IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 19TH JANUARY 2009 / 29TH POUSHA 1930 WP(C).No. 11636 of 2005(I) -------------------------- PETITIONER(S): --------------- P.V.MARIAMMA, SECTION OFFICER, OFFICE OF THE KERALAK PUBLIC SERVICE COMMISSION, THIRUVANANTHAPURAM. BY ADV. SRI.KRB.KAIMAL (SR.) SRI.B.UNNIKRISHNA KAIMAL RESPONDENT(S): --------------- 1. THE KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, P.S.C.OFFICE, PATTOM, THIRUVANANTHAPURAM. 2. THE CONVENOR, DEPARTMENTAL PROMOTION COMMITTEE (SECRETARY TO PUBLIC SERVICE COMMISSION) P.S.C.OFFICE, THIRUVANANTHAPURAM. 3. A.SREEKUMARAN ACHARI, UNDER SECRETARY, P.S.C. DISTRICT OFFICE, KANNUR. ADV. SRI.ALEXANDER THOMAS,SC,KPSC FOR R1 TO 3 SMT.P.V.ASHA FOR R3 GOVT. PLEADER SMT. K.R. DEEPA. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: W.P.C.NO. 11636/2005. --------------------------------------------------------------------- EXT.P1 TRUE COPY OF GOVT. ORDER DT. 5-6-1989. EXT.P2 LETTER DT. 13-5-1999. EXT.P3 NOTIFICATION DT. 18-10-1999. EXT.P4 JUDGMENT IN W.A.NO. 1554/2000. EXT.P5 ORDER DT. 18-11-2000. EXT.P6 PROVISIONAL SENIORITY LIST. EXT.P7 REPRESENTATION DT. 10-5-2004. EXT.P8 DO. DT. 28-9-2004. EXT.P9 ORDER DT. 31-1-2005. EXT.P10 REPRESENTATION DT. 2-3-2005. RESPONDENTS' EXHIBITS: -------------------------------------- EXT.R3(a) ORDER DT. 2-11-1999. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W. P (C) No. 11636 of 2005 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 19th January, 2009. J U D G M E N T The petitioner filed this writ petition when she was working as a Section Officer in the Office of the Public Service Commission. The issue involved in this writ petition though is one of as to who, as between the petitioner and the 3rd respondent, is to be promoted first as Section Officer, now that both have been promoted, essentially boils down to a claim for inter se seniority between the petitioner on the one hand and the 3rd respondent on the other in the post of Section Officer and consequent right to be promoted further to higher posts. The facts necessary for disposal of this writ petition can be summarised as under: 2. The petitioner was a Confidential Assistant in the office of the Public Service Commission. The 3rd respondent was an Assistant in the same office. Both were entitled to be considered for promotion as Section Officer as per the recruitment rules. Ext. P1 is the Government Order containing the recruitment rules applicable for such promotion. Ext. P1 contemplated three sources for appointment by transfer to the post of Section Officer. Category 1 was Senior Grade Assistant (including Office Superintendents) or in the absence of Senior Grade Assistant, Assistant Grade I. Category 2 was Typist (including Office Superintendents) and category 3 was Confidential Assistant (including Office Superintendents). By a Note in Ext. P1 order, it was specifically made clear that appointment by transfer from among the categories of Typist, Confidential Assistant and Senior Grade Assistant, including Assistant Grade I, including Office Superintends, promoted from all categories in the Kerala Secretariat Subordinate Service to the post of Section Officer, Administrative Secretariat will be made in the ratio of 1:1:15. For Confidential Assistants and Typists for promotion to the post of Section Officer, a W.P.C. No. 11636/2005. -: 2 :- pass in a suitability test conducted for the purpose was mandatory. While the petitioner was working as Senior Grade Confidential Assistant, she passed the suitability test. After the suitability test, the persons eligible for promotion to the post of Section Officer are expected to undergo training as Assistant for one year. The procedure adopted by the Public Service Commission is to put all Confidential Assistants and Typists who have passed the suitability test on training, who would continue as such and when their turns for appointment come, they would be promoted as Section Officers. Accordingly, after passing the suitability test, the petitioner was also posted for training as Assistant. The period of training was completed on 17-8-1998. While the petitioner was undergoing the training, the petitioner was promoted as Selection Grade Confidential Assistant. The recruitment Rules also provided that Confidential Assistants and Typists would not be promoted as Section Officer, even applying the ratio, if any Assistant eligible for such promotion, having longer service than the Confidential Assistants and Typists is available in service. But, the 3rd respondent does not have longer service than the petitioner. In 1999, the petitioner's turn for promotion arose. At that time, the Public Service Commission entertained a doubt as to whether a Selection Grade Confidential Assistant, which is in the gazetted category, was eligible for promotion as Section Officer, which is also in the gazetted category. The issue was