IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 15TH JULY 2008 / 24TH ASHADHA 1930 WA.No. 1803 of 2005(A) -------------------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.31921/2003 Dated 20/07/2005 .................... APPELLANTS/ PETITIONERS: ----------------------------------------- 1. P. RAMADASAN ACHARI, U.D. CLERK, OFFICE OF THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM. 2. P.M. KHAMARBAN, U.D. CLERK, OFFICE OF THE DY.DIRECTOR OF EDUCATION, ERNAKULAM. 3. V. SANATHANAN NAIR, LDC (HIGHER GRADE) OFFICE OF THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM. 4. P. NIRMAL KUMAR, U.D. CLERK, OFFICE OF THE DPI, THIRUVANANTHAPURAM. 5. K. SOMARAJAN, U.D. CLERK (HR.GRADE) ASSISTANT EDUCATIONAL OFFICE, KOLLAM. 6. C. RAJENDRAN PILLAI, L.D. CLERK (HR. GRADE) SCERT, POOJAPPURA, THIRUVANANTHAPURAM. BY ADV. SRI.N.SUKUMARAN SRI.S.SHYAM SRI.N.K.KARNIS RESPONDENTS/RESPONDENTS --------------------------------------------- 1. STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVT.SECRETARIAT, THIRUVANANTHAPURAM. W.A. NO.1803/2005 2. THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM. 3. T. VIJAYALEKSHMI, U.D. CLERK, OFFICE OF THE A.E.O., MAVELIKKARA P.O., ALAPPUZHA DISTRICT. * ADDL. R4 AND R5 ARE IMPLEADED ADDL. R4. C.P.ABDUSSAMED, U.D. CLERK, OFFICE OF THE DEPUTY DIRECTOR OF EDUCATION, MALAPPURAM. ADDL. R5. KURUVILLA ABRAHAM, U.D. CLERK, OFFICE OF THE ASSISTANT EDUCATIONAL OFFICER, KONDOTTY, MALAPPURAM. * ADDL. R4 AND R5 ARE IMPLEADED AS PER ORDER DATED 15/07/2008 IN I.A. NO.94/2007. BY SR. GOVERNMENT PLEADER SRI.BENNY GERVACIS - R1&2 ADV. SRI.R.RAJASEKHARAN PILLAI SRI.AUGUSTINE JOSEPH - ADDL.R4, 5 SRI.K.S.ROCKEY - ADDL.R4, 5 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 26/06/2008, ALONG WITH WA NO. 2020 OF 2005, THE COURT ON 15/07/2008 DELIVERED THE FOLLOWING: ORDER ON I.A. NO.2665/2005 IN W.A. NO.1803/2005 DISMISSED 15/07/2008 SD/- J.B.KOSHY, JUDGE SD/- P.N.RAVINDRAN, JUDGE // TRUE COPY // Rs/ J.B. Koshy & P.N.Ravindran, JJ. -------------------------------------- W.A. No. 1803 & 2020 of 2005 --------------------------------------- Dated this the 15th day of July, 2008 Judgment Koshy,J. Writ petitioners entered service during the period 1983. While they were working as Lower Division Clerks in the General Education Department, they passed departmental tests and qualified for promotion on 25.11.1986. Their seniors including third respondent passed the obligatory test only on 7.7.1987. According to the petitioners, they became qualified before their seniors qualified to be promoted and there were 80 unfilled vacancies in the post of Upper Division Clerks as on 6.7.1987, but, they were filled up by promoting third respondent and others from 1.8.1987. It is their contention that they ought to have been promoted in the vacancies of U.D. Clerks that occurred on or before 6.7.1987. According to the Government, there were no vacancies to accommodate the petitioners on or before 6.7.1987. By judgment in W.P. (C) No.22918 of 2003, Ext.P13 representation was directed to be disposed of and Ext.P20 was passed. It is the case of the petitioners that as per Ext.P18 there were a total of 141 vacancies as on W.A.Nos.1803 & 2020/2005 2 1.1.1986, but, in Ext.P20, it is clearly stated that it was a mistake which was subsequently corrected. Assuming that there were 80 vacancies, 80 persons were promoted, but, out of the above, 17 persons were demoted as can be seen from Ext.P22 and they were re-promoted subsequently as can be seen from Ext.P23 and all the 80 persons were seniors to the petitioners and they were qualified on their respective dates. As per the Service Rules, ratio between LD Clerks and UD Clerks is 1:1. Cadre strength of the department on 16.9.1985 was fixed as 1777 and it is seen from the statement filed that the department was maintaining the above cadre strength. From Annexure R1 produced along with counter affidavit filed by the second respondent dated 10th December, 2007 the matter is explained by the Government. Appellants have no case that any of their juniors were promoted before they were promoted. They have also no case that their seniors were promoted before they acquired the necessary qualification for promotion or that those who got qualified subsequent to them were promoted. All the earlier promotions effected were of seniors and they were promoted only when they were qualified. The number of U.D. Clerks in the department from 1.1.1986 to 6.7.1987 was 1917, more than the cadre strength of 1777 and, therefore, there was no vacancy prior to W.A.Nos.1803 & 2020/2005 3 6.7.1987. Seniors including third respondent were qualified on 7.7.1987. There is no meaning for the contention that vacancies of U.D.Clerks upto 6.7.1987 should have been filled up by the petitioners who passed the test earlier to their seniors when vacancies arose. When vacancies arose due to promotions from U.D. Clerks or due to retirement as on 7.7.1987, promotions were effected from the seniors who are qualified with effect from 1.8.1987. From the vacancy position demonstrated in the pleadings, it is very clear that there was no vacancy to accommodate the petitioners on or before 6.7.1987. None of the juniors of the petitioner were promoted earlier to them. None of the seniors without qualifications were also promoted to the post of U.D. Clerks. We fully agree with the reasoning of the learned single Judge. Hence, we are not reiterating all the reasonings again. On 1.8.1987 when vacancies were filled up, third respondent and others who were seniors to the petitioners were also qualified and they were promoted. Subsequently, petitioners were also promoted. Petitioners and respondents had got several promotion subsequently also. Third respondent has already retired from service. A change in the promotions made in 1987 and change in seniority list will upset the applecart creating innumerable problems. W.A.Nos.1803 & 2020/2005 4 In these circumstances, we are of the view that the learned single Judge was right in dismissing the writ petitions. Both appeals are dismissed. J.B.Koshy Judge P.N.Ravindran Judge vaa W.A.Nos.1803 & 2020/2005 5 J.B. KOSHY AND P.N.RAVINDRAN,JJ. ------------------------------------- W.A. Nos.1803 and 2020/2008 ------------------------------------- Judgment Dated: 15th July, 2008