IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 3RD FEBRUARY 2010 / 14TH MAGHA 1931 WP(C).No. 37033 of 2004(H) ---------------------------------- PETITIONER(S): ------------------- K.J. VIRONI, CHIEF CASHIER, CASH SECTION, CENTRAL ACCOUNTS DEPARTMENT, COCHIN PORT TRUST, COCHIN-9. BY ADV. SRI.GEORGE THOMAS (MEVADA) RESPONDENT(S): --------------------- 1. THE CHAIRMAN, COCHIN PORT TRUST, COCHIN-9. 2. COCHIN PORT TRUST, REPRESENTED BY THE SECRETARY, COCHIN-9. 3. B. VIJAYAN, CASHIER, CENTRAL ACCOUNTS DEPARTMENT, COCHIN PORT TRUST, COCHIN-9. 4. CHIEF COMMISSIONER FOR PERSONS, WITH DISABILITIES, SAROJINI HOUSE-6, BHAGWAN DAS ROAD, NEW DELHI-01. R1&2 BY ADVS. SRI.E.K.NANDAKUMAR SRI.A.K.JAYASANKAR NAMBIAR SMT.PRIYA MAHESH SMT.PRIYA MANJOORAN R3 BY ADV. SRI.N.SUKUMARAN R4 BY ADVS. SRI.JOHN VARGHESE, ASSISTANT SG SRI.GEORGE JOSEPH, ADDL.CGSC THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs WP(C).No. 37033/2004(H) APPENDIX PETITIONER'S EXHIBITS: P: COPY OF CIRCULAR ISSUED BY THE 2ND RESPONDENT DATED 29/12/1999. P1: COPY OF ORDER ISSUED BY THE 2ND RESPONDENT DATED 21/02/2000. P2: COPY OF OFFICE MEMORANDUM NO.1/12/67-ESTT.(C), DATED 11/07/1968. P3: COPY OF THE SENIORITY LIST OF EMPLOYEES IN CASHIERS CADRE AS ON 01/03/2000. P4: COPY OF ORDER ISSUED BY THE 2ND RESPONDENT DATED11/04/01. P5: COPYC OF ORDER ISSUEDBY THE 2ND RESPONDENT DATED 24/04/2002. P6: COPY OF RECRUITMENT RULE FOR THE POST OF CHIEF CASHIER. P7: COPY COF ORDER ISSUED BY THE 2ND RESPONDENT DATED 01.01.02. P8: COPY OF REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 07/12/2002. P9: COPY OF JUDGMENT IN OP 38248/2002 DATED 19/12/2002. P10: COPY OF ORDER ISSUED BY THE 2ND RESPONDENT DATYED 04/11/03 P11: COPY OF ORDER ISSUED BY THE 4TH RESPONDENT DATED 22/03/04. P11(a):COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT 18/11/2004. P11(b):COPY OF THEPROCEEDINGS OF THE 4TH RESPONDENT DATED 09/12/2004. P12: COPY OF OFFICE MEMORANDUM NO.36035 DATED 18/02/1997. P13: COPY OF OFFICE MEMORANDUM NO.36012 DATED 29/08/1997 svs ...........2/-.... ...2... WP(C).No. 37033/2004(H) P14: COPY OF APPENDIX TO ANNEXURE III P15: COPY OF CIRCULAR NUMBER 69/NGE/98 DATED 21/12/1998 P16: COPY OF THE ORDER DATED 17/04/1999. RESPONDENT'S EXHIBITS: R3(a):COPY OF THE GOVT. OF INDIA DEPT. OF PER. AND TRG. O.M.NO.36035/7/95 (SCT) DATED 18/02/1997. R3(b):COPY OF THE REPLY SUBMITTED BY THE 3RD RESPONDENT HEREIN (PETITIONER) IN CASE NO.2825/2003/2531 OF THE CHIEF COMMISSIONERFOR PERSONS WITH DISABILITIES, NEW DELHI, DATED 29/01/2004. R3(c):COPY OF THE ORDER O.M. NO.36035 DATED 18/02/1997. /TRUE COPY/ P.A. TO JUDGE svs C.T. RAVIKUMAR, J. -------------------------------------------- W.P.(C). NO. 37033 OF 2004 -------------------------------------------- Dated this the 3rd day of February, 2010 JUDGMENT The petitioner and third respondent were the rival claimants for promotion to the post of Chief Cashier under the second respondent. The petitioner retired from the service of the second respondent on 31.12.2009 while holding the post of Chief Cashier and the third respondent retired from its service on 30.11.2009 while working as Cashier. In this Writ Petition, the petitioner seeks quashment of Exts.P11 and P11(b) and also for a declaration that promotion granted to her as per Exts.P5 and P7 are proper and valid. The further prayer of the petitioner is as follows:- “issue a writ of mandamus, compelling respondents 1 and 2 to strictly follow the instructions contained in para 5(1) of OM No.9/11/55-RPS dated 22.12.1959 and reaffirmed in OM number 20011/1/2001-Estt.(D) dated 21.01.2002, in the matter of drawing up select lists for granting promotions and fixing the relative seniority of the promotees in the higher cadre in the various departments in Cochin Port Trust”. 2. For a proper understanding and consideration of the rival claims of the petitioner and third respondent, their service particulars require reference. The petitioner joined the service of the second respondent on 17.12.1970 as Lower Division Clerk. She was promoted as Upper Division Clerk on 1.5.1986 and then as Senior Accountant on W.P.