raised before the Government. By Ext. P2 dated 13-5-1999, the Government clarified to the Public Service Commission that both the posts of Selection Grade Confidential Assistant and Section Officer being in the same scale of pay, Selection Grade Confidential Assistants are not eligible to compete for the post of Section Officer. The 3rd respondent, along with others, filed O.P.No. 16430/1999 before this Court challenging apprehended promotion of the petitioner as Section W.P.C. No. 11636/2005. -: 3 :- Officer, notwithstanding Ext. P2 clarification issued by the Government. This Court passed an interim order to the effect that no promotion except in accordance with Ext. P2 clarification shall be made. Subsequently, the Public Service Commission issued Ext. P3 select list of persons selected for appointment as Section Officer for the year 1999. 21 Assistants were included therein in Category, of which the 3rd respondent was the 10th candidate. No persons in Category 2 and 3 have been included in that list. But, in Ext. P3, a note was added to the effect that the said select list is subject to the result of the decision in O.P.No. 16430/1999 filed by the 3rd respondent and others and other writ petitions mentioned therein. 3. In the meantime, there was also another development . In the year 1995, 16 posts of Personal Assistants were created with effect from 1992. Willingness were called for from among Confidential Assistants also for promotion to that post. The petitioner expressed her willingness, but for promotion both as Personal Assistant and Section Officer. However, the petitioner was not given promotion to the post of Personal Assistant. Therefore, she filed O.P.No. 2019/1999 claiming promotion as Personal Assistant. While so, this Court dismissed O.P.No. 16430/1999, holding that Ext. P2 clarification issued by the Government is not valid. The petitioner also withdrew O.P.No. 2019/1999. The 3rd respondent and others filed W.A.No. 1554/2000, which was also dismissed by Ext. P4 judgment on 5-9-2000. While so, by Ext. P5 order dated 18-11-2000, the petitioner was also promoted as Section Officer. But, in that order, it was made clear that the seniority of the petitioner would be fixed later. Ext. P6 provisional seniority list including that of Section Officers was also published as on 30-11-2003, in which the petitioner was shown below the 3rd respondent. The petitioner challenged the seniority position by filing Exts.P7 and P8 representations and other W.P.C. No. 11636/2005. -: 4 :- representations mentioned in Exts.P.7 and P8. Exts.P7 and P8 and other representations were not answered by the Public Service Commission. While so, by Ext. P9 order dated 31-1-2005, the 3rd respondent was promoted as Under Secretary. According to the petitioner, prior to Ext. P9 order promoting the 3rd respondent as Under Secretary, no select list was actually drawn up. When she came to know about Ext. P9 promotion order, she filed Ext. P10 representation before the Convener of the Departmental Promotion Committee stating that no select list drawn up by the Public Service Commission for promotion to the post of Under Secretary was seen published and communicated and therefore the petitioner may be considered for promotion as Under Secretary with effect from the date of the order promoting the 3rd respondent, after hearing the petitioner in accordance with Rule 28 of Part II of the Kerala State and Subordinate Service Rules. Since the same was also not considered, the petitioner has filed this writ petition seeking the following reliefs: “i) Issue a writ of mandamus to respondents 1 and 2 to consider Exts.P7 and P8 and to include the petitioner in the select list of 1999 (Ext. P3) for promotion as Section Officer from the category of Confidential Assistants and to assign seniority to the petitioner above 3rd respondent in the category of Section Officers. ii) a writ of mandamus to the 1st respondent to grant at least notional promotion to the petitioner as Section Officer with effect from 6-7-1999 the date of promotion of the 3rd respondent. iii) a writ of certiorari quashing/setting aside Ext. P6 to the extent the petitioner is not included above the 3rd respondent and also Ext. P9 to the extent the 3rd respondent is promoted as Under Secretary. iv) a writ of mandamus to the 2nd respondent to consider Ext. P10 and include the petitioner in the select list for promotion as Under Secretaries, by assigning placement above 3rd respondent. v) a writ of mandamus to the 1st respondent to promote the W.P.C. No. 11636/2005. -: 5 :- petitioner as under Secretary with effect from the date of promotion given to 3rd respondent, and to grant all consequential benefits including seniority over the 3rd respondent.” 