High Court Kerala High Court

H. Nazeer Huzzain vs State Of Kerala on 16 June, 2010

Kerala High Court
H. Nazeer Huzzain vs State Of Kerala on 16 June, 2010
       

  

  

 
 
  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.
           ----------------------------------------------------
           W.P.(C).NOs.31651 & 31892 OF 2004
           ----------------------------------------------------
            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.

mns