(C) NO.37033 of 2004 2 17.4.1990. The third respondent commenced his career under the second respondent as Lower Division Clerk on 2.6.1971. He became U.D.C on 1.4.1986. He was later promoted as an Accountant. While they were holding the said respective posts, as per Ext.P1 dated 29.12.1999, a new cadre of cashier was formed under the second respondent. In terms of Ext.P1, options were invited from those in the general cadre of the ministerial establishment. Subsequently, both of them were appointed as Deputy Cashiers on 21.2.2000. Thereafter, Ext.P3 seniority list of Deputy Cashiers was published. The petitioner was assigned the first rank and the third respondent was assigned the fourth rank in the said seniority list. 3. As per Ext.P4 dated 11.4.2001, the third respondent was promoted as Cashier. Since the said promotion was effected overlooking her seniority, as is evident from Ext.P3, the petitioner had submitted a representation. Subsequently, taking into account the grievances raised by the petitioner and finding it as genuine, Ext.P5 order dated 24.4.2001 was passed by the second respondent whereby the petitioner was promoted to the post of cashier with effect from 31.3.2001. Ext.P5 would reveal that the said order of promotion was issued in favour of the petitioner in supersession of Ext.P4. In this context, it is apposite to note that the third W.P.(C) NO.37033 of 2004 3 respondent who was then holding the second post of cashier was reverted from the post of cashier to the post of Deputy Cashier and subsequently, he was promoted as Cashier only on 6.6.2001 consequent to Ext.P5. Admittedly, the third respondent did not challenge the order by which he was reverted from the post of Cashier as Deputy Cashier. Be that as it may, it is a fact that the petitioner was promoted as Cashier with effect from 31.3.2001. In fact, in the case of the third respondent, the subsequent promotion granted to him was initially against the leave vacancy and that was regularised only with effect from 1.7.2001. The next promotion post of Cashier is Chief Cashier and that is a post falling under Class II. Ext.P6 is the Recruitment Rules for promotion to the post of Chief Cashier under the second respondent. As per the same, the method of recruitment is by promotion and a candidate can be directly recruited only in the absence of persons in the category of Cashier carrying the scale of pay of Rs.2750- 5690. As per Ext.P7 dated 1.1.2002, the petitioner was promoted as Chief Cashier in the scale of pay of Rs.8600-14600 and was posted as such in Central Accounts Department with effect from 1.1.2002. 4. While the petitioner was holding the post of Chief Cashier, she came to know that the third respondent had moved the authorities for W.P.(C) NO.37033 of 2004 4 unseating her from the post of Chief Cashier. Without waiting for an action in that regard from the respondents, at the instance of the third respondent, the petitioner had submitted a representation before the first respondent. In that representation, she requested the official respondents that orders detrimental to her shall not be passed without hearing her. Thereafter, she approached this Court by filing O.P.No.38240 of 2002. The said O.P was disposed of as per Ext.P9 judgment. The second respondent considered the rival claims of the petitioner and the third respondent for promotion to the post of Chief Cashier and passed Ext.P10. In fact, as regards the petitioner, the question to be considered was whether her promotion as per Ext.P7 was valid or not. It is evident from EXt.P10 dated 4.11.2003 that the second respondent rejected the claim of the third respondent. As per Ext.P10, the second respondent found that the examination of the representation of the third respondent revealed absolute absence of any necessity to review the decision of the Departmental Promotion Committee held on 20.12.2001. That decision was taken into account by the DPC after considering 50% limit of reservation in one selection. Accordingly, it was held as per Ext.P10:- “Against two posts of Cashiers, selected in the review W.P.(C) NO.37033 of 2004 5 DPC, one post was reserved for SC and the other post was for UR candidate. Therefore the review DPC held on 20.12.2001 is in order. Hence it is informed that his above request is not admissible.” 5. It is thus evident from Ext.P10 that the claims of the petitioner and the third respondent were finally settled. Feeling aggrieved by Ext.P10, the third respondent has approached the fourth respondent by filing case No.2825/03/4865. Ext.P11 is the order dated 22.3.2004 passed thereon. It is evident from Ext.P11 that the second respondent herein alone was made a party therein. As per Ext.P11, it was found that the cancellation of the promotion of the third respondent to the post of Cashier was not in order. In the light of the said finding, the second respondent was directed to take appropriate action. Ext.P11 was challenged by the petitioner before this Court in O.P.12153/2004. As noticed hereinbefore, that order was passed without the petitioner in the party array. This Court set aside Ext.P11 and thereafter remitted the matter for fresh consideration after affording opportunity of being heard to the petitioner and the third respondent. In compliance with that, the fourth respondent considered the rival claims of the petitioner and the third respondent and passed Ext.P11(b) order on 9.12.2004. It is mainly challenging Ext.P11(b) that this Writ Petition has W.P.