IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 21ST DECEMBER 2009 / 30TH AGRAHAYANA 1931 WP(C).No. 12449 of 2004(F) -------------------------------------- PETITIONERS: --------------------- 1. G. JOHN THARAKAN, JUNIOR SUPERINTENDENT, KERALA HEADLOAD WORKERS WELFARE BOARD, ALATHUR LOCAL COMITTEE, ALATHUR, PALAKKAD DIST. 2. S. USHA, JUNIOR SUPERINTENDENT, KERALA HEADLOAD WORKERS WELFARE BOARD, OTTAPPALAM, PALAKKAD DIST. BY ADVS. MR.ELVIN PETER P.J, MR.S.RAMESH, MR.P.N.SANTHOSH, MR.S.D.ASOKAN, MR.NAVEEN.T. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, LABOUR (H) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE CHIEF EXECUTIVE, KERALA HEADLOAD WORKERS WELFARE BOARD, ERNAKULAM. 3. P.R. MURALEEDHARN NAIR, ACCOUNTS OFFICER KERALA HEADLOAD WORKERS WELFARE BOARD, QUILANDY COMMITTE, VADAKARA, KOZHIKODE DIST. 4. K. MOHAN ROY, ACCOUNTS OFFICER, KERALA HEADLOAD WORKERS WELFARE BOARD, THRIPPUNITHURA COMITTEE, THRIPPUNITHURA, ERNAKULAM DIST. W.P.(C). NO.12449/2004-F: 5. S. SHEELA, ACCOUNTS OFFICER, KERALA HEADLOAD WORKERS WELFARE BOARD, THRISSUR COMMITTE, THRISSUR. 6. B. MURUKAN, ACCOUNTS OFFICER, KERALA HEADLOAD WORKERS WELFARE BOARD, KOZHIKODE COMMITTEE, KOZHIKODE. 7. T. LILLY AMMA, ACCOUNTS OFFICER, KERALA HEADLOAD WORKERS WELFARE BOARD, PALAKKAD COMMITTEE, PALAKKAD. 8. K.LEELAMMA, JUNIOR SUPERINTENDENT, KERALA HEADLOAD WORKERS WELFARE BOARD, KARUNAGAPPALLY COMMITTEE, KARUNAGAPPALLY, KOLLAM DIST. 9. S. MINI. JUNIOR SUPERINTENDENT, KERALA HEADLOAD WORKERS WELFARE BOARD, BOARD OFFICE, ERNAKULAM. 10. M.I. JABEEN, JUNIOR SUPERINTENDENT, KERALA HEADLOAD WORKERS WELFARE BOARD, THRISSUR COMMITTEE, THRISSUR. 11. R. SUPRIYA, JUNIOR SUPERINTENDENT, KERALA HEADLOAD WORKERS WELFARE BOARD, ATTINGAL COMMITTEE, ATTINGAL, THIRUVANANTHAPURAM DIST. 12. R. SREELATHA, JUNIOR SUPERINTENDENT, KERALA HEADLOAD WORKERS WELFARE BOARD, THIRUVALLA COMMITTEE, THIRUVALLA, PATHANAMTHITTA DIST. 13. MOHANACHANDRAN NAIR, JUNIOR SUPERINTENDENT, KERALA HEADLOAD WORKERS WELFARE BOARD, THODUPUZHA COMMITTEE, THODUPUZHA, IDUKKI DIST. 14. P.P. SHYLA, JUNIOR SUPERINTENDENT, KERALA HEADLOAD WORKERS WELFARE BOARD, MOOVATTUPUZHA COMMITTEE, MOOVATTUPUZHA. 15. SUJATHA VISWANATHAN, JUNIOR SUPERINTENDENT, KERALA HEADLOAD WORKERS WELFARE BOARD, ERNAKULAM COMMITTEE, ERNAKULAM. *16. T. JAYAKUMAR, JUNIOR SUPERINTENDENT, KERALA HEADLOAD WORKERS WELFARE BOARD, CHALAKKUDY COMMITTEE, CHALAKKUDY, THRISSUR DIST. *NAME OF R.16 IS CORRECTED AS `T. JAYAKUMARI' AS PER ORDER DATED 09/07/04 IN I.A. NO.7030/04. W.P.(C). NO.12449/2004-F: 17. K.V. SUBASH BABU, JUNIOR SUPERINTENDENT, KERALA HEADLOAD WORKERS WELFARE BOARD, PUNALUR COMMITTEE, PUNALUR, KOLLAM DIST. 18. G. SOBANABAI, JUNIOR SUPERINTENDENT, KERALA HEADLOAD WORKERS WELFARE BOARD, CHALAKKUDY COMMITTEE, CHALAKKUDY, THRISSUR DIST. 19. Y. JOSE, JUNIOR SUPERINTENDENT, KERALA HEADLOAD WORKERS WELFARE BOARD, PALARIVATTOM COMMITTEE, PALARIVATTOM, ERNAKULAM DIST. 20. G. SHIRLY, JUNIOR SUPERINTENDENT, KERALA HEADLOAD WORKERS WELFARE BOARD, THRISSUR COMMITTEE, THRISSUR. 21. P. JAYARAJ, JUNIOR SUPERINTENDENT, KERALA HEADLOAD WORKERS WELFARE BOARD, BOARD OFFICE, ERNAKULAM. 22. C.G. ABRAHAM, JUNIOR SUPERINTENDENT, KERALA HEADLOAD WORKERS WELFARE BOARD, ALAPPUZHA COMMITTEE, ALAPPUZHA. 23. A. SUJANA, JUNIOR SUPERINTENDENT, KERALA HEADLOAD WORKERS WELFARE BOARD, KOLLAM COMMITTEE, KOLLAM. 