IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 33487 of 2005(J)
1. R. SURESH KUMAR, RESEARCH ASSISTANT,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
2. THE DIRECTOR OF FISHERIES,
3. THE DEPARTMENTAL PROMOTION COMMITTEE
For Petitioner :SRI.S.P.ARAVINDAKSHAN PILLAY
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice K.K.DENESAN
Dated :30/01/2007
O R D E R
K.K. DENESAN, J.
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W.P.(C) No.33487 OF 2005 J
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Dated this the 30th January, 2007
J U D G M E N T
The petitioner commenced service as Research
Assistant, on the advice of the Kerala Public Service
Commission, on 23-1-1999. In the provisional seniority
list of Research Assistant he was assigned rank No. 53.
When the seniority list was finalised on 10-5-2002, his
rank was refixed as 49.
2. As per the Kerala Fisheries Service Rules
issued in G.O.(MS) No. 594/62/PD dated 3-11-1962,
Inspector of Fisheries, Fish Cultural Officers,
Technical Assistants, Fish Farm Managers and Research
Assistants in the Kerala Fisheries Subordinate Service
are the feeder categories for recruitment by transfer
to the post of Superintendent Fishermen Training Centre
(FTC, for short). There shall be a ratio of 2:1 for
recruitment by transfer between the categories of
Inspector of Fisheries/Fish Cultural Officers/Technical
Assistants/Fish Farm Managers and the category of
Research Assistant.
WPC No. 33487/2005 -2-
3. The petitioner is qualified for the post of
Superintendent, F.T.C by acquiring the requisite test
qualification and the Staff Training Course (STC), as
also satisfactory completion of probation in the
category of Research Assistant.
4. Select list of officers eligible for
appointment to the post of Superintendent, F.T.C. for
the year 2001 was prepared by the Departmental
Promotion Committee (Lower) for the Fisheries
Department in its meeting held on 4-8-2001. Out of the
21 officers whose cases were placed for the
consideration of the D.P.C., 11 officers were excluded
from the purview of consideration. Therefore in the
select list published in the Gazette dated 15-9-2001,
10 officers alone were included for appointment to the
post of Superintendent, F.T.C. As per the Special
Rules for the Kerala Fisheries Service, the cadre
strength in the post of Superintendent, F.T.C. shall be
maintained in the ratio of 2:1 between Inspector of
Fisheries/Technical Assistants/Fish Cultural
Officers/Fish Farm Managers and Research Assistants.
Since 11 officers were excluded from the select list as
WPC No. 33487/2005 -3-
prepared by the D.P.C., there was practical difficulty
in maintaining the ratio prescribed by the Special
Rules while filling up the then existing vacancies of
Superintendent, F.T.C. Hence, it was decided to
revise the select list before filling the vacancies.
Hence, an ad hoc meeting of the D.P.C. was held on 6-7-
2002. The revised select list for the post of
Superintendent, F.T.C. for the year 2001 prepared in
the ad hoc meeting held on 6-7-2002 is as follows:
"1. Sri. S. Jayachandran RA category
2. Sri. K.K. Satheeshkumar RA category
3. Sri. Dinesan Cheruvat RA category
4. Smt. R. Sandhya RA category
5. Sri. O. Vasu. IF/TA category
6. Sri. Subash Chandra Mohan IF/TA category
7. Smt. M. Laila Beevi RA category
8. Smt. D. Anithakumari IF/TA category
9. Sri. P. Amalakumar IF/TA category
10.Sri. S. Sreekumar RA category
11.Sri. N.K. Venu IF/TA category
12.Sri. M.J. Kurian IF/TA category
13.Dr. K.K. Sutharam RA category
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14.Sri. Abdul Majeed IF/RA category
15. Sri. S. Gurudas IF/TA category
16. Smt. R. Sheela RA category."
5. The contentions of the petitioner may be
summarised as follows: Dr. K.K. Sutharam (Sl. No. 13)
shown above is admittedly junior to the petitioner.
Hence, the petitioner is eligible to be included in
Ext. P2 in the place assigned to Dr. K.K. Sutharam. It
is admitted that the omission to include the name of
the petitioner in Ext. P2 happened since the ‘Notes’
for revising the select list was processed before
issuing the final seniority list of Research Assistant.
Overlooking the right of the petitioner to get
promotion to the post of Superintendent, F.T.C. in
preference to Dr. K.K. Sutharam, Ext. P4 order dated 4-
3-2003 was issued promoting almost all those who were
included in Ext. P2 revised list. Sl. No. 7 M. Laila
Beevi, Sl. No. 10 S. Sreekumar, Sl. No. 13 K.K.
