IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 22ND DECEMBER 2009 / 1ST POUSHA 1931 WP(C).No. 33596 of 2005(Y) ------------------------------------- PETITIONER(S): ------------------------- G.SATHYASEELAN, ASSISTANT DIRECTOR OF SURVEY AND LAND RECORDS (RE-SURVEY NO.1), PATHANAMTHITTA. BY ADV. SMT.I.SHEELA DEVI RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR OF SURVEY AND LAND RECORDS, THIRUVANANTHAPURAM. 3. REVEENDRAN PILLAI P., DEPUTY DIRECTOR OF SURVEY AND LAND RECORDS, KOTTAYAM. 4. PAPPACHEN P.V., DEPUTY DIRECTOR OF SURVEY AND LAND RECORDS, PALAKKAD. R1 & R2 BY GOVERNMENT PLEADER SMT.N.SUDHADEVI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.33596/2005 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE PROMOTION ORDER G.3-1997/2000 DTD. 20.7.2000 ISSUED BY THE 2ND RESPONDENT. P2:- COPY OF THE GOVERNMENT ORDER NO.182/2001/RV.DTD. 12.7.01 ISSUED BY THE IST RESPONDENT. P3:- COPY OF THE PROCEEDINGS NO.D.1580/2000 DTD. 4.1.01 ISSUED BY THE DISTRICT COLLECTOR, PATHANAMTHITTA. P3(a):- COPY OF THE PROCEEDINGS NO.A2/6111/99 DTD. 8.1.01. P4:- COPY OF THE PROCEEDING NO.G1/38887/2000 DTD. 18.1.01 ISSUED BY THE DEPUTY DIRECTOR OF SURVEY. P5:- COPY OF THE REPRESENTATION DTD. 1.8.02 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT. P6:- COPY OF THE RELEVANT EXTRACT DTD. 6.11.04 ISSUED BY THE IST RESPONDENT. P7:- COPY OF THE REPRESENTATION DTD. 12.3.04 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT. P8:- COPY OF THE ORDER G.O.(RT) 3749/05/R.D. DTD. 29.6.05 ISSUED BY THE IST RESPONDENT. P9:- COPY OF THE ORDER G.O.(RT) NO.5683/05/RD DTD. 22.10.05 ISSUED BY THE IST RESPONDENT. P10:- COPY OF THE NOTICE ISSUED BY THE JOINT DIRECTOR OF SURVEY TO THE PETITIONER DTD. 23.3.05. P11:- COPY OF THE COMMUNICATION ISSUED BY THE REGIONAL JOINT DIRECTOR TO THE PETITONER NO.A1.1116/05 DTD. 11.11.05. P12:- COPY OF THE ORDER ISSUED BY THE IST RESPONDENT NO.G.O(RT) NO.2613/06/RD. TRUE COPY P.A. TO JUDGE tss S.SIRI JAGAN,J. ------------------------- W.P ( C) No.33596 of 2005 -------------------------- Dated this the 22nd December,2009 J U D G M E N T The petitioner entered service of the Government of Kerala in the Revenue Department as a Second Grade Surveyor on 17.5.1972. He was promoted as Head Surveyor on 20.7.2000. He was later promoted as Superintendent of Survey on 29.6.2005. In the post of Head Surveyor, the petitioner was senior to respondents 3 and 4. By Ext.P6, the petitioner was assigned the date of promotion as Superintendent of Survey as 1.9.2002. Overlooking the seniority of the petitioner, respondents 3 and 4 were promoted as Assistant Director and then as Deputy Director. The petitioner is aggrieved by such supersession in the matter of promotion and therefore he is seeking the following reliefs. "i. Issue a writ in the nature of mandamus or any other appropriate writ, direction or order directing the 2nd respondent to assign seniority to the petitioner in the cadre of Superintendent Assistant Director and Deputy Director above 3rd and 4th respondents and grant him all consequential benefits arising therefrom. W.P ( C) No.33596 of 2005 2 ii. Issue a writ in the nature of mandamus or any other appropriate writ, direction or order directing the respondents to promote the petitioner provisionally as Deputy Director of Survey with immediate effect since his juniors have been promoted as per Ext.P9 order; iii Issue a writ in the nature of mandamus to the 1st respondent to convene a proper D.P.C and to issue select list for promotion as Assistant Director and Deputy Director of Survey with entitled dates with all consequential benefits including fixation of pay and arrears of salary." 2. Petitioner contends that by Ext.P9, respondents 3 and 4 who were juniors to the petitioner in service were promoted ahead of the petitioner as Assistant Director and Deputy Director, which is unsustainable. He further submits that although there were vacancies, the petitioner was not promoted as Deputy Director. 3. A counter affidavit has been filed by the 1st respondent contending that although the petitioner was senior to respondents 3 and 4 in the post of Head Surveyor, he became junior to them in the post of Superintendent of Survey since he did not satisfactorily complete the probation in the post of Head Surveyor before respondents 3 and 4, consequent to which respondents 3 and 4 W.P ( C) No.33596 of 2005 3 happened to be promoted earlier than the petitioner in the post of Superintendent of Survey. Therefore, in the cadre of Superintendent of Survey, respondents 3 and 4 became senior to the petitioner and consequently for promotion to the post of Assistant Director and Deputy Director, respondents 3 and 4 had to be considered ahead of the petitioner which only was done. It is also denied in the counter affidavit that there was any vacancy to which the petitioner could have been promoted before his date of retirement on 31.5.2006. 4. I have considered the rival contentions in detail. 5. Admittedly, respondents 3 and 4 were promoted to the cadre of Superintendent of Survey ahead of the petitioner years ago. Petitioner did not care to challenge their promotion at the right time. As such, it is too late the day for the petitioner to contend that respondents 3 and 4 could not have been promoted in the post of Assistant Director and Deputy Director ahead of the petitioner. The petitioner could not produce any satisfactory materials on record to prove before me that W.P ( C) No.33596 of 2005 4 petitioner was denied promotion to a vacancy which arose before his retirement on 31.5.2006. Without a vacancy, the petitioner cannot seek a direction to promote him. In the above circumstances, there is no merit in the prayer for promotion of the petitioner prior to his date of retirement also. Therefore, there is no merit in the writ petition and accordingly the same is dismissed. S.SIRI JAGAN, JUDGE ma W.P ( C) No.33596 of 2005 5 W.P ( C) No.33596 of 2005 6