IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 1ST OCTOBER 2009 / 9TH ASWINA 1931 WP(C).No. 16028 of 2007(R) -------------------------- PETITIONER(S): ------------------ 1. M.J.XAVY, LIBRARY ASSISTANT GRADE II, HIGH COURT OF KERALA, ERNAKULAM. 2. A.C.NANDAKUMAR, LIBRARY ASSISTANT GRADE II, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.K.JAJU BABU SMT.M.U.VIJAYALAKSHMI SRI.BRIJESH MOHAN SRI.T.R.SADEESAN SMT.DHANYA CHANDRAN RESPONDENT(S): -------------------- 1. THE HIGH COURT OF KERALA, KOCHI-31, REPRESENTED BY ITS REGISTRAR (GENERAL) 2. SRI.K.P.JOHNEY, LIBRARY ASSISTANT GRADE-II, HIGH COURT OF KERALA, ERNAKULAM. 3. SRI.K.R.MOTHILAL, LIBRARY ASSISTANT GRADE-II, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.DEEPU THANKAN FOR R2 & 3 SRI.KRB.KAIMAL, SENIOR ADVOCATE FOR R1 SRI.B.UNNIKRISHNA KAIMAL FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.16028/07 APPENDIX PETITIONERS' EXHIBITS EXT.P1: TRUE COPY OF ORDER NO.A3-38216/2000 DT 22.11.2001 ISSUED BY THE 1ST RESPONDENT. EXT.P2: TRUE COPY OF ORDER NO.A2-69236/02 DT 27.9.04 ISSUED BY THE 1ST RESPONDENT. EXT.P3: TRUE COPY OF THE ORDER NO.A3-207/04 DT 3.2.04 ISSUED BY THE 1ST RESPONDENT. EXT.P4: TRUE COPY OF THE ABSTRACT ORDER DT 1.2.2005 ISSUED BY THE 1ST RESPONDENT. EXT.P5: TRUE COPY OF ORDER NO.A3-9895/2004 DT 21.5.04 ISSUED BY THE 1ST RESPONDENT. EXT.P6: TRUE COPY OF OFFICIAL MEMORANDUM NO.A2-12438/2004 DT 27.6.04 ISSUED BY THE 1ST RESPONDENT. EXT.P7: TRUE COPY OF REPRESENTATION SUBMITTED BY THE 1ST PETITIONER BEFORE THE GRIEVANCE CELL OF THE 1ST RESPONDNET ON 22.7.04. EXT.P8: TRUE COPY OF REPRESENTATION SUBMITTED BY THE 2ND PETITIONER BEFORE THE GRIEVANCE COMMITTEE OF THE 1ST RESPONDENT DT 28.8.06. EXT.P9: TRUE COPY OF OFFICIAL MEMORANDUM NO.A2-12436/2004(1) DT 27.10.06 ISSUED BY THE 1ST RESPONDNET. EXT.P10: TRUE COPY OF OFFICIAL MEMORANDUM NO.A2-12438/2004(2) DT 27.10.06 ISSUED BY THE 1ST RESPONDENT. EXT.P11: TRUE COPY OF ORDER NO.A2-3364/91, DT 3.10.91 ISSUED BY THE 1ST RESPONDENT. EXT.P12: TRUE COPY OF THE ORDER NO.A2-26982/2005 DT 8.11.06 ISSUED BY THE 1ST RESPONDENT. EXT.P13: TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE 1ST PETITIONER BEFORE THE HON'BLE CHIEF JUSTICE OF HIGH COURT OF KERALA DT 4.12.06. EXT.P14: TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE 2ND PETITIONER BEFORE THE HON'BLE CHIEF JUSTICE OF HIGH COURT OF KERALA DT 4.12.06. WPC NO.16028/07 -2- EXT.P15: TRUE COPY OF THE OFFICIAL MEMORANDUM NO.A2- 12438/2006(1) DT 24.3.2007 ISSUED BY THE 1ST RESPONDENT. EXT.P16: TRUE COPY OF THE OFFICIAL MEMORANDUM NO.A2- 12438/2006(2) DT 24.3.07 ISSUED BY THE 1ST RESPONDENT. EXT.P17: TRUE COPY OF NOTIFICATION NO.A3-11052/1996 DT 6.1.2005 ISSUED BY THE 1ST RESPONDENT. EXT.P18: TRUE COPY OF NOTIFICATION NO.A3-11052/1996 DT 23.2.2005 ISSUED BY THE 1ST RESPONDENT. EXT.P19: TRUE COPY OF PROCEEDIGNS DT 21.11.2005 ISSUED BY THE 1ST RESPONDENT. EXT.P20: TRUE COPY OF OFFICE MEMORAUDM NO.A2-53461/2006 DT 23.6.07 ISSUED BY THE 1ST RESPONDENT. EXT.P21: TRUE COPY OF OFFICE MEMORANDUM NO.A2-76225/2007 DT 9.1.2008. EXT.P22: TRUE COPY OF NOTIFICATION NO.A2.76225/2007 DT 9.1.08 ISSUED BY THE 1ST RESPONDENT. EXT.P23: TRUE COPY OF PROCEEDINGS NO.A2-76225/2007 DT 15.3.08 ISSUED BY THE 1ST RESPONDENT. //TRUE COPY// P.A. TO JUDGE Rp ANTONY DOMINIC, J. ================ W.P.(C) NO. 16028 OF 2007 (R) ===================== Dated this the 1st day of October, 2009 J U D G M E N T The prayer sought in this writ petition is to quash Exts.P6, P9, P10, P15 and P16. Petitioners also seek a declaration that they are entitled to seniority in the cadre of Library Assistant Grade II in preference to respondents 2 and 3. On that basis, consequential orders directing them to be given seniority and promotion to the cadre of Library Assistant is also sought for. 2. First petitioner entered as a watchman on 24/1/87. He was promoted as Court Keeper on 20/8/99 and by Ext.P1 order, he was promoted as Attender Grade II w.e.f. 21/11/01. By Ext.P2, he was thereafter promoted as Library Assistant Grade II w.e.f. 27/9/04. 3. In so far as the second petitioner is concerned, he commenced his service as Peon w.e.f. 3/11/87 and was promoted as Court Keeper w.e.f. 26/7/2002 and by Ext.P3 order, again as Attender Grade II w.e.f. 3/2/04. Subsequently, by Ext.P4 order, he was promoted as Library Assistant w.e.f. 31/1/2005. 4. In so far as respondents 2 and 3 are concerned, both WPC 16028/07 :2 : commenced service as Gardener w.e.f. 27/9/93 and were promoted as Court Keeper by Ext.P5 order dated 21/5/2004. By Ext.P2, they were also promoted as Library Assistant w.e.f. 27/9/04, the date on which the first petitioner was promoted to that post. However, respondents 2 and 3 were assigned seniority over the petitioners and it is this grievance which is highlighted in this writ petition. 