IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 25TH MAY 2011 / 4TH JYAISHTA 1933 WA.No. 542 of 2010 -------------------- AGAINST THE JUDGEMENT IN WPC.11409/2007 DATED 22/05/2009 .................... APPELLANTS/RESPONDENTS 1 & W IN THE WPC: ----------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE PRINCIPAL SECRETARY TO GOVERNMENT, GENERAL ADMINSTRATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. BY SENIOR GOVERNMENT PLEADER, SRI.BENNY GERVACIS RESPONDENTS/PETITIONERS & RESPONDENTS 3 & 4 IN THE WPC: ------------------------------------------------------------------------- 1. K.RADHAKRISHNAN SECTION OFFICER, GENERAL ADMINSTRATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. S.SREEVALSALAN, SELECTION GRADE ASSISTANT, P & R (AR III) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 3. SIMJI JOSEPH, SELECTION GRADE ASSISTANT P&R (AR III) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 4. P.R.PADMANABHAN, SELECTION GRADE ASSISTANT, REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 5. M.JOYKUTTY, SECTION OFFICER, GENERAL ADMINSTRATION(HOUSING) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. WA.No. 542 of 2010 6. S.KESHAB CHAND, SELECTION GRADE ASSISTANT NORKA (A) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 7. SMT. K.N.SUJATHA, SECTION OFFICER, HOME (B) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 8. SMT. JAYALEKHADEVI SECTION OFFICER, OFFICE OF THE ADVISOR, INTER STATE WATER COMMISSION CELL, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. ADDL. 9. FINNY ZACHARIAH,S/O.ZACHARIAH, UNDER SECRETARY TO GOVERNMENT ON DEPUTATION AS ACCOUNTS OFFICER, KERALA STATE SCIENCE & TECHNOLOGY MUSEUM, THIRUVANANTHAPURAM. (IMPLEADED AS PER ORDER DATED 23.07.2010 IN I.A. NO.554/2010 IN THIS WRIT APPEAL). R1 TO R6 ADV. SRI.MURALI PURUSHOTHAMAN SRI.DEVAN RAMACHANDRAN ADDL.R9 BY ADV. SRI.WILSON URMESE THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 25/05/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.Chelameswar, C.J. & Antony Dominic, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.A.No. 542 OF 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 25th day of May, 2011 JUDGMENT Antony Dominic, J. The official respondents in W.P.(C) No.11409 of 2007 are the appellants. The writ petition was filed by the respondents, seeking consideration of Ext.P4 representation in the light of Ext.P3. According to the writ petitioners they are employees of the General Administration Department of the Government Secretariat and that they were being discriminated in the matter of seniority as compared to their counterparts in the Finance Department. Considering the rival contentions of the parties, the learned Judge disposed of the writ petition referring to Exts.P2 and P3 and the operative portion of the judgment reads as follows: “5. I am of opinion that Exts.P2 and P3 do not go hand-in-hand. If the ratio has to be given retrospective effect from 01.03.1992, then persons who were not qualified as on 01.03.1992 cannot be allowed to hold the post of Assistant Grade I as on that date. Therefore, necessarily, they have to be pushed down in the seniority list as against persons who possessed the qualifications as on 01.03.1992, if they have in WA No. 542 of 2010 -:2:- fact qualifications prescribed for the post. The justification given in paragraph 3 of the counter affidavit cannot be sustained. Simply because only some Assistants in the Finance Department are affected, the Government cannot pass contradictory orders. After having passed a contradictory order in the Finance Department, identically situated Assistants in the General Administrative Department cannot be denied the same benefit, which would amount to discrimination. In the above circumstances, it is clear that the situation has been created by the Government themselves by passing contradictory orders by Exts.P2 and P3. Therefore, it is only appropriate that the Government themselves solve the issue after hearing all affected persons including those who have been given seniority above the petitioners in view of Ext.P2 order. Accordingly, the Government shall take a fresh decision in the matter after hearing all concerned, as expeditiously as possible, at any rate, within four months from the date of receipt of a copy of this judgment. The writ petition is disposed of as above.” 2. In this appeal the main complaint of the appellants is that the learned Judge has found that the writ petitioners have been discriminated. We have considered the contention and gone through the findings in the judgment and we are unable to uphold the said contention. In our view, the learned Judge was expressing only a prima facie opinion and has not entered into WA No. 542 of 2010 -:3:- any conclusion or finding as contended by the appellants. It is on that basis, the learned Judge has directed the Government to take a fresh decision on the representation with notice to all concerned. In that view of the matter, we dispose of the writ appeal clarifying the position as above and directing to decide on the representation in the manner as directed in the judgment. Fresh decision shall be taken as above within four months of receipt of a copy of this judgment. J.Chelameswar, Chief Justice. Antony Dominic, Judge. ttb WA No. 542 of 2010 -:4:-