPURAM. 5. DEPUTY DIRECTOR OF PANCHAYAT WAYANAD. R1 TO R5 BY SR.GOVERNMENT PLEADER SMT.ANU SIVARAMAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. P.N.RAVINDRAN, J. ----------------------------- W.P(C) No. 21265 of 2009-C ------------------------------ Dated this the 29th day of July, 2009. J U D G M E N T Heard Sri.Kaleeswaram Raj, the learned counsel appearing for the petitioner and Smt.Anu Sivaraman, the learned Senior Government Pleader appearing for the respondents. 2. The petitioners are Peons working in various Grama Panchayaths. In this writ petition they seek a writ in the nature of mandamus commanding the respondents to promote them to the category of Lower Division Clerk. The petitioners rely on Ext.P1 Government order in support of the said claim. As per the provisions contained in the Kerala Panchayat Subordinate Service Rules, the post of Lower Division Clerk has to be filled up by promotion from Junior Bill Collectors who have passed the SSLC Examination or its equivalent. The rules also provide for appointment by transfer of Full time Librarians or Peons who were in service as on 16.6.1994 subject to the stipulations prescribed in the rules. By Ext.P1 order dated 3.8.2006 the Government proposed to amend the special rules and to enable promotion of Peons who have passed the SSLC Examination or its equivalent and Full Time/Part Time Contingent Employees who have passed the SSLC Examination or equivalent qualification. 5% of the posts in the cadre of W.P(C) No. 21265 of 2009-C 2 Lower Division Clerk were to be reserved to be filled up by promotion from Peons and 5% from Full Time/Part Time Contingent Employees. The petitioners submit that pursuant to Ext.P1 Government order, 141 Peons were promoted to the category of Lower Division Clerk in 14 districts, though the special rules were not amended. 3. The pleadings disclose that Ext.P1 Government order was the subject matter of challenge in W.P(C) No.32167 of 2006, 12903 of 2007 and 10505 of 2007. The said writ petitions were disposed of by Ext.P5 judgment whereby a learned Single Judge of this Court directed the official respondents not to fill up 10% vacancies of Lower Division Clerks by persons from any of the categories of Peons, Part-time and Full time Contingent Staff until the amendment to the rules is carried out. The Government was also directed to decide on the amendment within three months. It appears that one among the petitioners in the said batch of writ petitions had filed Contempt of Court Case No.366 of 2009 contending that the Government have not taken a decision in the matter within the stipulated time limit. When the Contempt of Court Case came up for hearing, the learned Government Pleader appearing for the State of Kerala submitted that the Government have decided not to amend the rules. In that view of the matter, the Contempt of Court Case was closed by Ext.P6 order dated 26.5.2009. It is evident from Ext.P6 order passed in Contempt of Court Case No.366 of 2009 that the decision of the W.P(C) No. 21265 of 2009-C 3 Government is not to amend the special rules in the manner proposed in Ext.P1. Therefore in my opinion, in view of the special rules, the Government order evidenced by Ext.P1 cannot operate. 4. What the petitioners seek is promotion as proposed in Ext.P1. Since Ext.P1 Government order cannot operate when the field is occupied by the special rules and the Government have decided not to carry out the amendment proposed in Ext.P1, the petitioners cannot in my opinion claim or be granted the relief prayed in this writ petition. The petitioners contend that 141 Peons who are similarly situate have been promoted. Some persons have promoted after Ext.P1, but it is denied to persons like the petitioners, it is contended. In my opinion, since the Government have decided not to amend the special rules, those employees who had been given the benefit of Ext.P1 will necessarily have to be reverted. This is a matter for the Government to decide as it is not a relief prayed for in this writ petition. In the light of the stipulations in the special rules governing appointment to the post of Lower Division Clerks as it now stands, the petitioners cannot claim promotion to the post of Lower Division Clerks. The relief prayed for by the petitioner cannot therefore be granted. The writ petition fails and is accordingly dismissed with the observation that in view of the decision taken by the Government not to amend the special rules as proposed in Ext.P1, the Government should W.P(C) No. 21265 of 2009-C 4 consider whether Peons who were similarly placed as the petitioners should continue to enjoy the benefit of promotion given to them based on Ext.P1 Government Order, which did not have any effect on the special rules. Sd/- ab P.N.RAVINDRAN, JUDGE //True Copy// PA to Judge