IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN FRIDAY, THE 3RD JULY 2009 / 12TH ASHADHA 1931 WP(C).No. 20879 of 2003(K) ------------------------------------ PETITIONER(S): ---------------------- 1. THE KERALA PANCHAYAT EMPLOYEES' ASSOCIATION, GANDHARI AMMAN KOVIL ROAD, THIRUVANANTHAPURAM, REP. BY ITS GENERAL SECRETARY. 2. T.J.JERSON, HEAD CLERK, VALAKOM GRAMA PANCHAYAT, ERNAKULAM DIST. 3. A.P.MOHANAN, HEAD CLERK, KALLOORKAD GRAMA PANCHAYAT, ERNAKULAM DIST. 4. O.N.MOHANAN, HEAD CLERK, AARAKUZHA GRAMA PANCHAYAT, ERNAKULAM DIST. BY ADV. SRI.K.JAJU BABU SMT.M.U.VIJAYALAKSHMI RESPONDENT(S): ----------------------- 1. STATE OF KERALA, REP. BY SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT,GOVT.SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PANCHAYATS, THIRUVANANTHAPURAM. 3. SMT.P.M.SAJEEDA, HEAD CLERK, MALAYATTOOR - NEELESWARAM GRAMA PANCHAYAT, NEELESWARAM P.O., ERNAKULAM DIST. WP(C) NO. 20879/2003-I 2 4. RAJAN B.MENON, UD CLERK, OFFICE OF DEPUTY DIRECTOR OF PANCHAYATS, ERNAKULAM. ADDL.R4 IS IMPLEADED AS PER ORDER DT.4-9-03 ON IA.10947/2003. GOVERNMENT PLEADER SRI.V.MANU FOR R1 & R2 SRI.M.M.SAIDU MUHAMMED FOR R3 SRI.P.A.SHAJI SAMAD FOR R3 DR.K.P.SATHEESAN FOR R3 SRI.K.K.GOPINATHAN NAIR FOR R3 SRI.KRB.KAIMAL, SENIOR ADVOCATE FOR ADDL.R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 20879/2003-I APPENDIX PETITIONER'S EXHIBITS : EXT.P1 COPY OF THE JUDGMENT DT.18-7-00 IN WA.1510/1994 EXT.P2 COPY OF THE EXTRACT OF THE FINAL SENIORITY LIST OF UD CLERKS IN THE PANCHAYAT DEPARTMENT AS ON 1-1-1990 PUBLISHED ON 30-5-1997. EXT.P3 COPY OF THE EXTRACT OF THE FINAL SENIORITY LIST OF UD CLERKS FROM PANCHAYAT COMMON SERVICE AS ON 1-1-1990 PUBLISHED ON 10-3-2000. EXT.P4 COPY OF THE ORDER NO.E3-444/02 DT.10-7-2002 ISSUED BY R2 BY WHICH THE LAST TWO PERSONS IN EXT.P3 WERE APPOINTED AS HEAD CLERKS. EXT.P5 COPY OF THE SENIORITY LIST OF UD CLERKS IN THE PANCHAYAT DEPARTMENT, WHO WERE PROMOTED BETWEEN 1-1-90 TO 20-10-93 ISSUED BY R2. EXT.P6 COPY OF THE ORDER NO.E3-444/02 DT. 5-6-2002 PASSED BY R2 BY WHICH 1ST PERSON ONWARDS FROM EXT.P5 ARE PROMOTED AS HEAD CLERK. EXT.P7 COPY OF THE EXTRACT OF THE SENIORITY LIST OF UD CLERKS IN THE PANCHAYAT COMMON SERVICE BETWEEN 1-1-90 TO 20-10-93 ON 28-4-03 PUBBLISHED BY R2. RESPONDENTS' EXHIBITS : NIL / TRUE COPY / PA TO JUDGE. dkr THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- W.P(C).No.20879 OF 2003 ------------------------------------------- Dated this the 3rd day of July, 2009 JUDGMENT 1.Petitioners 2 to 4 were Head Clerks in service at the time of filing this writ petition. They are members of the first petitioner association. Notice of this writ petition was published in newspapers on 31.7.2003. 2.The Kerala Panchayat Subordinate Service Rules, 1994, hereinafter, the “Special Rules”, was published on 16.6.1994 with retrospective effect from 1.1.1990. Those rules provided that persons promoted during the period between 1.1.1990 and 20.10.1993 to any post and holding that post on 20.10.1993 shall not be reverted in implementation of the Rules. It is stated that 20.10.1993 is the date on which the Cabinet decided on the issuance of the Special Rules. 3. The method of appointment to the post of Head Clerk as per the Special Rules is by promotion from among Upper Division WPC.20879/03 Page numbers Clerks. A ratio of 13:2 is fixed between Upper Division Clerks of the Panchayat Common Service and Upper Division Clerks of the Panchayat Department for promotion as Head Clerk till the last Upper Division Clerk in both units as on 1.1.1990 is appointed as Head Clerk. The Panchayat Subordinate Service is created by the said two units. The prescription of the aforesaid ratio was by the amendment published on 24.2.1998. 