Sutharam and Sl. No. 16 R. Sheela, who are included in
the revised select list for the post of Superintendent,
F.T.C. have been included as Sl. Nos. 1 to 4
respectively in the revised select list for the post of
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Research Assistant/Marine Survey Officer/Fresh Water
Biologist vide Ext. P2. The manner in which the
aforesaid persons have been promoted is discernible
from the following portion extracted from Ext. P4:
“Smt. M. Laila Beevi, the next person in
the select list had already been promoted as
Fresh Water Biologist from the select list of
Research Officer/Marine Survey Officer/Fresh
Water Biologist for the year 2001 as per this
office proceedings order No. A2/15990/01 dt.
1-10-01.
Sri. S. Sreekumar, Dr. K.K. Sutharam and
Smt. R. Sheela who were included in the
revised select list of Fishermen Training
Centre Superintendent have already been
promoted as Research Officer from the select
list of Research Officer/Marine Survey
Officer/Fresh Water Biologist for the year
2001 vide this office proceedings order No.
A2/15990/01 dt. 2-11-02, 6-1-2002 and 4-3-
2003 respectively. Hence Smt. M. Laila
Beevi, Sri. S. Sreekumar, Dr. K.K. Sutharam
and Smt. R. Sheela who were included in the
select list of Superintendent Fishermen
Training Centre from Research Assistant
category need not be posted as Superintendent
Fishermen Training Centre.
The next person in the select list Smt.
D. Anithakumari, Technical Assistant
Fishermen Station Vizhinjam is promoted to
the cadre of Superintendent Fishermen
Training Centre and posted as Extension
Officer (Fisheries), Office of the Deputy
Director of Fisheries (Zonal)
Thiruvananthapuram in the existing vacancy.”
6. The question for consideration is as to how
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the omission to include the petitioner in Ext. P2
shall be supplied and as to how and to what extent
benefits shall be given to him as a measure of
restoration of the rights lost to him by such omission.
In order to work out the rights and benefits due to the
petitioner consequent to his inclusion in the revised
select list, it is necessary to refer to the occurrence
of vacancies in the post of Superintendent, F.T.C. and
the equivalent post of Research Officer.
7. Sl. Nos. 1 to 4, 7, 10, 13 and 16 in Ext. P2
revised list are from the feeder category of Research
Assistants. Others are from other feeder categories.
The select list is prepared applying the ratio of 2:1.
Sl. Nos. 7, 10, 13 and 16 are included in the select
list of Research Officer also. Relevant portion from
Ext. P4 quoted above shows that they were promoted as
Research Officers without being promoted as
Superintendent, F.T.C. The above two posts are in the
same rank and carry the same scale of pay. Hence, Sl.
Nos. 7, 10, 13 and 16 need not be promoted as
Superintendent, F.T.C. for appointment by transfer as
Research Officers. Sl. Nos. 13 and 16 are admittedly
WPC No. 33487/2005 -7-
juniors to the petitioner in the feeder category of
Research Assistant. Hence, they ought not to have been
included in the select list without including the
petitioner in that list and without assigning him a
higher rank, had the omission been noticed at the
appropriate time. It is indisputable that had the
petitioner been included as Sl. No. 13 in Ext. P2, he
would have been promoted as Superintendent, F.T.C. by
Ext. P4 order dated 4-3-2003. Since Sl. Nos. 7 and 10
in Ext. P2 were already promoted as Research Officers,
the petitioner would have been promoted instead of Sl.
No. 8 in Ext. P2, by virtue of his rank (Sl. No. 13) in
Ext. P2. However, the 2nd respondent-Director issued
orders accommodating Smt. D. Anithakumari (Sl. No. 8 in
Ext. P2) in the post that remained vacant consequent on
the promotion of Smt. M. Laila Beevi (Sl. No. 7 in Ext.
P2) as Research Officer. It is contended by counsel
for the petitioner that the above action of the 2nd
respondent is illegal and irregular because Sl. No. 7
in Ext. P2 is the slot meant for promoting a Research
Assistant so as to maintain the ratio of 2:1 between
the category of Inspectors and the category of Research
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Assistants. As already noticed, Smt. Anithakumari (Sl.
No. 8) was given promotion as Superintendent, F.T.C. as
per Ext. P4.
8. The petitioner filed representations against
the supersession. When no action was taken he
approached this Court. As a result of the action taken
by the petitioner and the directions he obtained from
this Court, a review meeting of the D.P.C. was held on
13-7-2005 including the name of the petitioner against
Sl. No. 13 in the same list for the post of
Superintendent, F.T.C. for the year 2001. Ext. P8 is
the notification issued by the Government approving the
above select list. However, the grievance of the
petitioner for appropriate promotion to the post of
Superintendent, F.T.C. and the next higher post of
Asst. Director of Fisheries from the due dates has not
been redressed. He has therefore approached this Court
with the above writ petition for a declaration that
Ext. P4 to the extent his right for promotion was
illegally overlooked, Ext. P9 to the extent his name
was omitted to be included in the select list for the
post of Asst. Director of Fisheries for the year 2005
WPC No. 33487/2005 -9-
and Ext. P11 to the extent he is denied promotion to
the post of Asst. Director of Fisheries, are
unsustainable and liable to be set aside. Other
attendant benefits also have been prayed for.