(C) NO.37033 of 2004 6 been filed by the petitioner. The tenor of the complaint preferred by the third respondent before the fourth respondent would reveal that his claim was founded on the ground that he was wrongly reverted from the post of Cashier. 6. Admittedly, the third respondent was promoted ignoring the seniority of the petitioner in the category of Deputy Cashier as per Ext.P4 order dated 11.4.2001. Thereupon, the petitioner had taken up her grievance regarding overlooking of seniority and that was duly considered by the respondents and Ext.P5 order dated 12.4.2001 was passed. As per Ext.P5 dated 24.4.2001, the petitioner was ordered to be promoted with effect from 31.3.2001 and, virtually, Ext.P4 order was thus superseded by Ext.P5 order. It is also an admitted fact that the third respondent who was then holding the post of Cashier was reverted from that post and posted as Deputy Cashier. He was subsequently promoted as Cashier only on 6.6.2001 and that too, against a leave vacancy. He was subsequently regularised in the post only with effect from 1.7.2001. There cannot be any doubt that the third respondent had accepted the said order of promotion with effect from 1.7.2001 without any demur. He had never challenged it within a reasonable time before any authority and therefore, the petitioner W.P.(C) NO.37033 of 2004 7 who was promoted as Cashier based on Ext.P5 continued to enjoy the seniority in the said category. In other words, since Ext.P5, the petitioner continued to be senior to the third respondent in the category of Cashier. It was the said settled seniority that was virtually unsettled as per Ext.P11(b). The third respondent who accepted the reversion as also the subsequent promotion without protest entirely challenged the settled seniority on the ground that one post of Cashier was virtually reserved for physically handicapped persons and therefore, he was entitled for promotion to the post of Cashier ahead of the petitioner. A scanning of Ext.P11(b) would reveal that it was actually considered by the fourth respondent for deciding the inter se seniority between the petitioner and the third respondent in the category of Cashier. Of course, the question decided was the entitlement of the third respondent for promotion to the post of Cashier as against the reserved vacancies. The fact that cadre of Cashier was a newly formed one created only as per Ext.P1 dated 29.12.1999 and that till such time no such cadre was available in the service of the fourth respondent was not at all taken into consideration. The order creating the said cadre admittedly did not provide reservation in the said post. Subsequent to Ext.P1 order, no specific order has been issued by the second respondent reserving a post in W.P.(C) NO.37033 of 2004 8 the cadre of Cashier for the physically handicapped persons. The claim of the third respondent for reservation on the ground of his being a physically handicapped person is founded on Ext.R3(a). Ext.R3(a) is the copy of the Government of India Department of Personnel And Training O.M.NO.36035/7/95/(SCT) dated 18.2.1997. The entitlement of the petitioner for promotion to the category of Cashier based on Ext.R3(a) was also considered by the fourth respondent. Paragraph 17 of Ext.P11(b) carries a discussion regarding the entitlement of the petitioner based on Ext.R3(a). It is held therein that Section 36 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 provides for carrying forward of reserved vacancies for persons with disabilities. It was also found therein that considering the applicability of the principle of horizontal reservation in respect of persons with disabilities in the matter of promotions there cannot be any doubt that they are entitled for such promotions. Reservation register for the post of Cashier was taken into consideration. It indicated the point that it reserved for persons with disabilities on open category. Therefore, according to the fourth respondent, there was a reservation vacancy for physically handicapped persons in the category of Cashier available in the year 2000. Therefore, W.P.