24. V. SINDHU, JUNIOR SUPERINTENDENT, KERALA HEADLOAD WORKERS WELFARE BOARD, BOARD OFFICE, ERNAKULAM. R1 BY GOVT. PLEADER MR. P. NANDAKUMAR, R2 BY MR.KOSHY GEORGE, SC, KHLWWB, ADV.MR.A.V.RAMAKRISHNA PANICKER, ADV.MR.R.SATHISH KUMAR, ADV.MR.RENIL ANTO KANDAMKULATHY,, R3 TO R16 & R17 TO R20 & R23 BY ADV. MR.M.V.THAMBAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.12449/2004-F: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE ORDER, G.O. RT. NO.1313/94/LBR. DT. 04/06/1994 ISSUED BY THE GOVERNMENT. EXT.P.2: COPY OF THE NOTIFICATION NO. D.E.1 (1) 6923/95/E.W. DT. 25TH MARCH, 1996 PUBLISHED BY THE K.P.S.C. EXT.P.3: COPY OF THE CERTIFICATE DT. 18/04/1996 ISSUED BY THE PSC TO THE P.1. EXT.P.4: COPY OF THE ORDER, G.O. RT. NO.815/96/LBR. DT. 19/03/1996 ISSUED BY THE GOVERNMENT. EXT.P.5: COPY OF THE ORDER NO. E1-11843/95. DTD. 27/03/1996 ISSUED BY THE R.2. EXT.P.6: COPY OF THE ORDER NO. E1-11843/95 DTD. 18/02/1997 ISSUED BY THE R.2. EXT.P.7: COPY OF THE NOTIFICATION NO. E1-18468/2003 DTD. 20/08/2003 ALONG WITH THE PROVISIONAL SENIORITY LIST OF JUNIOR SUPERINTENDENTS ISSUED BY THE R.2. EXT.P.8: COPY OF THE ORDER NO. E5-26481/2002 (2). DT. 19/09/2003 ISSUED BY THE R.2. EXT.P.9: COPY OF THE JUDGMENT DT. 19TH DAY OF SEPT. 2003 IN O.P. NO. 10485/1998 OF THIS HON'BLE COURT. EXT.P.10: COPY OF THE ORDER NO. E1-18468/2003 DT. 27/02/2004 ISSUED BY THE R.2. EXT.P.11: COPY OF THE FINAL SENIORITY LIST OF JUNIOR SUPERINTENDENTS PROMOTED DURING THE PERIOD FROM 19/03/96 TO 10/07/2003. EXT.P.12: COPY OF THE JUDGMENT DT. 23RD NOVEMBER, 1998 IN O.P. NO. 1921/1995 OF THIS HON'BLE COURT. EXT.P.13: COPY OF THE JUDGMENT DTD. 14/07/2008 IN W.A. NO.1280/2008 OF THIS HON. COURT. RESPONDENTS' EXHIBIT: EXT.R17(A): COPY OF THE ORDER IN CMP.NO.25258/95 IN O.P. NO. 1921/95 DTD. 16/01/1996. //TRUE COPY// P.S. TO JUDGE. Prv. ANTONY DOMINIC, J. -------------------------------------------------- W.P.(C) NO.12449 OF 2004 (F) -------------------------------------------------- Dated this the 21st day of December, 2009 J U D G M E N T The prayers sought for in this writ petition are to quash Exts.P7 and P11 to the extent it assigned seniority to respondents 3 to 24, Ext.P8 to the extent it promote respondents 3 to 7 to the category as Accounts Officer and Ext.P10 order rejecting the request of the petitioners to assign seniority to them in the category of Junior Superintendent above respondents 3 to 24. Consequential reliefs are also sought for. 2. Petitioners were appointed as LDCs under the 2nd respondent on 4.6.1985. Respondents 3 to 23 are juniors to petitioner No.1 and respondents 7 to 23 are juniors to the 2nd petitioner. By Ext.P1 order dated 4.6.1992, petitioners and respondents were promoted as UDCs. In that order, petitioners are at Sl.Nos.7 and 17 respectively. Next post to which they could aspire for promotion is Junior Superintendent and Ext.P2 dated 25.3.1996 shows that petitioners successfully passed the departmental test prescribed as one of the qualifications for the WPC.No.12449 /04 :2 : said post. 3. Much earlier to the petitioners became qualified, 39 posts of Junior Superintendents were created under the 2nd respondent as per the orders issued by the Government on 11.7.1986, 29.10.1990, 11.10.1993 and 10.8.1995. None of the employees in the establishment were qualified for the post of Junior Superintendent and therefore the post was filled up by deputation from outside. 4. During, 1995, O.P.No.1921/95 was filed by the some of the Upper Division Clerks of the 2nd respondent, against continuing deputation of Junior Superintendents and contending that as they had become qualified in the meanwhile, they should be promoted to the post of Junior Superintendent. In that Original petition Ext.R17 (a) interim order was passed by this court on 16.1.1996 directing to promote qualified Upper Division Clerks reverting the deputationists. In pursuance to that order, on 19.3.1996, Ext.P4 order was passed by the first respondent promoting respondents 3 to 23 as Junior Superintendents. In pursuance to Ext.P4, Ext.P5 order was issued by the 2nd respondent on 27.3.1996, terminating the deputation of the employees working as Junior Superintendents WPC.No.12449 /04 :3 : and reverting them to their parent departments. 