IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 16TH NOVEMBER 2011 / 25TH KARTHIKA 1933 WP(C).No. 12277 of 2007(J) ---------------------------------- PETITIONER(S): ------------------- ABDUL SALIM P.N, CLERICAL ASSISTANT, GENERAL EDUCATION(OS) DEPARTMENT, ADMINISTRATIVE SECRETARIAT, GOVT. SECRETARIAT ANNEX, THIRUVANANTHAPURAM. BY ADVS. SRI.SANTHOSH MATHEW SRI.SATHISH NINAN RESPONDENT(S): -------------------- 1. STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE PRINCIPAL SECRETARY TO GOVERNMENT, GENERAL ADMINISTRATION(A) DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 3. THE PRINCIPAL SECRETARY TO GOVERNMENT, P&ARD, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 4. SMT. D.RAJESWARI, ASSISTANT, GENERAL ADMINISTRATION(PARLIAMENTARY AFFAIRS) DEPARTMENT, ADMINISTRATIVE SECRETARIAT, THIRUVANANTHAPURAM. VPV WPCNO.12277/2007 *ADDITIONAL R5 IMPLEADED *R5: ROSAMMA ISSAC, PEON HOME (E) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM *IS IMPLEADED AS ADDL. R5 AS PER ORDER DATED 12/7/07 IN IA 9335/07. R1-R3 BY GOVERNMENT PLEADER SRI NOBLE MATHEW R4 BY ADV. SRI.S.NARAYANAN NAIR ADDL. R5 BY SRI.KRB.KAIMAL, SENIOR ADVOCATE ADV. SRI.B.UNNIKRISHNA KAIMAL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VPV WPCNO.12277/2007 APPENDIX PETITIONER'S EXHIBITS P1: PHOTOCOPY OF THE EXTRACT PORTION OF THE SENIORITY LIST OF PEONS OF THE ADMINISTRATIVE SECRETARIAT. P2: PHOTOCOPY OF THE REPRESENTATION DATED 9-11-2004 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT. P3: PHOTOCOPY OF THE REPRESENTATION DATED 29-12-2004 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT. P4: PHOTOCOPY OF THE REPRESENTATION DATED 1-2-2006 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT. P5: PHOTOCOPY OF THE CIRCULAR NO.8757/S.A2/2006/GAD DATED 4-2- 2006 ISSUED BY THE 2ND RESPONDENT. P6: PHOTOCOPY OF THE APPLICATION DATED 16-2-2006 SUBMITTED BY THE PETITIONER. P7: PHOTOCOPY OF THE G.O.(MS)NO.261/2006/GAD DATED 3-10-2006 ISSUED BY THE 2ND RESPONDENT. P8: PHOTOCOPY OF THE I.A.NO.124/07 IN W.P(C)NO.26562/06 FILED BY THE RESPONDENTS BEFORE THIS HONOURABLE COURT AND ORDER DATED 11-1-2007 OF THIS HONOURABLE COURT. P9: PHOTOCOPY OF THE I.A.NO. /07 IN W.P(C)NO.26562/06 FILED BY THE RESPONDENTS BEFORE THIS HONOURABLE COURT. P10: PHOTOCOPY OF THE ORDER DATED 9-3-2007 ISSUED BY THE 2ND RESPONDENT. P11: PHOTOCOPY OF THE LETTER NO.16333/S.C.2/07/GAD DATED 28-3-07 ALONG WITH CONNECTED DOCUMENTS. P12: COPY OF THE REPLY RECEIVED FROM THE PUBLIC INFORMATION OFFICER DATED 16-5-2007 ALONG WITH THE REQUISITION FORM. P13: COPY OF THE NOTES SENT BY THE PRINCIPAL SECRETARY DATED 17- 10-2007. VPV WPCNO.12277/2007 RESPONDENT'S EXHIBITS: R5(A): COPY OF THE GOVT. ORDER G.O(MS)NO.31/06/GAD DATED 25- 1-2006. R5(B): COPY OF THE GOVT. ORDER G.O(MS)NO.181/05/GAD DATED 4- 6-2005. R5(C): COPY OF THE ORDER DATED 23-2-2006 OF THIS HONOURABLE COURT IN WP(C)NO.27639/2006. /TRUE COPY/ P.A. TO JUDGE VPV S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W.P(C) No. 12277 of 2007 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 16th day of November, 2011. J U D G M E N T The petitioner joined service as a Peon in the Administrative Secretariat of the Government of Kerala. on 19.4.1996. The 4th respondent was initially appointed as Peon in the Office of the Advocate General, Ernakulam. She requested for inter-departmental transfer, which was allowed and consequentially she joined the Administrative Secretariat on 3.12.1996. The Government published Ext.P1 seniority list of persons dated 19.12.2003. But the petitioner received the same only in October, 2004. On 9.11.2004, the petitioner submitted a representation before the 1st respondent against the seniority assigned to the 4th respondent above the petitioner insofar as in the seniority list, the petitioner is sl. no. 272, whereas the 4th respondent is assigned sl. no. 271. Despite repeated reminders, the petitioner's representation, which, according to the petitioner, was a statutory representation under Rule 27B of the Kerala State and Subordinate Service Rules, was not disposed of. In the meanwhile, on 3.10.2006, by Ext.P7 order, the 4th respondent was promoted to the post of Assistant, overlooking the seniority of the petitioner. The petitioner filed W.P(C) No. 26562/2006, which was disposed of directing the 2nd respondent to consider Exts. P2 and P3, after issuing notice to the petitioner and the 4th respondent and pass appropriate orders. After obtaining extension of time to comply with the directions in the judgment, the 2nd respondent passed Ext.P10 order rejecting the W.P(C) No. 12277 of 2007 -: 2 :- petitioner's representation under Rule 27B on the ground that it has not been submitted within the time prescribed. The petitioner is challenging the same, seeking the following reliefs: “i. Call for the records leading to Ext.P10 and issue a writ in the nature of certiorari quash the same; ii. issue a writ of mandamus or any other appropriate writ, order or direction, declaring that the petitioner is entitled to be assigned seniority no. 271 above the 4th respondent in Ext.P1 and grant all consequential benefits to the petitioner; iii. Call for the records leading to Ext.P7 and issue a writ in the nature of certiorari quash the same in so far as it promote the 4th respondent as Assistant on Rs.7990-12930 in the Administrative Secretariat overlooking the legitimate claim of the petitioner.” 