IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 23RD SEPTEMBER 2008 / 1ST ASWINA 1930 OP.No. 9154 of 1999(M) ---------------------- PETITIONER(S): --------------- P.K. SURESH KUMAR, U.D. CLERK, OFFICE OF THE DIRECTOR OF INSURANCE MEDICAL SERVICE (VIGILANCE), THRISSUR. BY ADV. SRI.P.P.JNANASEKHARAN RESPONDENT(S): ---------------- 1. STATE OF KERALA, REP. BY SECRETARY, DEPT. OF LABOUR, SECRETARIAT, TRIVANDRUM. 2. THE DIRECTOR OF INSURANCE MEDICAL SERVICE, TRIVANDRUM. 3. THE ADMINISTRATIVE OFFICER, DIRECTORATE OF INSURANCE MEDICAL SERVICE, TRIVANDRUM. 4. K. VIJAYALAKSHMI, U.D. CLERK, OFFICE OF THE DIRECTOR OF INSURANCE MEDICAL SERVICE, THIRUVANANTHAPURAM. 5. K.J. JESSY, U.D. CLERK, E.S.I. DISPENSARY, THODUPUZHA. 6. G. MADHUSOODANAN PILLAI, U.D. CLERK, E.S.I. DISPENSARY, PUNALUR. 7. K.K. JAYAKUMARAN, U.D. CLERK, E.S.I. DIEPENSARY, ALUR, TRICHUR. 8. V.D. JOSEPH, U.D. CLERK, E.S.I. HOSPITAL, VADAVATHOOR, KOTTAYAM. ADV. SRI.M.R.GOPALAKRISHNAN NAIR GOVERNMENT PLEADER SRI. M.R. SABU FOR R1 TO R3 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 23/09/2008, THE COURT ON THE SAME DAY, DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: O.P.NO. 9154/1999. --------------------------------------------------------------- EXT.P1 TRUE COPY OF ORDER DT. 29-3-1993. EXT.P2 CERTIFICATE DT. 23-6-1992. EXT.P3 CERTIFICATE DT. 23-6-1992. EXT.P4 ORDER DT. 16-4-1993. EXT.P5 ORDER DT. 20-2-1998. EXT.P6 CIRCULAR DT. 6-5-1998. EXT.P7 LETTER DT. 22-6-1998. EXT.P8 REPRESENTATION DT. 1-12-1998. EXT.P9 NOTICE DT. 10-8-1994. EXT.P10 RELEVANT PAGES OF SENIORITY LIST OF L.D. CLERKS. EXT.P11 DO. OF U.D. CLERKS. EXT.P12 ORDER DT. 27-3-1994. EXT.P13 ORDER DT. 22-1-1993. EXT.P14 ORDER DT. 3-1-1995. EXT.P15 ORDER DT. 31-3-1998. EXT.P16 ORDER DT. 2-8-1995. EXT.P17 ORDER DT. 19-8-1998. RESPONDENTS' EXHIBITS: -------------------------------------- EXT.R6(a) ORDER DT. 14-6-1988. EXT.R6(b) ORDER DT. 2-6-1989. EXT.R6(c) ORDER DT. 39-1-1991. EXT.R6(d) ORDER DT. 30-3-1991. EXT.R6(e) CERTIFICATE DT. 18-12-1992. EXT.R6(f) CERTIFICATE DT. 18-12-1992. EXT.R6(g) OBJECTIONS DT. 27-8-1994. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= O.P. No. 9154 of 1999 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 23rd September, 2008. J U D G M E N T The dispute in this original petition relates to inter se seniority between the petitioner on the one hand and respondents 4 to 8 on the other. However, since in the counter affidavit submitted by respondents 1 to 3, it is stated that respondents 5, 7 and 8 are liable to be reverted, the petitioner now submits that his contention needs to be considered only against respondents 4 and 6. 2. The petitioner was advised by the Public Service Commission for appointment as L.D. Clerk in the Department of Insurance Medical Service on 5-1-1991. Pursuant to the same, the petitioner joined duty on 8-2-1991. The 4th respondent joined as L.D. Clerk on 13-11-1989 and the 6th respondent joined on 19-11-1987. Later on, a seniority list of L.D. Clerk was published, which is Ext. P10. In the same, the petitioner was rank no. 279, 4th respondent was at 296 and the 6th respondent at 196. It appears that respondents 4 and 6 were promoted as U.D. Clerks with effect from 9-1-1992 and 4-7-1992 respectively. But the petitioner was promoted as U.D. Clerk with effect from 15-3-1993. The petitioner knew that respondents 4 and 6 were promoted earlier to him only when the petitioner received Ext. P6 circular dated 6-5-1998 issued by the Director, whereby the seniority list of ministerial staff of the department was finalised. Immediately thereafter, the petitioner submitted Ext. P8 representation challenging those promotions. The petitioner submits that the 4th respondent obtained inter-district transfer on request on 17-6-1991 and the 6th respondent obtained inter-district transfer on request on 13-3-1991, which was subsequent to the petitioner joining duty on 8-2-1991. Therefore, by virtue of the proviso