IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 5TH JUNE 2009 / 15TH JYAISHTA 1931 WP(C).No. 1420 of 2009(R) ------------------------- PETITIONER: --------------- C.P.VIJAYAKUMARI FULL TIME SWEEPER, VADASSERIKARA GARAM PANCHAYAT PATHANAMTHITTA DISTRICT. BY ADV. DR.K.P.SATHEESAN SRI.K.K.GOPINATHAN NAIR SRI.M.R.JAYAPRASAD SRI.P.MOHANDAS (ERNAKULAM) RESPONDENTS: --------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY LOCAL SELF GOVERNMENT DEPARTMENT GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DEPUTY DIRECTOR OF PANCHAYATS PATHANAMTHITTA. 3. THE SECRETARY VADASSERIKARA GRAMA PANCHAYAT, PATHANAMTHITTA DISTRICT. BY GOVT. PLEADER SRI.ANTONY MUKKATH FOR R1 ADV. SRI. K.SHAJ FOR R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 1420 of 2009(R) PETITIONER'S EXHIBITS: EXT.P1 : COPY OF THE ORDER DATED 22.3.1999 EXT.P2 : COPY OF THE ORDER DATED 20.6.2001 EXT.P3 : COPY OF THE REPRESENTATION DATED 20.9.2008 EXT.P4 : COPY OF THE REPLY DATED 24.10.2008 RESPONDENT'S EXHIBITS: NIL //TRUE COPY// PA to JUDGE P.N.RAVINDRAN, J. ----------------------------- W.P(C) No.1420 of 2009-R ------------------------------ Dated this the 5th day of June, 2009. J U D G M E N T Heard Dr.K.P.Satheesan, the learned counsel appearing for the petitioner, Sri.Antony Mukkath, the learned Government Pleader appearing for respondents 1 and 2 and Sri.K.Shaj, the learned Standing Counsel appearing for the third respondent. The petitioner is presently working as Full Time Sweeper in Vadasserikara Grama Panchayat. He was appointed as Full Time Sweeper under the dying-in-harness scheme on 22.3.1999. The petitioner thereafter applied for change of category as Lower Division Clerk. That request was considered by the Deputy Director of Panchayats who informed the petitioner by Ext.P4 letter dated 24.10.2008 that though last grade employees are eligible to be promoted to the post of Lower Division Clerk in the 10% quota earmarked for in service candidates, the said provision is under challenge in this Court and that as and when the order of stay passed by this Court is vacated, promotions to the category of Lower Division Clerk will be effected based on seniority. The Apex Court has in State of Rajasthan V. Umrao Singh (1994 (6) SCC 560) held that a person appointed under the dying-in-harness scheme cannot seek appointment to another category on compassionate W.P(C) No.1420 of 2009-R 2 grounds. Therefore the petitioner cannot claim the appointment as Lower Division Clerk under the dying-in-harness scheme. The petitioner can claim appointment as Lower Division Clerk only as per the Rules. Therefore the stand taken by the second respondent in Ext.P4 cannot be faulted. The writ petition fails and is accordingly dismissed without prejudice to the petitioner's entitlement to be considered for promotion as and when steps are taken to effect promotions in accordance with the rules governing such promotion. Sd/- P.N.RAVINDRAN JUDGE //True Copy// PA to Judge ab