4. The petitioner contends that in Ext. P3 select list, all the persons included above the 3rd respondent are persons having longer service as Assistants than the petitioner and therefore the petitioner cannot validly make any claim for promotion in preference to them. But, the 3rd respondent did not have that advantage. Since the petitioner's chance as per the ratio prescribed for promotion as Section Officer arose prior to that of the 3rd respondent, the petitioner was eligible to be considered for appointment as Section Officer in preference to the 3rd respondent. The petitioner would contend that in so far as the petitioner was a party to O.P.No. 16430/1999 and the Public Service Commission themselves, in Ext. P3, made the select list subject to the result of the said original petition, when the said original petition and the writ appeal were dismissed, the Public Service Commission was bound to review Ext. P3 in accordance with the decision in the original petition and writ appeal. Further, Ext. P5 order promoting the petitioner specifically stated that the seniority of the petitioner would be fixed later. When Ext. P6 provisional seniority list was published, without taking into account the petitioner's claim for earlier promotion than the 3rd respondent, the petitioner filed objections to the said seniority list also. In Exts.P7 and P8, she also requested that she may be notionally promoted as Section Officer with effect from 6-7-1999, ie. the date on which the 3rd respondent was promoted, who had lesser service in the Public Service Commission than the petitioner. None of those objections were answered. When Ext. P9 promotion order was issued promoting the 3rd respondent as Under Secretary, then also the petitioner filed Ext. P10 representation before the DPC, which was W.P.C. No. 11636/2005. -: 6 :- also not answered. According to the petitioner, in such circumstances, when, admittedly, the petitioner was eligible to be promoted in preference to the 3rd respondent as Section Officer, the Public Service Commission is bound to review Ext. P3 select list and also all other further promotions, wherein the 3rd respondent has been given promotion in preference to the petitioner in accordance with the promise held out by the Public Service Commission in Ext. P3 to the effect that Ext. P3 select list has been issued subject to the result of O.P. No. 16430/1999. The petitioner therefore submits that the petitioner is entitled to the reliefs prayed for in the original petition, which are as follow: “i) Issue a writ of mandamus to respondents 1 and 2 to consider Exts.P7 and P8 and to include the petitioner in the select list of 1999 (Ext. P3) for promotion as Section Officer from the category of Confidential Assistants and to assign seniority to the petitioner above 3rd respondent in the category of Section Officers. ii) a writ of mandamus to the 1st respondent to grant at least notional promotion to the petitioner as Section Officer with effect from 6-7-1999 the date of promotion of the 3rd respondent. iii) a writ of certiorari quashing/setting aside Ext. P6 to the extent the petitioner is not included above the 3rd respondent and also Ext. P9 to the extent the 3rd respondent is promoted as Under Secretary. iv) a writ of mandamus to the 2nd respondent to consider Ext. P10 and include the petitioner in the select list for promotion as Under Secretaries, by assigning placement above the 3rd respondent. v) a writ of mandamus to the 1st respondent to promote the petitioner as Under Secretary with effect from the date of promotion given to 3rd respondent and to grant all consequential benefits including seniority over the 3rd respondent.” 5. Counter affidavits have been filed by the Public Service Commission and the 3rd respondent. The primary contention of the W.P.C. No. 11636/2005. -: 7 :- Public Service Commission is that no right accrues to the petitioner on account of the Note in Ext. P3 select list to the effect that the select list was subject to the result of O.P.No. 16430/1999. The contention is that the petitioner had not sought any promotion as Section Officer in preference to the 3rd respondent and in the judgment in the original petition and in the writ appeal in which the petitioner was only a respondent, no relief whatsoever has been granted to the petitioner in the absence of which she cannot now seek notional promotion above the 3rd respondent retrospectively she having not cared to seek appropriate relief regarding promotion to the post of Section Officer when she actually became eligible for such promotion. Counsel for the Public Service Commission relies on a Division Bench decision of this Court in W.A.No. 919/2000, invoking the theory of 'sit back' in the matter of seniority and promotion. A further contention is also raised to the effect that the petitioner was all along canvassing for promotion as Personal Assistant, for which purpose she had filed a writ petition also before this Court, which would go to show that the petitioner herself was of the firm belief that she was not eligible for promotion as Section Officer and she was only prosecuting her claim for promotion as Personal Assistant. Therefore, counsel submits that the claim of the petitioner for notional promotion to the post of Section Officer in preference to the 3rd respondent has become stale and unenforceable. 