IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 9TH MARCH 2010 / 18TH PHALGUNA 1931 WA.No. 2648 of 2009 --------------------- AGAINST THE JUDGEMENT IN WPC.25130/2008 DATED 14.8.2009 .................... APPELLANT(S): RESPONDENTS 1 & 2 IN THE W.P. ------------------------------------------- 1. STATE OF KERALA, REP.BY ITS SECRETARY, DEPARTMENT OF GENERAL EDUCATION,SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, AND THE CHAIRMAN OF THE SELECTION COMMITTEE, OFFICE OF THE D.P.I,THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SMT.R.BINDU RESPONDENT(S): PETITIONERS & RESPONDENTS 3 TO 13 IN THE W.P. ------------------------------------------------------------ 1. C.I.ZEENATH, AGED 53 YEASRS, W/O.V.U.ABOOBACKER,VALIYAKATHU HOUSE, SURABHI.P.O, KONATHUKUNNU,THRISSUR DISTRICT. 2. K.P.GEETHA,AGED,52 YEARS, W/O.JAYAPRAKASH, KANJIRAPARAMBIL HOUSE, AMALA NAGAR.P.O, THRISSUR DISTRICT. 3. P.J.THANKAMMA,NOON MEAL OFFICER,OFFICE OF THE DEPUTY DIRECTOR OF EDUCATION,THRISSUR. 4. C.A.RAVEENDRAN, P.A.TO DEO,KANJIRAPPALLY, KOTTAYAM. 5. T.K.KUNJAPPAN,THOPPIL HOUSE,VEDIMARA (VIA),NORTH PARAVUR,P.O.MANNAM,RETD., SR. SUPERINTENDENT,OFFICE OF THE AEO,N.PARAVUR. 6. K.K.ALIYAR,P.A TO DEO,MUVATTUPUZHA. 7. C.MOHANAN,P.A TO DEO,THALASSERY, KANNUR. WA No.2648/2009 8. K.GOVINDAKUTTY NAIR, SENIOR SUPERINTENDENT, OFFICE OF THE AEO MANCOMPU,ALAPPUZHA. 9. SMT.V.KALLIYANIKUTTY SENIOR SUPERINTENDENT, OFFICE OF THE AEO KEEZHISSERY,MALAPPURAM. 10. SMT.ELIZABATH OOMMEN, SENIOR SUPERINTENDENT,OFFICE OF THE AEO, PATHANAMTHITTA. 11. E.HAREENDRA NATHAN,NOON MEAL OFFICER, OFFICE OF THE DEPUTY DIRECTOR OF EDUCATION, KANNUR. 12. M.CHANDRA MOHANAN,MADATHUMVAYALIL, NEW CIVIL LINE,NEAR CIVIL STATION,PALAKKAD. 13. R.HRIDYA SWAMY, RETD.SUPERINTENDENT, EDUCATION DEPARTMENT,PAMPAMPALLAM.P.O, PALAKKAD. BY ADV.SRI.BABU KARUKAPPADATH FOR R1,R2 AND R4 TO R3 ADV. SMT.VAHIDA BABU ADV. SRI.K.PADMANABHAN FOR R3 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 09/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ. ------------------------------ W.A.No.2648/2009 ------------------------------ Dated this, the 9th day of March, 2010 JUDGMENT Balakrishnan Nair, J. The appellants were respondents 1 and 2 in the Writ Petition. Respondents 1 and 2 herein were the writ petitioners. 2. The brief facts of the case are the following: The respondents 1 to 13 were Junior Superintendents under the General Education Department. Their next promotion post is Senior Superintendent. The claims of the incumbents in the cadre of Junior Superintendent for promotion to the post of Senior Superintendent were considered by the Departmental Promotion Committee (for short “DPC”), which met on 11.6.2004. The list prepared by the DPC of eligible Junior Superintendents was approved by the Government and published in the gazette dated 9.8.2004. From the said publication, it is clear that the claims of the writ petitioners/respondents 1 and 2 were not considered by the DPC for the reason that the second appellant herein did not make available the Annual Confidential Reports of the said persons and a few WA No.2648/2009 - 2 - others. In other words, their case for promotion was deferred by the DPC. The respondents 1 and 2 were admittedly seniors to some of the other respondents. Later, the review DPC met on 14.9.2004 and it cleared the names of respondents 1 and 2 and a few others. Based on the first DPC list published on 9.8.2004, some of the party respondents were promoted as per Exts.P5 and P6 orders, as Senior Superintendents. Later, on being cleared by the review DPC, respondents 1and 2 and a few others were promoted as Senior Superintendents, by Ext.P7 order dated 7.10.2004. 