9. The main contention taken in the counter
affidavit filed on behalf of the 1st respondent is that
none of the juniors of the petitioner in the category
of Research Assistant was promoted as Superintendent,
F.T.C. and as Asst. Director of Fisheries. It is,
however, admitted that the petitioner is liable to be
included as Sl. No. 13 in the select list for the post
of Superintendent, F.T.C. for the year 2001 and that
that right of the petitioner stands already restored in
the review meeting held by the D.P.C. on 13-7-2005.
According to the respondents, only those officers who
are placed in the select list upto Sl. No. 8 were
promoted as Superintendent, F.T.C. and that being the
position the petitioner’s contention is liable to be
repelled.
10. The petitioner has filed a reply affidavit
reiterating the stand taken in the writ petition.
11. Having heard counsel for the petitioner and
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the Govt. Pleader for the respondents, I am of the
opinion that the petitioner is entitled to get
restoration of the rights he had lost as a result of
the error committed by the department in not including
his name in Ext. P2 select list. In the light of the
indisputable fact that, but for that mistake or
omission, the petitioner would have found his name in
Ext. P2 against Sl. No. 13, he is entitled to say that
whatever rights and benefits he could have enjoyed by
virtue of that rank position in Ext. P2 shall be worked
out and granted by the respondents. The fact that Dr.
Sutharam happened to be included in Ext. P2 select list
as Sl. No. 13 by sheer mistake on the part of the
department and that Dr. Sutharam found a place in the
revised select list for the post of Research Officers
also and he got appointment by transfer to that post,
cannot be taken advantage of by the respondents to deny
the right of the petitioner on the ground that
promotion to the post of Superintendent, F.T.C. was
granted only upto Sl. No. 8 in that list. It cannot be
disputed that the turn of Research Assistants reached
upto Sl. No. 13 and if the petitioner was holding rank
WPC No. 33487/2005 -11-
No. 13 instead of Dr. Sutharam, he would have got
promotion to the post of Superintendent, F.T.C. since
he had no other avenue for promotion unlike Dr.
Sutharam. It is also a fact which cannot be denied
that had the petitioner been promoted as
Superintendent, F.T.C. by virtue of his rank against
Sl. No. 13, he would definitely have been promoted as
per Ext. P4 proceedings. If that is so, the fact that
the post of Superintendent, F.T.C. was declared
supernumerary on a subsequent date cannot affect his
right to be promoted as per Ext. P4 and that he would
have continued as a supernumerary hand and could have
worked out his rights by virtue of such appointment to
the post of Superintendent, F.T.C. to the next higher
post of Asst. Director. It follows that Ext. P4 order
is illegal to the extent it has denied promotion to the
petitioner to the post of Superintendent, F.T.C. There
shall be a declaration that the petitioner is entitled
to be promoted to the post of Superintendent, F.T.C.
with retrospective effect from 4-3-2003, ie. the date
from which Sl. No 8 in Ext. P2 select list was promoted
to the post of Superintendent, F.T.C. The 2nd
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respondent is directed to issue appropriate orders
promoting the petitioner as Superintendent, F.T.C. with
effect from 4-3-2003.
12. Ext. P9 has been drawn up without taking into
account the fact that the petitioner is entitled to be
treated as a member of the category of Superintendents,
F.T.C. Therefore, the D.P.C. shall hold an ad hoc
meeting to consider the case of the petitioner for
transfer appointment to the post of Asst. Director of
Fisheries for the year 2005. If the petitioner is
found eligible to be included in Ext. P9, he shall be
promoted as Asst. Director of Fisheries, with effect
from the date of those already promoted as per Ext.
P11, ie. 12-8-2005. Ordered accordingly.
13. Orders promoting the petitioner as
Superintendent, F.T.C. with effect from 4-3-2003 with
such benefits as are applicable to him according to
law, within six weeks from the date of receipt of a
copy of the judgment. Ad hoc meeting of the D.P.C. for
considering the case of the petitioner for transfer
appointment to the post of Asst. Director of Fisheries
shall be convened within two months thereafter. The
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entire exercise shall be completed within five months
from the date of receipt of a copy of the judgment.
The writ petition is allowed as above.
K.K. DENESAN
JUDGE
jan/