5. Petitioners contend that going by the length of service rendered by them, they are seniors to respondents 2 and 3. It is also their case that Library Assistant and Attender Grade II are categorized in Division II, a category higher to Division IV, where the post of Gardener and Court Keeper, the posts held by respondents 2 and 3, are included. It is contended that when promotion is made to the post of Library Assistants, since the petitioners were in Division II, they ought to have been given seniority over respondents 2 and 3 who were in Division IV, a lower one. 6. 1st respondent has filed a counter affidavit justifying the seniority that is assigned. It is stated that on 8/10/2003, three vacancies of Library Assistants in the scale of pay of Rs.3050- 5230 arose and applications were invited from qualified and WPC 16028/07 :3 : willing employees in the pay scales of Rs.2750-4625 and 2650- 4150 for appointment. There was no applicant working in the pay scale of Rs.2750-4625. However, petitioners and respondents 2 and 3 and few others working in the scale of pay of Rs.2650-4150 applied in response to the notification. It is stated that the first and second petitioner have rendered service in various categories in the scale of pay of Rs.2650-4150 from 20/8/99 and 26/7/02 respectively. 7. In so far as respondents 2 and 3 are concerned, it is stated that they commenced their service in the aforesaid scale of pay w.e.f. 27/9/93 and 14/8/95. Accordingly, against the three then existing vacancies, respondents 2 and 3 and the first petitioner were promoted by Ext.P2 order w.e.f. 27/9/04. It is stated that such promotions were effected and seniority assigned reckoning the length of service of the aforesaid employees in the scale of pay of Rs.2650-4150. It is also stated that when another vacancy arose, second petitioner was promoted as Library Assistant on 31/1/2005 as per Ext.P4 order. 8. The question that arises for consideration is whether the petitioners having commenced service earlier and working in the post of Attender Grade II, falling in Division II as per the WPC 16028/07 :4 : Kerala High Court Service Rules 1970, should have been assigned seniority over respondents 2 and 3, who were working as Court Keepers, which post is categorized under Division IV. 9. Going by the Recruitment Rules, the post of Library Assistant is to be filled up by promotion, transfer or direct recruitment and the feeder categories are not specified. It was apparently because feeder categories are not specified in the Rules, that when the appointing authority resorted to promotion, applications were invited from existing employees working in the pay scales of Rs.2750-4625 and 2650-4150. Admittedly, petitioners and respondents 2 and 3 were then working in the pay scales of Rs.2650-4150. There is also no dispute on the fact that respondents 2 and 3 commenced service in the aforesaid scale of pay on 27/9/93 and 14/8/95 as against 20/8/99 and 26/7/02 when the petitioners were placed in the scale. In my view, in such a situation, seniority among the promotees has to be reckoned in terms of Rule 15(1)(a), which provides that seniority of a member in any category of service shall be determined by the date of first appointment in such category. In the context of the fact that applications are invited specifying the scale of pay, the 'category' mentioned in 15(1)(a) has to be understood as the scale of pay. If WPC 16028/07 :5 : so understood, respondents 2 and 3 having commenced service in the scale of pay of Rs.2650-4150 prior to the petitioners are entitled to be assigned seniority over the petitioners. 10. Petitioners contend that thus far recruitments have been made from the immediate lower categories, and if so, the Attender ought to have been preferred for appointment against Court Keepers. This submission is made on the basis that Attender Grade II belong to Division II of the Rules while the post of Court Keeper is included only in Division IV. However, this argument cannot be considered for the reason that irrespective of the categorization into Divisions, fact remains that when applications are invited, the appointing authority only specified the scale of pay. The petitioners have not challenged the notification and on the other hand are attempting to take advantage of the notification and going by the notification, what is relevant is only the scale of pay. In such circumstances, it is not open to the petitioners to raise this argument. I am not satisfied that the petitioners have made out a case for interference. Writ petition fails and is dismissed. ANTONY DOMINIC, JUDGE Rp