6. While adopting the contentions of the Public Service Commission, the 3rd respondent would add that the petitioner cannot now raise the claim against him since the petitioner has not chosen to implead the persons below the 3rd respondent in Ext. P3 select list as also those persons included in Ext. P6 seniority list in between the 3rd respondent and the petitioner. The 3rd respondent would also submit that in between Ext. P9 and his promotion as Under Secretary, he was W.P.C. No. 11636/2005. -: 8 :- promoted as Higher Grade Section Officer, which has not been challenged by the petitioner. He further submits that further to the promotion as Under Secretary, the 3rd respondent has been further promoted as Higher Grade Under Secretary and Deputy Secretary, which promotions are not under challenge in this writ petition and, therefore, it is too late in the day for the petitioner to seek seniority and notional promotion as Section Officer in preference to the 3rd respondent. 7. I have considered the rival contentions in detail. 8. Straightaway, I shall dispose of the contention raised by the 3rd respondent regarding non-joinder of parties. The contention of the 3rd respondent is that the petitioner has not chosen to implead the persons below the 3rd respondent in Ext. P3 and persons in between the 3rd respondent and the petitioner in the seniority list. I am of opinion that such a contention is not available to the 3rd respondent in so far as even the Public Service Commission has no such contention in their counter affidavit. Even otherwise, in so far as Ext. P3 has been made subject to the result of O.P.No. 16430/99, I am of opinion that the others below the 3rd respondent in Ext. P3 need not be impleaded as respondents in this writ petition since they were also put on notice that the select list is liable to be revised in accordance with the result of the said original petition. Further, Ext. P3 select list having been expressly made subject to the result of O.P.No. 16430/99, any further promotion, seniority list etc., would also be subject to the result of that original petition. In the above circumstances, I am not inclined to accept the contention of non- joinder raised by the 3rd respondent. 9. For the same reason, I do not find any merit in the contention raised by the Public Service Commission also. The Public Service Commission does not dispute the contention raised by the petitioner W.P.C. No. 11636/2005. -: 9 :- that the petitioner became eligible for promotion to the post of Section Officer ahead of the 3rd respondent. It is also not disputed before me that the petitioner was not so promoted only because of Ext. P2 clarification issued by the Government of Kerala. Further, when the 3rd respondent himself challenged the promotion of the petitioner notwithstanding Ext. P2, and got an interim order to the effect that no promotion shall be made except in accordance with Ext. P2 clarification, the 3rd respondent and the Public Service Commission cannot be heard to contend that because the petitioner had not sought promotion as Section Officer at the appropriate time, the petitioner cannot now contend that she should be promoted notionally in preference to the 3rd respondent. The Public Service Commission cannot now also take the contention that the note in Ext. P3 to the effect that the select list is subject to the result of O.P.No. 16430/99 is of no consequence in respect of the claim of the petitioner for notional promotion in preference to the 3rd respondent. They themselves have incorporated the said note in Ext. P3 and they are bound by the same. If they are bound by the same, as and when O.P.No. 16430/1999 and the writ appeal arising therefrom have been dismissed, they are bound to review Ext. P3 select in accordance with that decision. When there was an interim order in that original petition prohibiting promotion except in accordance with Ext. P2 herein, the petitioner could not have sought such promotion unless and until that stay was vacated or the original petition was dismissed. The petitioner can sit back with the firm belief that since Ext. P3 select list was made subject to the result of the original petition, as and when that original petition was dismissed, the DPC would on its own, review Ext. P3 in accordance with that decision. That benefit cannot now be denied to the petitioner, especially when she was prosecuting her claim all along before the Public Service Commission. W.P.C. No. 11636/2005. -: 10 :- 10. The contention of the 3rd respondent on the basis of his subsequent promotion as Higher Grade Section