Kerala High Court
A.Mohanan Nair vs State Of Kerala on 31 January, 1989
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
WEDNESDAY, THE 11TH DAY OF JULY 2012/20TH ASHADHA 1934
WP(C).No. 19550 of 2009 (K)
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PETITIONER(S):
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1. A.MOHANAN NAIR,
SUPERINTENDENT,
CORPORATION OF THIRUVANANTHAPURAM,
THIRUVANANTHAPURAM.
2. V.REMADEVI,
SUPERINTENDENT,
THODUPUZHA MUNICIPALITY, THODUPUZHA.
BY ADVS.SRI.S.GOPAKUMARAN NAIR (SR.)
SRI.M.CHANDRA BOSE
DR.ABRAHAM P.MEACHINKARA
SRI.A.RAJASIMHAN
RESPONDENT(S):
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1. STATE OF KERALA,
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
LOCAL SELF GOVT. INSTITUTIONS DEPARTMENT,
GOVT. SECRETARIAT,
THIRUVANANTHAPURAM.
2. DIRECTOR,
URBAN AFFAIRS,
DIRECTORATE OF URBAN AFFAIRS, THIRUVANANTHAPURAM.
3. P.AMBUJAVALLI,
SUPERINTENDENT,
CORPORATION OF THIRUVANANTHAPURAM,
THIRUVANANTHAPURAM.
4. G.KALAVATHY,
SUPERINTENDENT,
CORPORATION OF THIRUVANANTHAPURAM,
THIRUVANANTHAPURAM.
DG
WP(C).No. 19550 of 2009 (K)
5. THOMAS P.THOMAS,
CHANGANASSERY MUNICIPALITY, CHANGANASSERY.
6. A.UNNIKRISHNAN NAIR,
REVENUE OFFICER GRADE-II,
CORPORATION OF THIRUVANANTHAPURAM,
THIRUVANANTHAPURAM.
7. M.J.ACHAMMA,
REVENUE OFFICER GRADE II,
PUNALUR MUNICIPALITY,
PUNALUR.
R1 & R2 BY ADV.SMT.K.K.DEEPA, GOVERNMENT PLEADER
R6 BY ADV.SRI.ELVIN PETER P.J.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
06-04-2011, THE COURT ON 11-07-2012 DELIVERED THE FOLLOWING:
DG
WP(C).No. 19550 of 2009 (K)
APPENDIX
PETITIONER'S EXHIBITS:
EXT.P1: COPY OF ORDER NO.B8-2188/89 DATED 31.01.1989.
EXT.P2: COPY OF ORDER NO.B7/8120/05 DATED 03.08.2005.
EXT.P3: COPY OF ORDER NO.E6/2270/08 DATED 25.03.2008.
EXT.P4: COPY OF ORDER NO.E6/3/08 DATED 13.06.2008
EXT.P5: COPY OF ORDER NO.E6/3/08 DATED 09.07.2008.
EXT.P6: COPY OF ORDER NO.E6/11242/08 DATED 08.01.2009.
EXT.P7: COPY OF THE INTERIM ORDER DATED 12.01.2009.
EXT.P8: COPY OF THE JUDGMENT IN WP NO.1201/2009.
EXT.P9: COPY OF ORDER NO.E6-11242/08 DATED 18.03.2009.
EXT.P10: COPY OF THE DEPARTMENTAL TEST CERTIFICATE.
EXT.P11: COPY OF THE DEPARTMENTAL TEST CERTIFICATE.
RESPONDENT'S EXHIBITS:
EXT.R6(a): COPY OF THE ORDER DATED 29.03.1986 ISSUED BY THE
DIRECTOR OF MUNICIPAL ADMINISTRATION.
EXT.R6(b): COPY OF THE ORDER DATED 04.08.1986 ISSUED BY THE 1ST
RESPONDENT.
EXT.R6(c): COPY OF THE ORDER DATED 05.11.1986 ISSUED BY THE
DIRECTOR OF MUNICIPAL ADMN.
EXT.R6(d): COPY OF THE ORDER DATED 22.05.1989 ALONG WITH THE
RELEVANT EXTRACT OF THE SENIORITY LIST ISSUED BY THE
1ST RESPONDENT.
//TRUE COPY//
P.A TO JUDGE
DG
C.T.RAVIKUMAR, J.
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W.P.(C)No.19550 of 2009
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Dated 11th July, 2012
JUDGMENT
The petitioners are challenging their reversion from the post of Revenue Officer Grade-II to the post of Superintendent in the Kerala Municipal Common Service and the consequential cancellation of their seniority and its re-fixation.
