IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 26TH FEBRUARY 2009 / 7TH PHALGUNA 1930 WP(C).No. 9610 of 2008(R) -------------------------------------- PETITIONER(S): ----------------------- 1. GOPALASWAMI S. HEAD CLERK, ZILLA ZAINIK WELFARE OFFICE CIVIL STATION, KOLLAM -13 2. AJITHKUMAR. Y U.D.C. DIIRECTORATE OF SAINIK WELFARE VIKAS BHAVAN, THIRUVANANTHAPURAM -33 BY ADVS.MR.N.NANDAKUMARA MENON, SENIOR ADVOCATE MR.P.K.MANOJKUMAR SMT.SUSHYA RAJAN RESPONDENT(S): -------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL ADMINISTRATION (SAINIK WELFARE) DEPARTMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF SAINIK WELFARE VIKAS BHAVAN, THIRUVANANTHAPURAM-33 GOVERNMENT PLEADER MR.ANTONY MUKKATH FOR R1 & R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.9610/2008 APPENDIX PETITIONERS EXHIBITS P1:- COPY OF THE SPECIAL RULES G.O.(P) NO.457/92/GAD DT. 7.11.92 ISSUED BY THE GOVERNMENT. P2:- COPY OF THE REPRESENTATION DT. 17.12.98 SUBMITTED BY THE PRASANNAN PILLAI G., TO THE SECRETARY TO GOVERNMENT. P3:- COPY OF THE JUDGMENT DT. 21.2.2000 IN OP. NO.5344/00 PASSED BY THE HONOURABLE HIGH COURT OF KERALA AT ERNAKULAM. P4:- COPY OF THE COMMUNICATION NO.49867/SWB/GAD DT. 25.1.01 ISSUED BY THE GOVERNMENT . P5:- COPY OF THE DRAFT AMENDMENT OF THE SPECIAL RULES ISSUED BY THE GOVERNMENT G.O.(P) NO.NIL/GAD. DT. NIL. P6:- COPY OF THE COMMUNICATION NO.50005/SW3/01/GAD DT. 24.9.04 ISSUED BY THE GOVERNMENT. P7:- COPY OF THE REPRESENTATION DT. 24.12.06 SUBMITTED BY THE EMPLOYEES OF THE SAINIK DEPARTMENT BEFORE THE HONOURABLE CHIEF MINISTER , GOVERNMENT OF KERALA. P8:- COPY OF THE JUDGMENT DT. 29.8.05 IN WPC. NO.20541/05 (U) PASSED BY THE HONOURABLE HIGH COURT OF KERALA AT ERNAKULAM. P9:- COPY OF THE ORDER SAO 2 DT. 19.8.83 ISSUED BY THE 2ND RESPONDENT. P10:- COPY OF THE LETTER NO.1032/ESTT-1/2004/DSW DT. 2.8.04 SENT BY THE 2ND RESPONDENT TO THE GOVERNMENT. /TRUE COPY/ P.A. TO JUDGE T.R. Ramachandran Nair, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.9610/2008-R ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 26th day of February, 2009 J U D G M E N T The petitioner is now working as Head Clerk in the Zila Sainik Welfare Office, Kollam and the second petitioner is working as Upper Division Clerk in the Directorate of Sainik Welfare, Vikas Bhavan, Thiruvananthapuram. The existing Special Rules governing the appointment regarding certain posts is produced as Ext.P1. The post of Personal Assistant and Manager, Directorate of Sainik Welfare/Assistant Secretary, Zila Sainik Welfare Office comes within the category (3). The method of appointment as also the qualification is prescribed therein. It is prescribed that in the case of Junior Superintendent/Head Clerk, total service for a period of not less than 7 years in the Department of which atleast three years shall be in the categories of junior Superintendent and Head Clerk reckoned together. 2. This stipulation had difficulty in getting sufficient number of persons who have got the experience to be appointed in the higher posts. The said factor lead to the unfilling of the vacancies for a number of years. Therefore, by Ext.P2 representation of one G.Prasannan Pillai, a request was made to the Government to make suitable amendments to the rules. Since W.P.(C) No.9610/2008 -:2:- nothing was done in this regard, he approached this Court by filing O.P.No.5344/2000 and this Court by Ext.P3 judgment directed the Government to take a decision in the matter. By Ext.P4 communication dated 25/1/2001, the Government directed the second respondent to give his proposal for amending Special Rules. Accordingly, draft amendment to Special Rules was prepared, which is evidenced as Ext.P5. Thereafter, The second respondent was directed by Ext.P6 to offer his remarks/revision to the draft amendment to the Special Rules. Since the matter was being delayed further, some other persons filed W.P.(C).No.20541/2005 which resulted in Ext.P8 judgment. Inspite of the directions contained in Ext.P8 judgment further steps were not progressing. Therefore, this writ petition has been filed challenging Ext.P1 and for an appropriate direction to the Government to bring out the amendment within a specific time limit. 3. The respondents have filed a counter affidavit as well as an additional counter affidavit. The fact that there is an anomaly is an admitted one. Therefore, the issue is as to why the amendment proposed is being delayed. This is explained in paragraph Nos.4 and 5 of the additional affidavit. It is stated therein that in January 2009, General Administration (Sainik Welfare) Department made the draft Amendment Rules, 2009 and sent it to the Personnel and Administrative Reforms Department for scrutiny. After completing the scrutiny, P & A Reforms Department W.P.(C) No.9610/2008 -:3:- returned the file for submitting to the Law Department. After getting it back from the Law Department, the file has to be sent to the Kerala Public Service Commission and thereafter to the Sub Committee, only after completing these procedures appropriate amendments can be brought into force. 4. The scenario as revealed from the above shows that for the last seven years, the matter has been pending and was in contemplation of the Government. For one reason or the other, the matter is getting delayed. This has resulted in non consideration of the petitioners and others for promotion to the Post of Assistant Zila Zainik Welfare Officer/Assistant Director and many of them have retired from service also. Therefore, the further procedural formalities have to be completed with expedition as otherwise the same will cause acute hardship to the persons in service. The first petitioner is stated to be retiring in November 2009. In that view of the matter also I feel that a time frame has to be fixed for finalising the same. 5. Therefore, the amendments as proposed should be finalised and the notification will be issued within a period of six months from today. The writ petition is disposed of as above. No costs. (T.R. Ramachandran Nair, Judge.) ms