Officer (even if there is such a post) and Higher Grade Under Secretary, also cannot be countenanced in so far as the promotion to the post of Section Officer itself is provisional and subject to the result of O.P.No. 16430/1999, which has been expressly made so by the Public Service Commission themselves in the select list itself. Further, those promotions were made pending this writ petition. In fact, the Public Service Commission themselves, on their own, reviewed Ext. P3 as is clear from Ext. P5 order, whereby the petitioner has been promoted as Section Officer with the note that the seniority of the petitioner would be fixed later. The question of fixation of petitioner's seniority would arise only if Ext. P3 select list is provisional. Therefore, having made the petitioner to believe that her seniority in the cadre of Section Officer would be decided later, the Public Service Commission or the 3rd respondent herein cannot now contend that since the petitioner has not cared to challenge the subsequent promotions of the 3rd respondent, the petitioner cannot now validly challenge the seniority position. In fact, the petitioner had all along been keeping her claim alive by filing representations, which the Public Service Commission was bound to consider, since in Ext. P5, they had held out a promise to the petitioner that her seniority in the cadre of Section Officer would be fixed later and did not. The Public Service Commission has no case that an order fixing the seniority as held out in Ext. P5 has been passed by the Public Service Commission at any time. Further, when the 3rd respondent was promoted as Under Secretary, the petitioner had immediately filed Ext. P10. In Ext. P10, the petitioner has specifically stated that no select list is seen published and communicated for such promotion and that Ext. P10 may be considered as her representation under Rule 28 of the W.P.C. No. 11636/2005. -: 11 :- K.S. and S.S.R. Strangely, the Public Service Commission has not chosen to challenge the said averments in Ext. P10 and in the writ petition and to produce a select list, if it was really published. As far as the judgment in W.A. No. 919/2000 is concerned, that judgment was rendered based on the 'sit back' theory which has been accepted by courts in service jurisprudence. Here, there is no question of sit back at any time because promotion of 3rd respondent has all along been provisional and subject to the result of O.P.No. 16430/1999. Further, the petitioner was constantly challenging the seniority position at every stage and her claim was alive all along, ever since the dismissal of O.P.No. 16430/1999 and the writ appeal against the judgment in that original petition. As such, I do not find any merit whatsoever in the contentions of the Public Service Commission and the 3rd respondent. When it is admitted that the turn of the petitioner for promotion as Section Officer had arisen ahead of the 3rd respondent and the promotion of the 3rd respondent had been made subject to the result of O.P.No. 16430/1999, the Public Service Commission was bound to review Ext. P3 and further promotions of the 3rd respondent once the original petition and the writ appeal arising therefrom were dismissed. The contention of the counsel for the Public Service Commission that since the petitioner was pursuing only her claim for promotion as Personal Assistant and therefore she cannot at the same time claim promotion as Section Officer also does not find favour with me. Nothing prevents the petitioner from pursuing her claim for promotion to two different posts for both of which she is eligible. As soon as she got her claim for promotion as Section Officer settled by this Court, she withdrew her other claim by withdrawing O.P.No. 2019/1999. Since there is no dispute as to the eligibility of the petitioner to be promoted in preference to the 3rd respondent, the petitioner is entitled to seniority in the cadre of W.P.C. No. 11636/2005. -: 12 :- Section Officer above the 3rd respondent and consequently, the petitioner should have been notionally promoted as Section Officer ahead of the 3rd respondent. As a necessary consequence, the seniority as between the petitioner and the 3rd respondent and the further promotions of the 3rd respondent contrary to such seniority are also liable to be reviewed. There would be a declaration to that effect. Consequently, the Public Service Commission is bound to review the seniority as between the petitioner and the 3rd respondent and all further promotions of the 3rd respondent, and the petitioner should be given such promotion as well as seniority in all subsequent promotions ahead of the 3rd respondent, if, otherwise the petitioner is fit for such promotion. Therefore, the Departmental Promotion Committee shall review all further promotions accordingly. The entire process as directed above shall be taken up and completed within