2. The case of the petitioners is as follows:-
As per Original order viz., order No.B4/271/86 dated 29.3.1986 the ratio based promotion in the ratio 1:1 was implemented in the Municipal Common Service. By a subsequent order viz., B4 (RDS)/12360/86 dated 4.8.1986 the said ratio promotion was given retrospective effect from 16.9.1985. Though the petitioners acquired the test qualification on 20.2.1986 they were not promoted along with the first batch of promotees and overlooking their seniority their juniors were promoted owing to the reason that the petitioners were not test qualified as on 16.9.1985. In the gradation list they were assigned rank Nos.580 and 583 respectively much below their juniors. Against such fixation of seniority they filed objections claiming ranks respectively at 420 and 422. Though their objections were not acted upon, as per a WP(C).No.19550/2009 2 subsequent order dated 5.11.1986, they were promoted to the post of U.D.Clerk. Later, as per Ext.P1 order dated 31.1.1989 retrospectivity was attached to their promotion from 17.5.1986. It is the case of the petitioners that they should have been given promotion with effect from 29.3.1986 along with the first batch of promotees pursuant to the implementation of 1:1 ratio and then, with effect from 16.9.1985 when the ratio based promotion was given retrospective effect. Staking such claims they filed representations. In the meanwhile, in 2001 they were promoted as Revenue Inspectors/Head Clerks and thereafter in 2004 they were promoted as Superintendents. According to them, on account of non-rectification of the irregularity crept in the matter of their promotion in 1986 they lost their due seniority in the said promoted posts. As per Ext.P2, the petitioners' seniority was restored and they were assigned rank Nos.419(A) and 421(A) in the 1986 gradation list. Later, as per Ext.P3, their seniority was re-fixed in the cadre of Revenue Inspector/Head Clerk as also in the cadre of Superintendent. Pursuant to Ext.P3 the first petitioner was promoted and posted as Revenue Inspector Grade-II from 13.6.2008 as per Ext.P4 and the second petitioner was so promoted as per Ext.P5 from 9.7.2008. Subsequently, based on complaints from respondents 3 to 5 at the instance of respondents 6 and 7 Ext.P6 order was passed cancelling the promotions and reverting them to the post of Superintendent. Feeling aggrieved by WP(C).No.19550/2009 3 Ext.P6 they approached this Court by filing W.P.(C)No.1201 of 2009. Initially, as per Ext.P7 order Ext.P6 order of reversion was stayed. Later, that writ petition was disposed of as per Ext.P8 judgment. Ext.P6 order of reversion was quashed and the second respondent was directed to hear the petitioners and party respondents therein and to take a fresh decision. Accordingly, hearing was conducted by the Joint Director of Urban Affairs on 5.3.2009 and Ext.P9 was passed without any application of mind. As per the same, Ext.P6 was upheld and the petitioners were reverted and posted as Superintendents. It is with the aforesaid averments that this writ petition has been filed mainly challenging Ext.P9 and seeking a declaration that the seniority restored to the petitioners as per Exts.P2 and P3 are valid besides seeking issuance of a writ (?) directing the second respondent to restore the petitioners' seniority in service and promotion as per Ext.P3.
3. Respondents 1 and 2 have jointly filed a counter affidavit and a separate counter affidavit has been filed by the sixth respondent. In the counter affidavit filed jointly by respondents 1 and 2 while admitting their entry dates in Municipal Common Service it is stated that there was no overlooking of seniority of the petitioners when the first batch promotion was effected since the petitioners acquired test qualification for promotion only subsequently viz., on 20.2.1986. It is WP(C).No.19550/2009 4 stated therein that against the promotion of the petitioners as per order dated 4.7.2009 and 9.7.2008 as Revenue Officer Grade-II respondents 3 to 5 filed complaints before the second respondent. On consideration of the said representations the second respondent found that a mistake had crept in the orders of promotion of the petitioners. Consequently, their promotions were cancelled and they were reverted to the post of Superintendent as per Ext.P6. It is further stated therein that pursuant to the directions of this Court in Ext.P8 judgment hearing was conducted and all the concerned parties except the seventh respondent herein had participated in the hearing. According to respondents 1 and 2 Ext.P9 order was passed after a detailed hearing and considering all the aspects of the issue. Since the petitioners were not test qualified as on 16.9.1985 they are ineligible to claim promotion with effect from 16.9.1985, it is contended. Based on such contentions respondents 1 and 2 supported Ext.P9 order, canvassed for its sustenance and contended for the dismissal of the writ petition.