(C) NO.37033 of 2004 9 when the DPC met on 31.3.2001, for the purpose of filling up of two vacancies in the post of Cashier, the third respondent was rightly considered and appointed. Ultimately as per Ext.P11(b), the fourth respondent found that the promotion of the third respondent as Cashier should not have been cancelled. Thus a scanning of Ext.P11(b) would reveal that the entitlement of the petitioner to sit back and enjoy the benefit of settled seniority, a recognised principle in service jurisprudence was not taken into consideration at all by the fourth respondent. Admittedly, the third respondent was promoted as per Ext.P4 and subsequently he was reverted and the petitioner was promoted as Cashier with effect from 31.3.2001 in supersession of Ext.P4 whereby the third respondent was promoted to the said post. The third respondent did not challenge the said order. That apart, without any demur, he had accepted the subsequent promotion granted to him in the category of Cashier against the leave vacancy. Moreover, he was regularised in the post thereafter, only with effect from 1.7.2001. Those basic orders were not challenged by the third respondent. It is a fact that Ext.P10 order was passed based on the submission made by the official respondents before this Court in O.P.No.38240/2002. Those facts were also not considered while passing W.P.(C) NO.37033 of 2004 10 Ext.P11(b). In short, there cannot be any doubt at all that inter se seniority between the petitioner and the third respondent can be decided only reckoning the dates on which they entered in the cadre based on regular promotion as Cashiers. As stated earlier, the date of promotion of the petitioner to the said category was 31.2.2001 and the third respondent was regularised in the post only with effect from 1.7.2001. That decision continued till 2004. The 3rd respondent did not challenge the settled seniority of the petitioner. He has raised only the question of his entitlement for a vacancy reserved for physically handicapped category in the cadre of Cashier that was found in favour of the third respondent. His entitlement based on such reservation cannot be a reason for unsettling the settled seniority between himself and the petitioner. The settled seniority between the petitioner and the third respondent could have been unsettled, if at all it can be unsettled only in a proper proceedings challenging inter se seniority between the petitioner and the third respondent. In fact, I am fortified in my view by a decision of the apex court in Bimlesh Tanwar v. State of Haryana reported in 2003(5) SCC 604 . Paragraph 40 of the judgment assumes relevance in the context of the contentions raised in this Writ Petition. It reads thus: W.P.(C) NO.37033 of 2004 11 “An affirmative action in terms of Article 16(4) of the Constitution is meant for providing a representation of a class of citizenry who are socially or economically backward. Article 16 of the Constitution of India is applicable in the case of an appointment. It does not speak of fixation of seniority. Seniority is, thus, not to be fixed in terms of the roster points. If that is done, the rule of affirmative action would be extended which would strictly not be in consonance of the constitutional schemes. We are of the opinion that the decision in P.S Ghalant does not lay down a good law.” Thus it is evident that while deciding the entitlement of the third respondent for promotion against the reservation vacancy, it should not have resulted in unsettling of the settled inter se seniority between the petitioner and the third respondent. Seniority is not be fixed in terms of roster points. In this case, as held earlier, the petitioner who had entered in the cadre of Cashier on 31.3.2001 cannot be pushed down in the seniority and placed below the third respondent who was promoted to the said category and was regularised in that cadre only with effect from 1.7.2001 especially, without a direct challenge against the seniority. It is reckoning the said admitted seniority that the petitioner was subsequently given promotion to the post of Chief Cashier as per Ext.P7 dated 1.1.2002. The fact remains that the third respondent did not challenge the said promotion as well, granted to the petitioner as per Ext.P7 dated 1.1.2002. Admittedly, the third respondent W.P.(C) NO.37033 of 2004 12 did not challenge Ext.P5 and P7. Therefore, I am of the considered view that the petitioner is entitled to all benefits flowing from Ext.P5 and P7 and said orders cannot be interfered with in view of Ext.P11(b). Ext.P11(b) in so far as it affects the seniority of the petitioner over the third respondent and the promotions granted to the petitioner as per Exts.P5 and P7 cannot be sustained at all. To that extent, Ext.P11(b) is liable to be interfered with. Accordingly, to that extent Ext.P11(b) is set aside. Consequently, it is declared that the promotions granted to the petitioner as per Ext.P5 and P7 are proper and valid and he is entitled to all the consequential benefits flowing from Ext.P5 and P7. Accordingly, the Writ Petition is allowed. (C.T. RAVIKUMAR, JUDGE) spc W.P.(C) NO.37033 of 2004 13 C.T. RAVIKUMAR, J. CRL. M.C. NO. O R D E R 3rd June, 2009 W.P.(C) NO.37033 of 2004 14