IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 24TH SEPTEMBER 2010 / 2ND ASWINA 1932 WP(C).No. 2079 of 2010(H) ------------------------- PETITIONER: --------------- BIJUKUMAR, S/O.RAJAYARI, AGED 34 YEARS, KARUMALAKKALA, VADAKKUMMURI VEEDU, KANJIRAMKULAM.P.O, THIRUVANANTHAPURAM DISTRICT. BY ADV. SRI.RAJESH P.NAIR SRI.ROBIN JOSE RESPONDENT(S): --------------- 1. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY, PRINTING DEPARTMENT, SECRETARAIT, THIRUVANANTHAPURAM. 2. THE DIRECTOR, OFFICE OF THE DIRECTOR, PRINTING DEPARTMENT, GOVERNMENT CENTRAL PRESS, THIRUVANANTHAPURAM. 3. THE DEPUTY SUPERINTENDENT (GENERAL), GOVERNMENT CENTRAL PRESS, THIRUVANANTHAPURAM. 4. E.SUDHEENA, BINDER, GOVERNMENT CENTRAL PRESS, THIRUVANANTHAPURAM. 5. A.K.BINDU, 2ND GRADE PACKER, GOVERNMENT CENTRAL PRESS, THIRUVANANTHAPURAM. 6. M.P.MADHU, 2ND GRADE PACKER, OVERNMENT CENTRAL PRESS, THIRUVANANTHAPURAM. GOVERNMENT PLEADER SHRI SANDESH RAJA FOR R1-R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(C)NO.2079/10 PETITIONER'S EXTS: EXT.P1: TRUE COPY OF ORDER DT.3.5.2004 OF THE 2ND RESPONDENT INTIMATING THE PETITIONER ABOUT HIS APPOINTMENT. EXT.P2: TRUE COPY OF ORDER DT.10.6.04 ISSUED BY THE 3RD RESPONDENT. EXT.P3: TRUE COPY OF ORDER DT.5.1.07 OF THE 2ND RESPONDENT IN EXT.P2 PROCEEDINGS. EXT.P4: TRUE COPY OF NOTICE DT.28.12.06 ISSUED BY THE OFFICE OF THE 2ND RESPONDENT. EXT.P5: TRUE COPY OF REPRESENTATION SUBMITTED BY THE PETITIONER ALONG WITH CERTAIN OTHER SIMILARLY SITUATED PERSONS. EXT.P6: TRUE COPY OF REPLY DT.22.10.07 OF THE OFFICE OF THE 2ND RESPONDENT. EXT.P7: TRUE COPY OF ORDER DT.3.12.07 OF THE 2ND RESPONDENT. EXT.P8: TRUE COPY OF SENIORITY LIST DT.22.10.08 PUBLISHED BY THE OFFICE OF THE 2ND RESPONDENT. RESPONDENT'S EXT: EXT.R2(A): TRUE COPY OF G.O.(MS)NO.127/06/GAD DT.20.5.06. True copy T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.2079 of 2010-H - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 24th day of September, 2010. JUDGMENT The petitioner seeks to challenge the order granting promotion to respondents 4 to 6 as Packer Grade I. The petitioner has also been promoted subsequently, from 3.12.2007. 2. The petitioner entered service as evident from Exhibit P1, after getting appointment through the Public Service Commission. He joined duty on 7.6.2004 as Packer Grade II, and completed his probation on 7.6.2005. The grounds stated by the petitioner to oppose the promotion granted to respondents 4 to 6 are the following: 3. It is submitted that Exhibit P4 proceedings will show that respondents 4 to 6 were regularised in service as II Grade Packer only on 19.8.2005, which is after the declaration of probation of the petitioner. It is therefore submitted that actually the petitioner ought to have been promoted as per Exhibit P3. Apart from that, serial Nos.1 and 2 in Exhibit P1 who were W.P.(C)No.2079/10 -2- appointed along with the petitioner, have also been promoted as Packer Grade I as per Exhibit P3. The petitioner filed a representation as per Exhibit P5 seeking to restore his seniority and grant promotion which was disposed of as per Exhibit P6. By Exhibit P7, petitioner was granted promotion from 3.12.2007. 4. It is mentioned in Exhibit P6 that in terms of G.O.(MS) No.127/06/GAD, the promotions have been granted. Exhibit P8 is the combined seniority list published by the Department wherein the petitioner is arrayed as Sl.No.33. It is pointed out that based on his regularisation in service, etc. he ought to have been given a due place in the seniority list also. 5. Respondents 4 to 6 have not filed any counter affidavit and the 2nd respondent has filed a detailed counter affidavit. It is pointed out therein in paragraph No.6 that respondents 4, 5 and 6 were appointed as Packer Gr.II in the Printing Department under the scheme for giving employment to outstanding sports professionals provided as per G.O.(P)No.361/85/GAD dt.22.8.1985. They were appointed as per G.O.(MS) No.105/2001/GAD dt.17.3.2001 and they joined service on 5.4.2001, 2.4.2001 and 2.4.2001 respectively against the W.P.