4. By Ext.P1 judgment of the Division Bench relating to the integration of the two units into one Subordinate Service, this Court upheld the retrospective effect given to the Special Rules, however, holding that vested rights of persons who were promoted prior to 20.10.1993 as per the then existing rules shall not be affected by the Special Rules and they should be treated as promoted with effect from the respective dates of promotion and retrospective effect of the Special Rules cannot deprive them of such rights. WPC.20879/03 Page numbers 5. While the petitioners stated that the Government have unauthorisedly extended the implementation of the ratio by refusing to maintain the seniority list as on 1.1.1990, the contention of the State is that by virtue of the aforesaid judgment of the Division Bench, persons who were promoted after 1.1.1990 and who hold the office on 20.10.993 could not be reverted and therefore, the ratio prescribed for promotion to the post of Head Clerk could be implemented only from 20.10.1993 and hence, the ratio of the promotion began to be followed from 21.10.1993. 6. The two units were merged to form a common service governed by the Panchayat Subordinate Service with effect from 1.1.1990. The Special Rules of that service was published on 21.6.1994 giving retrospective effect to those rules from 1.1.1990. Such retrospective effect has been upheld by the Division Bench. Those persons who had been actually promoted between 1.1.1990 and 20.10.1993, that is, a date before the publication of the Special Rules, were given a WPC.20879/03 Page numbers protection from being reverted as a consequence of the Special Rules made operational retrospectively. Therefore, a seniority list has to be prepared and maintained as on 1.1.1990 including therein also persons who were promoted between 1.1.1990 and 20.10.1993 in terms of the rules that governed the two units. They would be given their respective dates of promotions as they got by virtue of the promotions so made. They cannot be deprived of the benefit of that promotion. But the operationalisation of the ratio is with effect from 1.1.1990 and the list has to be prepared as on 1.1.1990 and when such list is prepared at a later point of time, i.e., after the publication of the Special Rules on 16.6.1994, those persons who had obtained promotion between 1.1.1990 and 20.10.1993, on the basis of the Rules that governed them before the issuance of the Special Rules on 16.6.1994, would continue to remain protected in the post to which they were promoted. The net effect of this is that there can be only one seniority list after 1.1.1990 and the two lists of UDCs; one from Municipal Common service and the other from Municipal WPC.20879/03 Page numbers Department, are maintained only for the purpose of maintaining the ratio of 13:2, without fail, with effect from 1.1.1990, however, without disturbing any person who has already obtained promotion on the basis of the earlier rules. 7. For the said reasons, the writ petition is entitled to succeed. In the result, the official respondents are directed to publish a single seniority list of UDCs with effect from 1.1.1990 for effecting promotion to the cadre of Head Clerk in accordance with Note to the method of promotion under category 1 group II of Rule 3 of the Special Rules. All consequential reliefs in terms of this direction shall follow. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. kkb.4/7.