to Rule 27 of Part II of K.S and S.S.R, respondents 4 and 6 have to be ranked junior to the petitioner in the cadre of L.D. Clerk and therefore the petitioner O.P.. No. 9154/1999 -: 2 :- is entitled to earlier promotion than respondents 4 and 6, is the contention raised. The petitioner further submits that by Ext. P9, a notice was issued by the 3rd respondent to respondents 4 and 6 and others directing them to show cause as to why their promotion should not be reviewed because of the fact their inter-district transfer and consequent loss of seniority. But, nothing transpired thereafter. It is under the above circumstances the petitioner has approached this Court with this original petition . 3. Essentially, what the petitioner seeks now is restoration of seniority above respondents 4 to 8. However, since the petitioner has already succeeded as against respondents 5, 7 and 8 in view of the statement in the counter affidavit, it is not now necessary to consider the contentions against respondents 5, 7 and 8. That leaves the contentions against respondents 4 and 6. 4. The 4th respondent has not chosen to enter appearance and contest the matter. The 6th respondent has filed a counter affidavit in which he disputes that he had applied for inter-district transfer. On the other hand, the contention of the 6th respondent is that he had been subjected to repeated inter-district transfers without any application made in that respect. Respondents 1 to 3 have also filed a counter affidavit. 5. I have considered the contentions in detail. 6. In so far as the 4th respondent has not chosen to appear and contest the matter, I have to assume that the contentions raised by the petitioner as against the 4th respondent are correct. Since the 4th respondent obtained inter-district transfer on request on 17-6-1991 which is also mentioned in Ext. P10, and the petitioner joined service on 8-2-1991, applying the proviso to Rule 27 of K.S and S.S.R, the petitioner is entitled to get seniority over the 4th respondent. However, the case against the 6th respondent is different. The 6th respondent categorically disputes that he has been given inter-district O.P.. No. 9154/1999 -: 3 :- transfer on request. That being so, it is for the petitioner and respondents 1 to 3 to state and prove as to whether the inter-district transfer of the 6th respondent was on request. No proof whatsoever in respect of the same has been made available in this case. Further, admittedly, in the seniority list of L.D. Clerks, the 6th respondent is shown as rank no. 196 as against rank no. 279 of the petitioner. Although, in Ext. P10 as against the 4th respondent, it is specifically mentioned that her inter-district transfer was on request, there is no such endorsement in Ext. P10 as against the 6th respondent's name. Since the petitioner would get seniority over the 6th respondent only if the 6th respondent obtained inter-district transfer on request and since there is no evidence on record to show that the inter-district transfer of the 6th respondent was on request, I do not think that the petitioner can claim seniority over the 6th respondent in so far as the 6th respondent entered service on 19-11-1987 and the petitioner joined service only on 8-2-1991. As such, the claim of the petitioner for seniority over the 6th respondent is rejected. Since respondents 4, 5, 7 and 8 do not contest the original petition and since respondents 1 to 3 have already recognised seniority of the petitioner over respondents 5, 7 and 8 as stated in their counter affidavit, it is clear that the petitioner is senior to respondents 4, 5, 7 and 8. Accordingly, there would be a direction to respondents 1 to 3 to revise the seniority of the petitioner accordingly. Orders in this regard shall be passed within a period of three months from the date of receipt of a copy of this judgment. The original petition is disposed of as above. Sd/- S. Siri Jagan, Judge. Tds/