(C)No.2079/10 -3- supernumerary posts created. Their period of probation in the post was declared and completed with effect from 1.5.2002, 6.5.2002 and 30.7.2002 respectively. Subsequently, they were absorbed in regular posts with effect from 19.8.2005. They were promoted in terms of their seniority above that of the petitioner. The respondents are relying upon Exhibit R2(a) G.O. dated 20.5.2006 relating to appointment of outstanding sportsmen/women in public service and guidelines to be adopted for the said appointment. In paragraph No.8, it is provided that three years after the appointment in a supernumerary post, if a regular promotion vacancy or ratio promotion vacancy occurs in the Department, the sports persons will be the seniormost to be considered for promotion and if he is otherwise eligible, he shall have an option to be promoted against the said vacancy. Once promoted to a regular vacancy, the incumbent will have to attend office full time. Thereafter, participation in sports can only be against leave duly sanctioned. Accordingly, the seniority list was prepared. Therefore, the 2nd respondent contends that respondents 4, 5 and 6 were duly given promotion, evidently, on the basis of their date of entry in service earlier than the W.P.(C)No.2079/10 -4- petitioner. 6. The learned counsel for the petitioner submitted that the principles stated in Exhibit R2(a), especially in paragraph No.8, cannot be accepted on its face value. It is pointed out that appointment under Rule 9(a) of the KS & SSR, can only be treated as a temporary appointment. It is further pointed out that the method now adopted if accepted, then the persons who have been appointed through the PSC will be really prejudiced. 7. The facts detailed above show that the contesting respondents were appointed way back in 2001 and their probation was declared on 1.5.2002, 6.5.2002 and 30.7.2002 and were awaiting absorption in regular posts. The petitioner's appointment is at a later point of time, that is, in the year 2004. Therefore, going by the date of entry in service, they are having seniority. 8. Then, the further question is whether the method provided under Exhibit R2(a) really defeats the seniority etc. of persons like the petitioner who were appointed through the PSC. Exhibit R2(a) is not under challenge in this Writ Petition. Evidently, they were appointed in supernumerary posts and going W.P.(C)No.2079/10 -5- by the details with regard to such appointments also such supernumerary posts will be in operation until the incumbent reaches the age of 35 years or till he retires from active sports, whichever is earlier, as evident from paragraph No.2 of Exhibit R2(a). It is only after the said period is over, they will be accommodated against vacancies in the Department. This is evident from paragraph No.5. Paragraph No.6 shows that sports persons appointed in supernumerary post shall not be eligible for promotion to a regular vacancy or even ratio promotion for a period of three years from the date of appointment, even if they become eligible for promotion to such regular vacancies arising in the Department during the period. Going by paragraph No.7, till absorption in a regular vacancy,such sports persons will be given Time Bound Higher Grade. Evidently, sports persons who are continuing on such supernumerary posts are at a disadvantage with regard to their right for promotion during a particular period. The same is provided in the light of the fact that their services as sports persons should be available to the Department. 9. Therefore, the said Government Order really explains why they were absorbed in regular vacancies after their W.P.(C)No.2079/10 -6- declaration of probation. As these two types of employees were appointed from two different sources and rules regarding their appointment and promotion, etc. being different, evidently, date of entry in service can be a true test for deciding seniority also, especially since initial entry in service in a supernumerary post is followed by absorption in regular vacancies. The argument that their appointment was only temporary cannot therefore hold good. Promotions were granted only after such absorption. 10. The learned counsel for the petitioner submitted that there is an anomaly in the promotion granted, since Sl.Nos.1 and 2 in Exhibit P1 are also promoted by Exhibit P3 order and the yardstick adopted therein is not clear. Evidently, in paragraph No.14 of the counter affidavit it is explained that they were promoted in terms of the dated of occurrence of vacancies. Any way those aspects are not really issues which have to be resolved in this Writ Petition as those persons are not parties in the Writ Petition. Their promotions are not under challenge and they are seniors to the petitioner also. In the light of all the aspects considered above, Exhibit P3 cannot be faulted. The contesting respondents were promoted W.P.(C)No.2079/10 -7- in terms of their seniority. Therefore, the Writ Petition is dismissed. No costs. T.R.RAMACHANDRAN NAIR, JUDGE. dsn