IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 24TH MARCH 2009 / 3RD CHAITHRA 1931 OP.No. 4330 of 2001(M) --------------------------- PETITIONER(S): --------------- P. SUKUMARAN, SECTION OFFICER, INSTITUTE OF MANAGEMENT IN GOVERNMENT, REGIONAL CENTRE, KOZHIKODE. BY ADV. MR.C.KHALID MR.N.GOPINATHA PANICKER MR.P.VISWAMBARAN MR.R.O.MUHAMED SHEMEEM MR.T.P.SAJID (THALASSERY) RESPONDENT(S): -------------------- 1. THE DIRECTOR, INSTITUTE OF MANAGEMENT IN GOVERNMENT, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM – 33. 2. SECRETARY, INSTITUTE OF MANAGEMENT IN GOVERNMENT, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM – 33. 3. SITADEVI P.D., SECTION OFFICER, INSTITUTE OF MANAGEMENT IN GOVERNMENT, VIKAS BHAVAN P.O. THIRUVANANTHAPURAM -33. ADV. MR.KRB.KAIMAL, SENIOR ADVOCATE MR.T.G.MAHESH FOR R3 MR.T.H.ABDUL AZEEZ FOR R1,2 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 24/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP.No. 4330 of 2001 ORDER ON C.M.P.NO.7130 OF 2001 IN O.P.NO.4330 OF 2001 CLOSED. APPENDIX PETITIONER'S EXHIBITS EXT.P1: COPY OF PROCEEDINGS NO.122/87/IMG DATED 14.8.1987 ISSUED BY THE INSTITUTE OF MANAGEMENT IN GOVERNMENT (RECRUITMENT AND PROMOTION) RULES. EXT.P1(a): COPY OF RULES OF THE I.M.G. THE 1ST RESPONDENT. EXT.P2: COPY OF THE PROVISIONAL SENIORITY LSIT DATED 22.11.1993 ISSUED BY THE 1ST RESPONDENT. EXT.P3: COPY OF THE REPRESENTATION DATED 28.12.1993. EXT.P4: COPY OF THE JUDGMENT DATED 19-10-2000 BY THIS HON'BLE COURT. EXT.P5: COPY OF THE REPRESENTATION DATED 7.12.2000 TO THE 1ST RESPONDENT. EXT.P6: COPY OF LETTER NO.3238/ADMN./A1/2000/IMG DATED 2.1.2001 OF THE 2ND RESPONDENT. R3'S EXHIBITS: EXT.R3(a): COPY OF THE CIRCULAR NO.A1/II/83/IMG DT. 20-06-1983 ISSUED BY THE 1ST RESPONDENT. EXT.R3(b): COPY OF THE OPTIION SUBMITTED BY THE 3RD RESPONDENT TO THE 1ST RESPONDENT DT. 25.6.1983. EXT.R3(c): COPY OF MEMO NO.AI(C1)/84/IMG DT.31-1-1984 ISSUED BY THE 1ST RESPONDENT. EXT.R3(d): COPY OF THE LETTER DATED 7-2-1984 SENT BY THE PETITONER TO THE 1ST RESPONDENT. EXT.R3(e): COPY OF THE ORDER NO.58/84/IMG DT. 8-5-1984 ISSUED BY THE 1ST RESPONDENT. EXT.R3(f): COPY OF THE ORDER NO.100/85/IMG DT. 23.7.1985 OF THE 1ST RESPONDENT. EXT.R3(g): COPY OF THE ORDER NO.4170/A1/95/IMG DT.6-7-1994 ISSUED BY THE 1ST RESPONDENT. EXT.R3(h): COPY OF THE ORDER NO.13/95/IMG DT. 31-1-1995 ISSUED BY R1. OP.No. 4330 of 2001 EXT.R3(i): COPY OF THE ORDER NO.217/95/IMG DT. 18-11-1995 ISSUED BY THE 1ST RESPONDENT. EXT.R3(j): COPY OF THE ORDER NO.89/96/IMG DT.24-6-1996 ISSUED BY THE 1ST RESPONDENT. EXT.R3(k): COPY OF THE ORDER NO.237/96/IMG DT: 16-12-1996 ISSUED BY THE 1ST RESPONDENT. TRUE COPY PA TO JUDGE. S. SIRI JAGAN, J. ------------------------------------ O.P.No. 4330 2001 ---------------------------------------- Dated this the 24th day of March, 2009 JUDGMENT The petitioner entered service of the Institute of Management in Government as Assistant Gr.II. By promotion, he became Section Officer on 23.6.1995. While he was continuing so, a provisional seniority list was published, in which the 3rd respondent was shown above the petitioner. The petitioner challenged the same by filing O.P.No.29412/2000. This Court by Ext.P4 judgment directed as follows: “Grievance of the petitioner is that provisional seniority list published as per Ext.P1 is not yet finalized considering the objection. If Ext.P1 is not yet finalized so far, the 1 st respondent shall take steps to finalise Ext.P1 at any rate within three months from the date of receipt of a copy of this judgment. On the other hand, if Ext.P1 is already finalized, that fact shall also be intimated to the petitioner”. Pursuant thereto, the petitioner was informed as follows by Ext.P6: O.P.No.4330/01 2 “I am to inform you that a provisional seniority list of Assistants of IMG as on 1.10.1993 were published on 22.11.1993 calling objections if any. The objection petition filed by you are seen examined in detail, in the file and also a reply is seen given to you as per the office records. However, a copy of the same is enclosed. Also I am to inform you that, as per the directions of High Court in its judgement in OP No.29412/2000 B the Ext.P1 seniority list of Assistants of IMG has since been finalized and published. A copy of the same is enclosed for