4. The sixth respondent in the counter affidavit contended that the claims and contentions of the petitioners are unfounded and untenable. It is stated therein that the petitioners, admittedly, acquired the test qualification only on 20.2.1986 whilst, he had passed the requisite qualification prescribed for promotion as U.D. Clerk prior to WP(C).No.19550/2009 5 16.9.1985. According to him, it is in the said circumstances that he was promoted as per Ext.R6(a) order dated 29.3.1986 along with 214 other L.D. Clerks to the category of U.D. Clerk. Thereafter, as per Ext.R6(b) order retrospective effect was granted to the promotions made as per Ext.R6(a) order. The petitioners herein were promoted as U.D. Clerks only as per Ext.R6(c) order dated 5.11.1986. Ext.R6(d) provisional seniority list was published on 22.5.1989. In the said seniority list he was assigned rank No.436 whereas the petitioners were assigned only rank Nos.580 and 582. The petitioners had never chosen to challenge Ext.R6(d) seniority list so also Ext.R6(c) promotion order. It is the specific case of the sixth respondent that Exts.P2 and P3 orders assigning seniority to the petitioners in the category of U.D.Clerks by attaching retrospectivity to their promotions were passed without notice to the affected parties including himself. The sixth respondent attributes manifest illegality in Ext.P2 order, inasmuch as in Ext.R6(a) order the petitioners were directed to be included with retrospective effect. It is the contention of the sixth respondent that a mischief was done in the matter of inclusion of the petitioners in Ext.R6(a) which is dated 29.3.1986. According to the sixth respondent, it was so done only to create an impression that the petitioners who had acquired the test qualifications on 20.2.1986 were entitled to be given promotion on 29.3.1986 ignoring the crucial and relevant aspect regarding the date of WP(C).No.19550/2009 6 occurrence of vacancies. It is also contended by the sixth respondent that by virtue of the judgment of a Full Bench of this Court in Sudheer v. Susheela (2009 (4) KLT 29 (F.B.)) the principle `he who heard must decide' is not applicable in the case of Governmental decisions. In short, according to the sixth respondent, the petitioners who admittedly acquired the test qualifications only on or after 20.2.1986 are not entitled to get promotion with effect from 16.9.1985.
5. I have heard the learned counsel for the petitioners, the learned counsel for the sixth respondent and also the learned Government Pleader.
6. The rival pleadings would reveal that the vacancies in question occurred on account of the change in the ratio between the L.D. Clerks and U.D.Clerks as 1:1 in supersession of the earlier ratio 2:1. According to the petitioners, the ratio based promotion in the ratio of 1:1 was implemented in the Kerala Municipal Common Service as per Order No.B4-271/86 dated 29.3.1986. The petitioners have not chosen to produce its copy in this writ petition. However, its copy has been produced by the sixth respondent along with his counter affidavit as Ext.R6(a). Indisputably, it is not the original order introducing the ratio of 1:1 between the L.D. Clerks and U.D. Clerks in the Municipal Common WP(C).No.19550/2009 7 Service whilst it is the order of promotions, transfers and postings of L.D. Clerks/Bill Collectors consequent on the implementation of the ratio of 1:1 between L.D. Clerks and U.D. Clerks. It would also reveal that consequent on the implementation of the said ratio in Municipal Common Service 330 posts of L.D. Clerks were upgraded to that of U.D. Clerks and it is in the said circumstances that such promotions or transfers were made as per Ext.R6(a). The specific contention of the sixth respondent is that the original order in respect of the said subject was issued on 16.9.1985. The concerned Government order is G.O.(P)515/85/Fin. dated 16.9.1985. The resultant vacancies also occurred admittedly on 16.9.1985. The promotions were effected pursuant to the change in the ratio between the L.D. Clerks and U.D.Clerks against the resultant vacancies. Thus, there can be no dispute with regard to the date of occurrence of vacancies. Ext.R6(a) would also makes it clear that 330 vacancies were upgraded to that of U.D. Clerks consequent to the implementation of the said ratio. Therefore, the crucial date with respect to promotion against the resultant vacancies is 16.9.1985 and not 29.3.1986 as contended by the petitioners. Admittedly, the petitioners acquired the qualifications only on or after 20.2.1986. In other words, on 16.9.1985 they were neither qualified nor eligible to claim any exemption from acquisition of test qualification. The incontrovertible position is that as on 16.9.1985 the petitioners were not test qualified WP(C).No.19550/2009 8 and both of them acquired qualifications only on or after 20.2.1986. When that be the admitted position, even an inclusion of the petitioners in Ext.R6(a) would not have and could not have make them eligible for or entitle to promotion as U.D. Clerks with effect from 16.9.1985. Certainly, they could have staked claim for consideration for promotion only against vacancies that occurred on or after 20.2.1986. When once it is found that the original order whereby the ratio based promotion was firstly introduced, in other words, the change in ratio was brought into force was G.O.(P)515/85/Fin. dated 16.9.1985 and not Ext.R6(a), as contended by the petitioners, their claim founded on Ext.R6(a) is liable to be held as absolutely meritless. In the circumstances, this writ petition is liable to fail as the impugned orders are founded on correct position of law. Needless to say that, that would dis-entitle the petitioners from claiming any of the reliefs sought for in this writ petition.
In the above circumstances, this writ petition is dismissed.
Sd/-
C.T.RAVIKUMAR Judge TKS