IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR MONDAY, THE 1ST AUGUST 2011 / 10TH SRAVANA 1933 WP(C).No. 19984 of 2011(W) --------------------------------------- PETITIONER: ------------------- SIBY JOSEPH, ATTENDER, TALUK OFFICE, MEENACHIL, PALAI, KOTTAYAM- 686 575. BY ADVS. SRI.D.KISHORE, SMT.MINI GOPINATH. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2. THE DISTRICT COLLECTOR, KOTTAYAM - 686 001. 3. THE LAND REVENUE COMMISSIONER, THIRUVANANTHAPURAM-695 001. R1 TO R3 BY GOVT. PLEADER SMT. SMITHA SUKUMAR. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01/08/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).NO.19984/2011-W: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE RELEVANT EXTRACT OF THE PROCEEDINGS NO.A3-99/99 DTD. 11/05/99 OF THE R.2. EXT.P.2: COPY OF THE PROCEEDINGS NO. A3-36909/2K/K.DIS. DTD. 30/08/2000 OF R.2. EXT.P.3: COPY OF THE PROCEEDINGS NO.A2-30890 DTD. 28/07/2007 OF THE R.2. EXT.P.4: COPY OF THE PROCEEDINGS NO. A4-2010/26971/5 DTD 31/08/2010 REGARDING THE SECURITY LIST OF ATTENDER. EXT.P.5: COPY OF THE .GO.(P).NO.129/09/FIN. DTD. 01/04/2009. EXT.P.6: COPY OF THE PROCEEDINGS OF TAHSILDAR (LA), CHANGANASSERY DTD. 28/02/2011. EXT.P.7: COPY OF THE PROCEEDINGS NO. A-201/11 DTD. 28/02/2011 OF THE TAHSILDAR (LA), CHANGANASSERY. EXT.P.8: COPY OF THE G.O.(P)567/89/RD DTD. 12/07/1989 OF THE R.1. EXT.P.9: COPY OF THE REPRESENTATION DTD. 07/07/2011 SUBMITTED BY THE PETITIONER BEFORE THE R.2. RESPONDENTS' EXHIBITS: //TRUE COPY// P.A. TO JUDGE. Prv. C.T. RAVIKUMAR, J - - - - - - - - - - - - -- - - - - - - - - - - - - - - - W.P.(C)No. 19984 OF 2011 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 1st day of August, 2011 J U D G M E N T The petitioner is presently working as an Attender in the Revenue Department in Taluk Office, Meenachil. A Lower Division Clerk attached to the office of Tahsildar availed Maternity Leave for a period of six months evidently as per Ext.P5. The contention of the petitioner is that in the light of Ext.P5 Government order as also considering the length of leave granted in the light of Note (ii) under Rule 5(c) of Part II of the Kerala State and Subordinate Service Rules, it is to be construed as a vacancy. It is further contended in the light oif the aforesaid position he is having a claim to be considered for a posting against the said temporary vacancy. He has submitted such a claim as per Ext.P9 representation dated 7.7.2011. It is the non-consideration of the said application for promotion as against the said vacancy taking note of Ext.P5 and under Note ii Rule5(c) of KS&SSR that constrained the petitioner to file this writ petition. 2. Ext.P6 would reveal that the said LD Clerk was WPC.No.19984/2011 : 2 : granted Maternity Leave as per Ext.P6 dated 28.2.2011 from 1.3.2011 till 28.8.2011. Evidently, the petitioner has submitted his application only on 7.7.2011. This writ petition was filed on 21.7.2011. Thus, it is obvious that from the date of submission of the application and also from the date of filing of this writ petition the left over period was only less than the period required for treating it as a temporary vacancy. That apart, even if there is a vacancy in terms of the provisions under Note (ii) under Rule 5(c) of KS&SSR, the petitioner cannot, as a matter of right, claim for appointment against such a vacancy. Even in case of need for filling a temporary vacancy it cannot be effected disregarding the seniority going by the provisions of Rule 31(a)(1) of the Part II KS&SSR. In fact, it depends upon the finding of the competent authority regarding requirement to fill up such vacancy on account of existence of such an urgency. Evidently, even after granting leave to the said person as per Ext.P6, the respondents have not filled up the vacancy for about 4 months. That itself would reveal that the competent authority had not felt any urgency to fill up the said vacancy. Even if leave was granted to a WPC.No.19984/2011 : 3 : person in service comes within the period specified in terms of note (ii) Rule 5(c) of Part II KS&SSR or in terms of Ext.P5 Government Order that by itself cannot be a reason for this Court to direct the respondents to effect a promotion and fill up the said vacancy. As already noticed hereinbefore, the necessity or otherwise to fill up such a vacancy would depend upon the requirement and satisfaction of the condition under Note ii Rule5 of Part II KS&SSR. Evidently, in this case, no such steps was taken to effect any promotion and admittedly, only in July 2011 that the petitioner had made an application for the aforesaid purpose. Even if appointing authority was bound to fill up that vacancy necessarily it could have been filled up only, after considering the seniority of the persons included in the feeder category to the said post. The petitioner got no legal right to claim it should have been filled up by promoting him temporarily. At any rate, at this distance of time there is no scope even for directing the competent authority to consider the question of filling up of that vacancy taking into account the fact that the regular incumbent took leave only up to 28.8.2011. For all these reasons I am of the WPC.No.19984/2011 : 4 : view that the petitioner is not entitled to get relief sought for in this writ petition. There is no merit in this writ petition, accordingly, it is dismissed. Sd/- (C.T. RAVIKUMAR, JUDGE) jma //true copy// P.A to Judge