2. According to the petitioner, the petitioner is entitled to succeed both on the question of limitation as well as on merits. The petitioner points out that it is settled law that on inter-departmental transfer, the transferee joins the latter department as the junior most. The 4th respondent came to the administrative secretariat on inter- departmental transfer only on 3.12.1996, whereas the petitioner joined the administrative secretariat on 19.4.1996 and therefore the 4th respondent has to be junior to the petitioner in the administrative secretariat is the contention. 3. As far as the question of limitation is concerned, the petitioner would contend that as is clear from Ext.P2 reply received by the petitioner, pursuant to a request under the W.P(C) No. 12277 of 2007 -: 3 :- Right to Information Act, Ext.P1 seniority list was printed and handed over to the department only on 1.10.2004. Therefore, the petitioner's representation on 9.11.2004 is well within time insofar as under Rule 27B of Part II of KS and SSR, the time stipulated is 6 months from the date of receipt of the copy of the order or date of publication of the order in the Kerala Gazette, whichever is later. The petitioner having received copy of Ext.P1 seniority list only in October, 2004, the petition under Rule 27B filed on 9.11.2004 is well within the time prescribed under Rule 27B, is the contention raised. Therefore, according to the petitioner, he is entitled to both seniority over the 4th respondent as also promotion as Assistant ahead of the 4th respondent, is the contention of the petitioner. 4. A counter affidavit has been filed by the 2nd respondent, wherein, it is admitted that Ext.P1 seniority list was received by the petitioner only in October, 2004. Ext.P12 produced by the petitioner along with the reply affidavit is not controverted by the 2nd respondent. So, it is abundantly clear that Ext.P1 seniority list was published only after 1.10.2004, since, as is evident from Ext.P12, the printed copies of Ext.P1 seniority list was handed over to the department only on 1.10.2004. Therefore, the petition under Rule 27B filed by the petitioner on 9.11.2004 is well within the time prescribed under the Rule. Consequently, the rejection of the petitioner's petition by Ext.P10 order on the ground that the same is belated, is patently W.P(C) No. 12277 of 2007 -: 4 :- unsustainable and liable to be quashed. 5. In Ext.P10 order itself, the Government themselves accept the fact that insofar as the 4th respondent was transferred to Administrative Secretariat on inter- departmental transfer on 3.12.1996 and the petitioner joined on 19.4.1996, the petitioner is senior to the 4th respondent in the service of the Administrative Secretariat. The only ground on which the claim of the petitioner was rejected is limitation. Now that I have held that there is no limitation, the finding in Ext.P10 to the effect that the petitioner is entitled to seniority over the 4th respondent has to be implemented. Since the petitioner is senior to the 4th respondent the promotion given to the 4th respondent ahead of the petitioner as Assistant is also unsustainable. In view of the above findings, this writ petition is disposed of as follows: Ext.P7 promotion order and Ext.P10 order to the extent the same rejects the claim of the petitioner in seniority on the ground of limitation, are quashed. It is declared that the petitioner is senior to the 4th respondent as Peon in the Administrative Secretariat. Since the promotion as Assistant is purely by seniority from among peons, the petitioner is entitled to be promoted as Assistant with effect from the date when the 4th respondent has bee promoted. However, if subsequent vacancies have arisen in the post of Assistant, it would be open to the respondents to accommodate the 4th respondent in that vacancy with W.P(C) No. 12277 of 2007 -: 5 :- effect from the date of arising of that vacancy. Orders in implementation of the above directions shall be passed and arrears of salary paid to the petitioner, as expeditiously as possible, at any rate, within 2 months from the date of receipt of a copy of this judgment. Sd/- S. Siri Jagan, Judge. Tds/