Kerala High Court
Vipin V.Nair vs The State Of Kerala on 26 August, 2011
Author: K.Surendra Mohan
Bench: K.Surendra Mohan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN
WEDNESDAY, THE 7TH DAY OF MARCH 2012/17TH PHALGUNA 1933
WP(C).No. 1434 of 2012 (D)
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PETITIONER(S):
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VIPIN V.NAIR, AGED 29 YEARS
AGED 29 YEARS, S/O. LATE VIJAYAKUMARAN NAIR
RESIDING AT DEVA NANDANAM, TC 7/1436(4), KRWA 185 B
KATTACHAL ROAD, VATTIYOORKAVU
THIRUVANANTHAPURAM-695013, (WORKING AS UD CLERK
JALABHAVAN, KERALA WATER AUTHORITY, TRIVANDRUM).
BY ADV. SRI.P.ANOOP (MULAVANA)
RESPONDENT(S):
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1. THE STATE OF KERALA
REPRESENTED BY ITS SECRETARY TO GOVERNMENT, WRD
GOVERNMENT SECRETARIAT, TRIVANDRUM-695001.
2. KERALA WATER AUTHORITY
REPRESENTED BY ITS MANAGING DIRECTOR, JALABHAVAN
TRIVANDRUM-695033.
3. THE SENIOR ADMINISTRATIVE OFFICER
KERALA WATER AUTHORITY, JALABHAVAN
TRIVANDRUM-695033.
BY ADV. SMT.AMBIKA DEVI, SC, KWA
BY ADV. SRI.JOSEPH JOHN, SC, KERALA WATER AUTHORITY
BY GOVERNMENT PLEADER
BY SMT.AMBIKA DEVI, SC, KWA
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
07-03-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 1434 of 2012 (D)
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APPENDIX
PETITIONER(S) EXHIBITS:-
EXHIBIT P1:TRUE COPY OF THE PROMOTION ORDER DATED 26/08/2011.
EXHIBIT P2: TRUE COPY OF THE REPRESENTATION OF the PETITIONER
19/09/2011.
EXHIBIT P3: TRUE COPY OF THE PROMOTION ORDER DATED DATED 11/10/2007.
EXHIBIT P4: TRUE COPY OF THE PROMOTION ORDER DATED 29/2/2008.
EXHIBIT P5: TRUE COPY OF THE FINAL SONORITY LIST OF UPPER DIVISION
CLERK PUBLISHED VIDE ORDER DATED 13/08/2008.
EXHIBIT P6: TRUE COPY OF THE COMMON JUDGMENT IN WPC NO. 22997/2005 AND
CONNECTED CASES.
EXHIBIT P7: TRUE COPY OF THE ASSEMBLY QUESTION NO. 6631 OF HONOURABLE
MLA SRI. MONS JOSEPH.
EXHIBIT P8: TRUE COPY OF THE ANSWER TO THE ASSEMBLY QUESTION NO. 6631.
EXHIBIT P9: TRUE COPY OF THE REPRESENTATION DATED 17/11/2011 SUBMITTED
BEFORE THE HONOURABLE MINISTER FOR WATER RESOURCES.
EXHIBIT P10: TRUE COPY OF GOVERNMENT LETTER NO. 26299/C2/11/WRD DATED
22/11/2011.
EXHIBIT P11: TRUE COPY OF THE REPRESENTATION DATED 09/12/2011 FILED
BEFORE THE MD, KWA.
EXHIBIT P12: COPY OF PETITION DATED 4.11.2011.
EXHIBIT P13: COPY OF PETITION DATED 12.12.2011.
EXHIBIT P14: COPY OF PETITION DATED 29.1.2012.
RESPONDENTS' EXHIBITS:- NIL
( TRUE COPY )
PA TO JUDGE
Kvs/-
K.SURENDRA MOHAN, J.
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WP(C).No.1434 of 2012.
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Dated this the 7th March, 2012.
J U D G M E N T
The petitioner has filed this writ petition challenging the assignment of seniority to him consequent to his promotion as an Upper Division Clerk. The petitioner entered service of the second respondent as a Lower Division Clerk on 30.6.2006. He completed his probation on 5.7.2008. He acquired the necessary test qualification in the year 2008. He was placed in the list of persons eligible for promotion to the next higher post of Upper Division Clerk in December, 2008. On 29.12.2008, a number of persons were promoted as Upper Division Clerks from the said list. Consequently, the petitioner's ranking in the said list was upgraded and he was assigned rank No.25. However, thereafter in January, 2009, 26 persons who acquired the test qualification subsequently, were included WP(C).No.1434/2012.
