IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 7TH OCTOBER 2009 / 15TH ASWINA 1931 OP.No. 11903 of 1999(P) ---------------------------------- PETITIONER: ------------------- K.G. KUMAR, KUMARAMANDIRAM, MYLODE, KOTTARAKKARA, NOW WORKING AS TECHNICAL ASSISTANT TO THE FISH FARMERS DEVELOPMENT AGENCY, KOLLAM AS EXTENSION OFFICER ON DEPUTATION (INSPECTOR OF FISHERIES). BY ADVS. MR.S.SHARAN, SMT.C.K.SHERIN. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, FISHERIES AND PORT(A) DEPARTMENT, SECRETARIATE, THIRUVANANTHAPURAM. 2. DIRECTOR OF FISHERIES, VIKAS BHAVAN, THIRUVANANTHAPURAM. 3. SMT. K. BABY LATHIKA, DEPUTY DIRECTOR OF FISHERIES, TRAINING, ERNAKULAM, KOCHI-11. 4. P.V. SHAMSUDEEN, DEPUTY DIRECTOR OF FISHERIES, PONNANI. R1 & R2 BY GOVERNMENT PLEADER SMT. N. SUDHA DEVI. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 07/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P. NO. 11903/1999-P: ORDER ON C.M.P.NO.19129/1999 IN O.P. NO. 11903/1999 CLOSED 07/10/2009. SD/- S.SIRI JAGAN, JUDGE. APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE ORDER OF PROMOTION AND APPOINTMENT OF PETITIONER AS SUB INSPECTOR OF FISHERIES DTD. 12/07/1974. EXT.P.2: COPY OF THE RELEVANT EXTRACTS OF THE FINAL SENIORITY LIST OF INSPECTOR OF FISHERIES, TECHNICAL ASSISTANT ETC. AS ON 01/01/87. EXT.P.3: COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN O.P. NO. 8636/1983 DTD. 09/12/87. EXT.P.4: COPY OF THE RELEVANT EXTRACTS OF THE TENTATIVE SENIORITY LIST OF RESEARCH ASSISTANTS OF THE DEPARTMENT OF FISHERIES AS ON 01/01/90. EXT.P.5: COPY OF THE SELECT LIST OF SUPERINTENDENT, FISHERMEN TRAINING CENTRE, RESEARCH OFFICER WHO ARE FIT FOR PROMOTION AS ASSISTANT DIRECTOR OF FISHERIES FOR THE YEARS 1985 TO 1998 BY THE DEPARTMENTAL PROMOTION COMMITTEE AND APPROVED BY THE GOVERNMENT. EXT.P.6: COPY OF THE ORDER DTD. 14/11/96. EXT.P.7: COPY OF THE ORDER DTD. 19/05/94 ISSUED BY THE DIRECTOR OF FISHERIES. EXT.P.8: COPY OF THE REPRESENTATION DTD. 05/10/98. EXT.P.9: COPY OF THE REPRESENTATION FILED ON 05/10/98. EXT.P.10: COPY OF THE ORDER NO. G.O.(RT).NO.441/87/F & PD DTD. 14/10/1989. EXT.P.11: COPY OF THE ORDER NO. G.O.(RT).NO.277/98 F & PD DTD. 02/07/1998. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. S.SIRI JAGAN, J. ================== O.P.No. 11903 of 1999 ================== Dated this the 7th day of October, 2009 J U D G M E N T The petitioner has filed this original petition seeking the following reliefs: “(i) to call for the records leading to Ext.P5 and to quash the same by the issue of writ of certiorari so far as it directs the promotion of persons who are having lesser service in the category of Inspector of Fisheries/Research Assistants etc. than that of the petitioner and so far as it is against the ratio of 1:1 fixed by the special rules for appointment by promotion and by transfer. (ii) to issue a writ of mandamus or other appropriate writ direction or order directing the respondents to consider the petitioner for promotion to the post of Assistant Director of Fisheries and to pass appropriate orders according to the special Rules for Kerala Fisheries Service and to grant him all consequential benefits. (iii) to issue a writ of mandamus or other appropriate writ direction or order directing the respondents to provisionally promote the petitioner to the post of Assistant Director of Fisheries. (iv) to grant such other reliefs as this Hon'ble Court may deem fit in the circumstances of the case.” 2. The contention of the petitioner is that as per Ext.P3 judgment of this Court, Inspectors having greater length of service than the persons in the categories of 5 and 6 mentioned in the recruitment rules are eligible to be considered for promotion ahead of categories 5 and 6. Categories 5 and 6 are Superintendent of Fishermen Training Centre, Marine Survey Officer, Fresh Water Biologist, Research Officer etc. The contention of the petitioner is that respondents 3 and 4 and others who were working as Research O.P.11903/99 2 Assistant/Research Officer had lesser service in the feeder category than the petitioner when they were considered for promotion and promoted. According to the petitioner, the petitioner is senior to respondents 3 and 4 and others and, therefore, the petitioner should have been considered for promotion ahead of them. 3. The petitioner retired from service on 31.5.1999. At the time of filing this original petition itself the 3rd respondent had been holding the post of Deputy Director of Fisheries admittedly. The petitioner has not stated as to when exactly the 4th respondent was promoted as Assistant Director. Although the petitioner had sought to implead respondents 3 and 4 in a representative capacity, C.M.P.No.10312/2000 was filed only to permit the petitioner to give public notice to the institution of the original petition by public advertisement. As such, as per the records, respondents 3 and 4 have not been impleaded in a representative capacity, as a consequence of which, I cannot consider the claim of the petitioner as against others who are not parties to this original petition. Further, the petitioner is challenging a the select list which was published on 24.8.1998, only on 18.5.1999. As per sub rule 8(a) of Rule 28(b)(i) of the KS&SSR, a person aggrieved by a select list has to file a representation within one month from the date of publication of the list. The petitioner did not do the same. O.P.11903/99 3 4. For all the above reasons, I am not inclined to exercise my discretionary jurisdiction under Article 226 of the Constitution of India in favour of the petitioner. Accordingly, this original petition is dismissed. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== O.P.No. 11903 of 1999-P ================== J U D G M E N T 7th October, 2009