5. Case of the petitioners is that though the post of junior Superintendent was created earlier and promotions were also ordered by Ext.P5, it was only on 27.31996, when by Ext.P5 the deputationists were terminated, vacancies were arose in the category of Junior Superintendent. According to them as on 25.3.1996, the petitioners became test qualified and they being senior to respondents 3 to 23, should have been considered for promotion in preference to the respondents 3 to 23. It is stated that although they were promoted by Ext.P6 order dated 18.2.1997, with effect from 10.10.1996, they are entitled to be given retrospective promotion in preference to the aforesaid respondents. Reckoning their seniority in the category of Junior Superintendent, on the basis of promotion actua given to them Ext.P7 provisional seniority list was published, which was finalized by Ext.P11. Therefore, their claim for earlier promotion was rejected by Ext.P10. It is in these circumstances the writ petition is filed. 6. As already stated, the case of the petitioners is that the vacancy in the category of Junior Superintendent arose only on 27.3.1996 when the deputations were terminated and WPC.No.12449 /04 :4 : deputationists were reverted to their parent department. According to them, prior to that, they became qualified on 25.3.1996 and being seniors, they ought to have been preferred in the matter of promotion. Counsel also placed reliance on the Full Bench judgment in 1981 KLT 458 to contend that eligibility for promotion should be reckoned with reference to the date of occurrence of the vacancy which according to him is 27.3.1996. 7. Having considered this case in the light of the counter affidavit filed by respondents 1 and 2, I am not inclined to agree with the learned counsel for the petitioner. As already noticed, there were 39 posts in the category of Junior Superintendents, 10 posts were created in 1986, 5 posts in 1990, 7 posts in 1992 and 11 posts in 1994. None, within the establishment, was qualified at the time when the post were created and it was therefore that deputation was ordered. Therefore if the date of occurrence of vacancy is to be reckoned strictly, the date of occurrence of the vacancy is the date on which the posts were created. On that date neither the petitioners nor the respondents were qualified. It is the admitted case that the respondents became test qualified much earlier to the petitioners and were qualified as on 19.3.1996, when WPC.No.12449 /04 :5 : by Ext.P3 order promotion was effected. As on that date petitioners were not qualified. Therefore, neither on the date of occurrence of the vacancy nor on the date when the promotions were effected petitioners were qualified. It is also my view that, the contentions that the vacancies arose on 27.3.1996 is also incorrect. This is for the reason that vacancies had already arisen when the posts were created. The date 27.3.2006 cannot be reckoned as the date of occurrence of vacancy. Evidently therefore the juniors having qualified earlier than the petitioners, were entitled to be promoted on 19.3.1996 and if so, their promotion cannot be stated to be faulty. Therefore there is no merit in the case of the petitioner that they ought to have been considered in preference to respondents 3 to 24. Therefore the seniority list or Ext.P10 order of rejection of the claim of the petitioners cannot be faulted. Writ petition fails and is dismissed. (ANTONY DOMINIC) JUDGE vi/ WPC.No.12449 /04 :6 :