reference”. Thereafter, Ext.P7 notification was issued as follows: “AS per Note No.A1 (SL-Assistants)/ 93/IMG,dt.22.11.1993 provisional seniority list of Assistants were issued. The objection petition received against the same has been examined in detail and the same has been disposed off after giving replies to the petitioners. In the circumstances, the seniority list as on 1.10.93, issued is made absolute and the final seniority list of Assistants as on 1.10.93 is issued herewith”. The petitioner is challenging those orders seeking the following reliefs: “i) to call for the records leading to the order absorbing the 3rd respondent as Assistant Grade I and the order granting special exemption to the 3rd respondent from passing the obligatory test for Assistants and quash the said orders by issuing a writ of certiorari or any other appropriate writ order or direction; ii) to call for the records leading to the preparation of Ext.P8 final seniority list and quash Ext.P8 final seniority list by issuing a writ of certiorari or any other appropriate writ order or directions; iii) to declare that the petitioner is senior to the 3rd respondent as per Rule 2.14 read with Rule 2.10 of O.P.No.4330/01 3 the service Rules of the Institute of Management in Government; iv) to issue a writ of mandamus or any other appropriate writ order or direction commanding the 1st respondent to prepare and publish the seniority list of Assistant Grade I strictly in conformity with Rule 2.14 and 2.10 of the Service Rules of Institute of Management in Government; v) to issue a writ of mandamus or any other appropriate writ order or direction commanding the 1st respondent not to promote the 3rd respondent to the post of Assistant Director till the petitioner is promoted to that post; vi) to issue a writ of mandamus or any other appropriate writ order or direction commanding the 1st respondent to examine impartially Ext.P5 representation and pass appropriate orders thereon without any further delay”. 2. The petitioner’s contention is that the service conditions of the employees of the Institute of Management in service are governed by Ext.P1(a) Recruitment Rules. According to the petitioner, as per those Recruitment Rules, the post of Assistant Gr.I is to be filled up only by promotion from among Assistants Gr.II. However, the 3rd respondent was appointed on 18.4.1983 on deputation in the Institute of Management in Government as Assistant Gr.I. She was later absorbed in the service of the 1st respondent permanently on 12.4.1984 as Assistant Gr.I. The petitioner submits that the absorption of the 3rd respondent itself is illegal and O.P.No.4330/01 4 unsustainable in so far as the same is against the Recruitment Rules. 3. I have heard the learned counsel for the 3rd respondent also. I am of opinion that the petitioner’s contention cannot be considered at this distance of time. Admittedly the service of the 3rd respondent was regularized on 12.4.1984. The petitioner’s contention is that he did not know about the illegal absorption of the 3rd respondent and that is why he could not challenge the same. But it is an admitted fact that the petitioner had earlier filed O.P.No.29412/2000 challenging the provisional seniority list. The petitioner could have challenged the validity of the absorption of the 3rd respondent at least then. Even if he had done so, by Ext.P4 judgment, the same had not been accepted. By Ext.P4 judgment, the relief granted to the petitioner was only for finalization of the provisional seniority list. After suffering Ext.P4 judgment, the petitioner cannot file another writ petition challenging the validity of the absorption of the 3rd respondent in service. Going by the date of absorption of the 3rd respondent, the 3rd respondent is clearly senior to the petitioner. In this connection, I also note the contention of the O.P.No.4330/01 5 learned counsel for the 3rd respondent that Ext.P1 Recruitment Rules were issued on 14.8.1987 with effect from 1.8.1987 and therefore those Recruitment Rules cannot be pressed into service to challenge the absorption of the 3rd respondent on 12.4.1984. Therefore, there is no merit in this original petition and accordingly, the same is dismissed. S. SIRI JAGAN, JUDGE Acd O.P.No.4330/01 6