IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 25TH MARCH 2008 / 5TH CHAITHRA 1930 OP.No. 9129 of 2001(T) -------------------------------- PETITIONERS: ------------------ 1. T.K.ANTONY, S/O.KOCHAPPAN, AG3ED 49 YEARS, U.D.CLERK, VATANAPPILLY GRAMA PANCHAYATH, THRISSUR DISTRICT. 2. U.NARAYANAN, U.D.CLERK, PAVARATTY GRAMA PANCHAYATH, NJAMANANGHAT. 3. K.RAVINDRAN, U.D.CLERK,, VADAKKEKAD GRAMA PANCHAYATH, NJAMANANGHAT, THRISSUR DISTRICT. 4. T.K.ANANKADASAN,. U.D.CLERK, VENKITANGU GRAMA PANCHAYATH, THRISSUR DISTRICT. BY ADV. SRI.V.A.MUHAMMED SRI.K.E.HAMZA SRI.E.S.ASHRAF SRI.T.V.VIJAYARAJAN RESPONDENTS: ----------------------- 1. THE SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT (RURAL) DEPARTMENT, SECRETARIAT,. TRIVANDRUM. 2. THE DIRECTOR OF PANCHAYATH, TRIVANDRUM. BY GOVERNMENT PLEADER SMT.N.SUDHADEVI THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 25/03/2008, ALONG WITH OP NO. 34506 OF 2001 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP. NO.9129/2001 ORDER ON CMP. NO.14529/2001 IN OP. NO.9129/2001 DISMISSED 25.03.2008 SD/- T.R.RAMACHANDRAN NAIR, JUDGE APPENDIX PETITIONERS EXHIBITS EXT.P1:- COPY OF THE JUDGMENT IN OP. NO.1556/2000 DT. 17.1.2000. EXT.P2:- COPY OF THE ORDER NO.S2-11544/2000 OF THE 2ND RESPONDENT DT. 7.6.2000. EXT.P3:- COPY OF THE APPEAL PETITION FILED BEFORE THE IST RESPONDENT BY THE IST PETITIONER DT. 17.6.2000. EXT.P4:- COPY OF THE -DO- OF THE 2ND PETITIONER DT. 17.6.2000. EXT.P5:- COPY OF THE -DO- OF THE 3RD PETITIONER DT. 17.6.2000. EXT.P6:- COPY OF THE -DO- OF THE 4TH PETITIONER DT. 17.6.2000. EXT.P7:- COPY OF THE JUDGMENT IN OP. NO.19200/2000 DT. 10.7.2000. EXT.P8:- COPY OF THE G.O.(RT) NO.60/2001/LSGD OF THE GOVERNMENT DT. 4.1.2001. /TRUE COPY/ P.A. TO JUDGE tss T.R.RAMACHANDRAN NAIR, J. ========================== O.P.NOs.9129 & 34506 of 2001. ========================== Dated this the 25th day of March, 2008. J U D G M E N T Both these writ petitions relate to the claim of petitioners' for seniority in the cadre of Upper Division Clerks from an earlier date than that was now fixed by the competent authority. In OP.No.9129/2001 the challenge is against Exts.P2 and P8 whereby their representations were rejected by the departmental authority and the Government. In OP.No.34506/2001 the petitioners have filed Ext.P2 representation which is practically an objection to the seniority list. 2. The petitioners 1 to 3 in OP.No.9129/2001 entered service in February, 1988 and the 4th petitioner in June, 1988 as Lower Division Clerk. They got test qualified for promotion as U.D. Clerk in May, 1989. Accordingly, they were given promotion as such. In the final seniority list of U.D. Clerks dated 1.1.1997 the O.P.NOs.9129 & 34506 of 2001. -: 2 :- petitioners were given Sl.Nos.1902, 1908, 1912 and 1914 assigning the date of promotion as U.D. Clerks on 23.8.1989. In replacement of the said seniority list dated 1.1.1997 the Director issued another seniority list of U.D. Clerks in service as on 1.1.1990. Therein the petitioners' names were not included. They preferred their objections and staked claim for inclusion in the draft list with effect from 23.8.1989. The contention raised is that at that time their seniors have not qualified the test with reference to the dates of occurrence of vacancies. As per Ext.P1 this Court directed the authority to pass orders on their representations. Thereafter by Ext.P2 their representations were rejected. In Ext.P2 the Director of Panchayats took the view that the petitioners did not qualify for declaration of satisfactory completion of probation for want of the minimum period of duty required for the purpose before 1.1.1990. It is therefore held that they are not entitled for regularisation of promotion as on that date. They challenged the same by filing an appeal before the Government which was disposed of as per Ext.P8 affirming the order Ext.P2. O.P.NOs.9129 & 34506 of 2001. -: 3 :- 3. In OP.No.34506/2001 the petitioners entered service in January, 1988 as Lower Division Clerks. They got test qualified for promotion as Upper Division Clerk in May, 1989. They were given promotion also. Even though they were included in the provisional seniority list of U.D. Clerks dated 1.1.1997 as on 1.1.1990 when the final seniority list was published their names were not included. Therefore they have filed Ext.P2 objection to the final seniority list and thereafter filed this writ petition claiming various reliefs. 