IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 31651 of 2004(R)
1. H. NAZEER HUZZAIN, SECTION OFFICER
... Petitioner
2. B.BOSE, SECTION OFFICER,
3. MUHAMMED HUSSAIN, LEGALA ASSISTANT
4. K.DILIP KUMAR, LEGAL ASSISTANT
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
2. THE CONVENOR, DEPARTMENTAL PROMOTION
3. THE SECRETARY TO GOVERNMENT,
For Petitioner :SRI.K.BABU THOMAS
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice P.N.RAVINDRAN
Dated :16/06/2010
O R D E R
P.N.RAVINDRAN, J.
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W.P.(C).NOs.31651 & 31892 OF 2004
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Dated this the 16th day of June, 2010.
JUDGMENT
Common questions arise for consideration in these writ
petitions. They were therefore heard together and are being
disposed of by this common judgment.
W.P.(C).No.31651 of 2004 :-
2. The petitioners in this writ petition initially entered
service in various Government departments. While in service,
pursuant to Ext.P2 notification dated 15.12.1992 issued by the
Government, they applied for appointment by transfer as Legal
Assistant Grade II in the Law department. They were selected
and included in Ext.P3 ranked list published in the Kerala Gazette
(Extraordinary) dated 7.10.1995. Petitioners 1 and 2 were
appointed by Ext.P4(a) order dated 4.12.1997 and Ext.P4(b) order
dated 20.2.1998 respectively and petitioners 3 and 4 were
appointed by Ext.P4 order dated 4.5.1998, as Legal Assistants.
3. Thereafter, a provisional seniority list of Legal Assistants
in the Law department as on 1.1.1999 was published and
objections were invited to the provisional seniority list. The
W.P.(C).NOs.31651 & 31892 OF 2004 2
petitioners and others objected and after considering all such
objections, Ext.P5 final seniority list of Legal Assistants in the
Law department as on 1.1.1999 was published in the Kerala
Gazette dated 9.5.2000. Long thereafter, the petitioners filed
Ext.P6 series of representations dated 20.2.2004 objecting to the
rank and seniority assigned to them in Ext.P5 seniority list. They
contended that the rotation contemplated in the Special Rules
was not followed while making appointments and therefore the
seniority list is liable to be recast. They, thereafter filed W.P.(C).
No.8405 of 2004 in this Court, inter alia seeking a direction to the
Government to consider their grievances. By Ext.P7 judgment
delivered on 10.3.2004, this Court disposed of the said writ
petition with a direction to the Government to consider the
representations filed by the petitioners. This Court also directed
that if there is justification for the delay in filing the
representations, it may be taken up and appropriate orders
passed after notice to the affected persons, if necessary.
4. Pursuant to the directions issued by this Court in Ext.P7
judgment, the Government heard the petitioners and passed
Ext.P9 order dated 31.7.2004, wherein the Government held
that the seniority of Legal Assistants was rightly fixed in
accordance with rules. The Government also held that the
W.P.(C).NOs.31651 & 31892 OF 2004 3
objection to the seniority list is belated. Exts.P5 and P9 are
under challenge in this writ petition.
W.P.(C). No.31892/2004
5. The petitioner herein is similarly placed as the petitioners
in W.P.(C).No.31651 of 2004. He was appointed as Legal
Assistant Grade II in the Law department by Ext.P5 order dated
28.1.1997. Thereafter, a provisional seniority of Legal Assistants
in the Law department as on 1.1.1999 was published and after
considering the objections raised by various persons, Ext.P7 final
seniority list of Legal Assistants in the Law department as on
1.1.1999 was published in the Kerala Gazette dated 9.5.2000.
Long thereafter, the petitioner filed Ext.P8 representation dated
16.2.2004 objecting to the rank and seniority assigned to him in
Ext.P7 seniority list. He thereafter filed W.P.(C).No.8775 of 2004
in this Court. By Ext.P12 judgment delivered on 15.3.2004 this
Court disposed of the said writ petition with a direction to the
Government to consider the representations filed by the
petitioners. This Court also directed that if there is justification
for the delay in filing the representations, it may be taken up and
appropriate orders passed after notice to the affected persons, if
necessary. Pursuant to the directions issued by this Court in
Ext.P12 judgment, the Government heard the petitioner and
W.P.(C).NOs.31651 & 31892 OF 2004 4
passed Ext.P13 order dated 13.9.2004, wherein the
Government held that the seniority of Legal Assistants was
rightly fixed in accordance with rules. The Government also
held that the objection to the seniority list is belated. Exts.P7
and P13 are challenge in this writ petition.
6. The main ground raised by the petitioners in these
original petitions is that the rotation stipulated in the Special
Rules, namely, the Kerala Secretariat Subordinate Service Rules,
1967 was not followed while filling up vacancies and that direct
recruits and Assistant Tamil Translators and Assistant Kannada
Translators were appointed in excess of the quota and in violation
of the rotation. It is contended that such vacancies which were
illegally filled up by direct recruits and by Assistant
Tamil/Assistant Kannada Translators should be alloted to persons
appointed on promotion from the Kerala Secretariat Subordinate
Service and by transfer from any category in any department
under the Government or in the service of the High Court of
Kerala. The petitioners contend that if the rotation had been
correctly applied, the petitioner’s rank and seniority would have
been much higher. The petitioners further contend that the final
seniority list was never published and copies thereof never
served on them and the other persons named in the seniority
W.P.(C).NOs.31651 & 31892 OF 2004 5
list. The respondents have filed a counter affidavit resisting the
writ petition. It is contended that challenge to the final seniority
list is belated and that the petitioners have not produced any
cogent material to prove that the rotation was not correctly
applied.
7. I Heard Sri.Babu Thomas.K, learned counsel appearing for
the petitioners, Sri P.N.Manoj learned Government Pleader
appearing for respondents 1 to 3 and Smt.P.Vani, learned counsel
appearing for the party respondents. I have also gone through
the pleadings and the materials on record. The main contention
raised by the petitioners is that the rotation prescribed in the
Kerala Secretariat Subordinate Service Rules 1967 was not
followed when appointments were effected and that the said
anomaly requires to be rectified by assigning them earlier dates
of appointment. Apart from vaguely alleging that the rotation
stipulated in the rules was not followed when vacancies of Legal
Assistant were filled up, the petitioners have not produced any
material in support of the said contention. Even in the
representations filed by them no material has been furnished in
support of the said contention. In other words, the allegation that
the rotation was not followed is not supported by any cogent
material. In the absence of any such material, this Court cannot
W.P.(C).NOs.31651 & 31892 OF 2004 6
at this stage conduct a roving enquiry and decide whether the
rotation was correctly followed while effecting appointments in
the year 1997-98. Further, the petitioners have not in their
representations claimed seniority over any particular person. It is
therefore not necessary for me to decide whether the seniority
list was duly published. The said question does not in my opinion
really arise for consideration in the instant cases. Though in W.P.
(C).No.31892 of 2004 three persons have been impleaded as
party respondents, no one is on the party array in
W.P.C.No.31651 of 2004. In such circumstances, I am of the
considered opinion that no relief can be granted to the
petitioners. Further it is also conceded at the Bar that the
petitioners have been promoted to higher posts.
I accordingly hold that there is no merit in the writ
petitions. The writ petitions fail and are accordingly dismissed. No
costs.
P.N.RAVINDRAN, JUDGE.
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