3. Later, when further promotions were ordered in the Department, the persons promoted by Exts.P5 and P6 were treated as seniors in the cadre of Senior Superintendents and they were preferred. Thereupon, respondents 1 and 2 realised that their seniority was not restored in the cadre of Senior Superintendent, having regard to their seniority in the feeder category. So, the 2nd respondent represented by filing P8 representation. But, ignoring their claim, further promotions were ordered to higher posts, superseding them. Therefore, the 1st respondent preferred Ext P13 representation before the second appellant. Similar representation was filed by the second respondent also. Their representations were rejected by Exts.P14 and P15 communications, holding that they were WA No.2648/2009 - 3 - promoted by Ext.P7 only on 7.10.2004. The persons preferred for further promotions were those who were promoted earlier. Challenging Exts.P10 to P12, as per which the juniors of respondents 1 and 2 were promoted and also Exts.P14 and P15, the Writ Petition was filed. The appellants supported their actions impugned, by filing a counter affidavit. According to them, the promotions were effected in 2004 and respondents 1 and 2 started demurring only in 2006. So, they have slept over their rights. But, the learned Single Judge overruled their objections and allowed the Writ Petition. Hence this appeal. 4. We heard the learned Government Pleader for the appellants and the learned counsel for respondents 1 and 2. We heard Sri.K.Padmanabhan, learned counsel for the 3rd respondent also. It is not in dispute that respondents 1 and 2 herein were seniors in the feeder category. It is also not in dispute that if they were considered along with others, when the first DPC met on 11.6.2004, they would have been promoted. Only because of the non-availability of the Annual Confidential Reports concerning respondents 1 and 2, their consideration was delayed by about three months and finally, the review DPC cleared them on 14.9.2004. In such circumstance, by virtue of Rule 28(b)(i)(7) of WA No.2648/2009 - 4 - the Kerala State and Subordinate Services Rules (KS & SSR), they are entitled to restoration of seniority. But, the point to be considered is whether respondents 1 and 2 have lost their rights by virtue of delay, laches and acquiescence. According to the appellants, respondents 1 and 2 have chosen not to represent in time, when the first DPC list was published and further, they took up their grievance before the authorities only after the lapse of two years. Therefore, respondents 1 and 2 should have been non-suited, it is submitted. 5. The learned counsel for respondent 1 and 2 submitted that the said respondents had occasion to know that their seniority was not restored, only when the persons promoted under Exts.P5 and P6 were further promoted. Immediately, they have represented their grievance and pursued the matter vigilantly. So, there is no question of delay, laches or acquiescence, it is pointed out. The respondents 1 and 2 also pointed out that no seniority list of Senior Superintendents was published, enabling them to know their position in that cadre. Therefore, the appeal is liable to be dismissed, it is submitted. 6. If certain incumbents in the field of choice could not be considered for promotion by reason of absence of their Annual WA No.2648/2009 - 5 - Confidential Reports, if the review DPC, which met subsequently, clears them, their seniority has to be restored. The above legal right flows not only from Articles 14 and 16, but also from Rule 28(b)(i)(7) of the KS & SSR. In this case, normally, in the light of the said Rule, their seniority position should have been restored in the cadre of Senior Superintendent, unless the appellants have a case that the persons promoted earlier were demonstrably superior and entitled to seniority, ignoring the seniority in the feeder category. As rightly noticed by the learned Single Judge, the appellants do not have any such case. Therefore, seniority in the promoted cadre should be governed by the seniority in the feeder category. The respondents 1 and 2 came to know that their seniority was not restored only when further promotions were ordered, ignoring their claims. The appellants do not have a case that before the impugned promotions, a fresh seniority list of Senior Superintendents was published. If that be so, respondents 1 and 2 can take objection concerning their seniority position only when they were superseded for further promotion. Therefore, we find that there is no delay or laches on their part in asserting their rights. We WA No.2648/2009 - 6 - find no reason to interfere with the judgment under appeal. In the result, the Writ Appeal fails and it is dismissed. K. Balakrishnan Nair, Judge. P.N.Ravindran, Judge. nm.