4. In the counter affidavit filed in the writ petitions the respondents have explained that even though the petitioners were test qualified for promotion as U.D. Clerks in May, 1989 they had completed the period of probation in the cadre of L.D. Clerk only after 1.1.1990. Though they were included erroneously in the seniority list of U.D. Clerks as on 1.1.1990 which was published on 1.1.1997 as the petitioners were not fully qualified for getting regular promotion and seniority before 1.1.1990 they were not eligible to get a position in the finalised seniority list of U.D. Clerks O.P.NOs.9129 & 34506 of 2001. -: 4 :- in Panchayat Common Service as on 1.1.1990. Therefore their names were not included in the modified seniority list of U.D. Clerks in the Panchayat Common Service as on 1.1.1990 published on 10.3.2000. It is also submitted that the petitioners were earlier promoted only on a provisional basis subject to regularisation. 5. The learned counsel for the petitioners submitted that the view taken by the respondents while rejecting the representations filed by the petitioner in OP.No.9129/2001 is not correct. It is pointed out by the learned counsel by relying upon the averments in the counter affidavit that the respondents admit that the seniors of the petitioners were not test qualified and hence they were provisionally promoted. By relying upon Rule 28(d) it is contended that, the stand taken by the respondents is not correct. 6. The learned Government Pleader submitted that going by Rule 28(a) of the KS & SSR satisfactory completion of the probation is one of the eligibility conditions for promotion. From the averments in the counter affidavit it is clear that when the petitioners were provisionally promoted, their seniors were not test O.P.NOs.9129 & 34506 of 2001. -: 5 :- qualified and therefore they gained the said provisional promotion at that time. But when the question of regular promotion was considered in view of Rule 28(a) they were not entitled to claim such promotion before 1.1.1990. Reliance placed on Rule 28(d) is not correct. Rule 28(d) states as follows: “Duty in a different service counting for probation on promotion:- A member of a service or a class of service promoted from one category to another shall be eligible to count for probation in the higher category his service, if any, performed otherwise than in a substantive capacity on regular appointment to another service, State or Subordinate, in accordance with these rules and the Special Rules, if the normal method of recruitment to the latter service is according to such Special Rules by transfer from the former service or class thereof.” 7. The situation therein is not identical. Therefore the contentions raised based on Rule 28(d) cannot be sustained. In the light of the above clear facts, it is clear that the petitioners were not entitled for seniority in the cadre of U.D. Clerks with effect from 23.8.1989. Therefore there is nothing wrong in their exclusion in the seniority list of U.D. Clerks of Panchayat Common Service as on 1.1.1990. 8. Apart from that if the contentions of the petitioners are O.P.NOs.9129 & 34506 of 2001. -: 6 :- accepted that will affect the seniority position of persons who are already included in the seniority list. In the writ petitions none of the affected parties are impleaded. For all these reasons the writ petitions fail and the same are dismissed. No costs. T.R.RAMACHANDRAN NAIR, JUDGE. kvs/-