2 in the list above the petitioner and thereby the ranking of the petitioner came down to 51. Thereafter, the petitioner was promoted as an Upper Division Clerk only with effect from 26.8.2011. According to the petitioner, he should have been promoted with effect from 1.7.2008. According to the petitioner, prior to 31.3.2001 there were 54 vacancies remaining unfilled. Since the petitioner was fully qualified to be promoted to one of the vacancies that was in existence, it is contended that an omission to promote him was illegal. Further, the promotion granted to his seniors who had acquired the test qualification only much later than the petitioner and much after the occurrence of the vacancies cannot deprive the petitioner of his right to be promoted on an earlier date. Therefore, the petitioner has submitted Ext.P9 representation to the concerned Minister, which has failed to evoke any response. Ext.P11 representation submitted by the petitioner therefore has also not been turned down. The petitioner has therefore WP(C).No.1434/2012.
3 filed this writ petition seeking the issue of appropriate directions for restoring the seniority that is due to him.
2. The counsel for the second respondent submits that the 26 persons who became test qualified in January, 2009 were seniors to the petitioner in the cadre of Lower Division Clerks. The petitioner had not been promoted to the post of Upper Division Clerk for the reason that there was no vacancy in existence to promote him. According to the counsel, the 26 seniors who had acquired test qualification in January, 2009 were placed above the petitioner and promoted before the petitioner for the reason that they were also possessing all the necessary qualifications at the time of occurrence of vacancies. For the above reason, it is contended that the petitioner is not entitled to any of the reliefs sought for in this writ petition.
3. I have heard the counsel for the contesting parties and have considered the rival contentions anxiously.
4. It is not in dispute that the petitioner had WP(C).No.1434/2012.
4 acquired the necessary test qualification in the year 2007. It is also not in dispute that the petitioner had been placed in the list of eligible persons for promotion to the next higher post of Upper Division Clerk as Sl.No.112, in December, 2008. From the list, 87 persons who were seniors to the petitioner in the list were admittedly promoted on 29.12.2008. However, before the next promotions were effected, 26 persons were placed above the petitioner for the reason that they had been seniors to him in the cadre of Lower Division Clerk. It is not in dispute that they had acquired the necessary test qualification only in January, 2009. But, the counsel for the second respondent is not in a position to furnish the exact dates on which the vacancies to which such persons were promoted had arisen. Without ascertaining the exact dates on which the vacancies arose, it is not possible to determine whether the persons who had acquired the test qualification in January, 2009 were qualified to be promoted on the dates of WP(C).No.1434/2012.
5 occurrence of the vacancies. Therefore, the second respondent would have to undertake the exercise of ascertaining the exact dates on which the vacancies that arose in the cadre of Upper Division Clerks to which the 26 persons who had acquired the test qualification in January, 2009 were promoted.
5. My attention has been drawn to the direction in Ext.P6 judgment dated 11.10.2007 wherein after consideration of the very same issue raised in other writ petitions with respect to the very same promotion was considered by this Court. After considering the entire issue, this Court has issued the following direction:
"The Water Authority shall correctly ascertain the date of occurrence of the vacancies of Upper Division Clerk, on account of retirement, on account of death, or promotion, creation of vacancies by way of upgradation or otherwise. Simultaneous to the assessment of the date of occurrence of the vacancies, Water Authority shall also prepare the list of incumbents with reference to the date on which they have acquired the test qualification. Therefore, preparation of WP(C).No.1434/2012.6
seniority list shall not made keeping in mind the principle that even if the junior acquires the qualifications prior to the senior, the assignment of seniority will have to be made with reference to the date of occurrence of the vacancy. Revised proceedings in this regard will be passed within six months from the date of receipt of a copy of this judgment. Before issuing orders, all the parties shall be heard."
6. In spite of the above direction, it appears that the exercise directed to be completed has still not been undertaken or completed. If the above direction had been complied with, complaints in the present case would not have arisen at all. In the present case also, in order to fix the seniority of the petitioner in the cadre of Upper Division Clerks, if necessary by reassigning the seniority position, an exercise as directed by this Court above, is absolutely necessary. For the above reasons, I am of the view that the petitioner is entitled to succeed.
7. In the above circumstances, this writ petition is disposed of directing respondents 2 and 3 to set right the promotions made after 2009 in accordance with the above WP(C).No.1434/2012.
7 principles and to revise and reassign the seniority of the petitioner, if required, after working out the seniority position afresh in accordance with the directions contained in Ext.P6 judgment. Such an exercise as indicated above shall be initiated and completed as expeditiously as possible and at any rate within a period of three months from the date of receipt of a copy of this judgment.
K.SURENDRA MOHAN, (Judge) Kvs/-