IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 14TH OCTOBER 2008 / 22ND ASWINA 1930 WP(C).No. 22385 of 2008(M) -------------------------------------- PETITIONER(S): PETITIONER ------------------------- V.CHANDRAMOHAN NAIR, SELECTION GRADE TYPIST, OFFICE OF THE ASSISTANT EXCISE COMMISSIONER, KSBC (HQ), THIRUVANANTHAPURAM. BY ADV. SRI.S.RAMESH BABU RESPONDENT(S): RESPONDENTS ----------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, EAXES (F) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE COMMISSIONER OF EXCISE, THIRUVANANTHAPURAM. 3. KERALA PUBLIC SERVICE COMMISSION REPRESENTED BY ITS SECRETARY, PATTOM, THIRUVANANTHAPURAM. GOVERNMENT PLEADER SMT.ANU SIVARAMAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.22385/2008 APPENDIX PETITIONERS EXHIBITS P1:- COPY OF THE COMMUNICATION OF THE 3RD RESPONDENT TO THE PETITIONER DT. 16.9.90. P2:- COPY OF THE LETTER DT. 25.5.88. P3:- COPY OF THE COMMUNICATION DT. 3.11.89. P4:- COPY OF THE JUDGMENT DT. 13.10.2000 IN OP. 7484/93. P5:- COPY OF THE REPORT DT. 2.4.01. P6:- COPY OF THE REPORT DT. 1.10.01. P7:- COPY OF THE REPORT DT. 19.12.01. P8:- COPY OF THE ORDER DT. 5.1.02. P9:- COPY OF THE JUDGMENT DT. 2.6.06 IN OP. NO.5985/02. P10:- COPY OF THE REPRESENTATION OF THE PETITIONERDT. 25.4.07. P11:- COPY OF THE COMMUNICATION DT. 28.2.08. P12:- COPY OF THE G.O.(P) NO.113/08/TD DT. 4.6.08. /TRUE COPY/ P.A. TO JUDGE tss P.N.RAVINDRAN, J. ====================================== W.P.(C)No. 22385 of 2008 ====================================== Dated this the 14th day of October 2008 JUDGMENT Heard the learned counsel appearing on either side. 2. The petitioner is a Selection Grade Typist in the Excise Department. He entered service as Lower Division Typist in the year 1984. In the Excise Department, after the issue of G.O.(MS) No.141/68/RD dated 29.2.1968, post of Lower Division Clerk is not in existence. Therefore, though G.O.(MS) No.301/68/PD dated 26.9.1968 permits appointment by transfer of L.D.Typist as L.D.Clerk, it could not be given effect to in the Excise Department. The petitioner had earlier moved this Court by filing O.P.No.7484 of 1993. By Ext.P4 judgment delivered on 13.10.2000, this Court directed as follows: “Admittedly Ext.P1 Government Order enables category change. The petitioners have also passed the eligibility tests. The only hurdle in getting the category change is that there is no post of L.D.Clerk in the Excise Department. It is stated that the duties of the L.D.Clerks are being discharged by the Preventive Officers in the Excise Department. The Public Service Commission has suggested the Government to amend the rules to provide for category change to L.D.Typists to some equivalent posts in the said Department so as to enable the persons like the petitioners to get category change. The stand taken by the Government is that in the absence of the post of L.D.Clerk, the category change cannot be allowed. Regarding the category change to the posts of Preventive Officers it is stated that this will create W.P.(C)22385 of 2008 2 difficulties in the administration of the Department. Having regard to the object with which Ext.P1 Government Order is issued and the fact that the post L.D.Clerk is available in various other departments, it was only proper for the Government to find out some other method by which the persons like the petitioners would also have got a category change. The stand taken by the Government in the Statement does not appear to be consistent with the Scheme and further that will amount to discrimination also. In the above circumstances, I direct the first respondent Government to consider the matter in the light of Ext.P6 advice of the third respondent and find out a solution in the matter. While doing so, the first respondent has to consider Exts.P7 to P12 orders also. A decision in the matter will be taken within a period of four months from the date of receipt of a copy of this judgment.” 3. Pursuant to Ext.P4 judgment, the Excise Commissioner addressed the Government in Exts.P5, P6 and P7 letters suggesting an amendment to the special rules. The Government considered the issue and by Ext.P8 letter dated 5.1.2002 informed the petitioner that his request for category change cannot be considered. The petitioner again moved this Court by filing O.P.No.5985 of 2002. By Ext.P9 judgment delivered on 2.6.2006, this Court disposed of the said Original Petition reserving liberty with the petitioner to move the Government for redressel of his grievances. The petitioner thereafter submitted Ext.P10 representation on which the Government initiated action W.P.(C)22385 of 2008 3 and directed the Commissioner of Excise in Ext.P11 letter dated 28.2.2008 to furnish a draft notification incorporating necessary amendments to the special rules so as to enable category change of Typists as Clerks. The grievance voiced by the petitioner is that though the special rules were amended by Ext.P12 notification dated 4.6.2008, the amendment suggested in Ext.P11 was not carried out and that the Government have adopted a lukewarm attitude in taking further steps pursuant to Ext.P11. The petitioner has in this writ petition prayed for a writ in the nature of mandamus commanding the respondents to expedite the steps taken as per Ext.P11. 4. A counter affidavit has been filed on behalf of the first respondent contending inter-alia that amendment of the special rules even in relation to a single item is a time consuming process and that a time limit cannot therefore be set for amending the rules. The petitioner has filed a reply affidavit and produced Ext.P12 to show that after Ext.P11 letter was issued, the special rules were amended in respect of certain other matters and that Ext.P12 would show that the explanation offered for the delay in finalising the amendment proposed in Ext.P11 is only a ruse to further delay the amendment to the special rules. 5. I have considered the submissions made at the Bar by the W.P.(C)22385 of 2008 4 learned counsel appearing on either side. It is evident from Ext.P11 that the Government is seriously considering an amendment to the special rules so as to enable category change of Typists. The Excise Commissioner has in Exts.P5, P6 and P7 recommended such an amendment. This Court had as early as on 13.10.2000 observed in Ext.P4 judgment that if L.D.Typists in the Excise Department alone are denied category change as L.D.Clerk it will amount to discrimination. More than 8 years have passed after Ext.P4 judgment was delivered by this Court. In these circumstances, I dispose of the writ petition with a direction to the State Government to take a final decision in the matter within four months from the date of receipt of a copy of this judgment. The State Government shall bear in mind the observations made by this Court in Ext.P4 judgment and the recommendations made by the Commissioner of Excise in Exts.P5, P6 and P7 letters while taking a decision in the matter. P.N.RAVINDRAN, JUDGE css/