IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 3003 of 2007()
1. K.BABURAJAN PILLAI,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
2. THE PRINCIPAL CONSERVATOR OF FOREST,
3. THE CONSERVATOR OF FOREST,
For Petitioner :SRI.M.V.THAMBAN
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MR. Justice P.N.RAVINDRAN
Dated :01/02/2010
O R D E R
K.BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ.
---------------------------
W.A. No. 3003 OF 2007
--------------------------
Dated this the 1st day of February, 2010
J U D G M E N T
Balakrishnan Nair, J.
The appellant was the writ petitioner. He was a Forester while the
writ petition was filed. The grievance highlighted iin the writ petition was
that as per the Special Rules 10% of the vacancies in the cadre of
Forester before 27.2.1990 should have been filled up by transfer from the
Ministerial Staff. The petitioner was eligible for appointment in that
channel. The rules were amended on 27.2.1990 deleting the provision for
appointment by transfer to the 10% vacancies. But, if the promotions were
ordered properly, he would have got promotion before 27.2.1990. Later,
the provision for appointment by transfer was reintroduced in the rules as
per Government order dated 31.1.1998 and on the strength of that, the
appellant has already been promoted as Forester.
2. The point that arises for consideration is whether there were
vacancies available for promoting the appellant as Forester before
27.2.1990 having regard to his seniority. When the writ petition was heard
on 11.8.2009, this Court directed the respondents to file a counter affidavit
on the above point. The respondents have filed counter affidavit stating
that before 27.2.1990, three vacancies were available and those were
filled up by appointing the seniors of the appellant. Therefore having
W.A. No.3003/07
2
regard to his seniority in the ministerial wing, he could not have been
appointed by transfer.
3. The appellant has filed a reply affidavit and stated that having
regard to the cadre strength, the transfer appointment did not come to 10%.
That means there were vacancies. But we notice that the special rules
then in force provided for appointment by transfer with reference to the
vacancies arising from time to time. The concept of cadre strength was
introduced through amendment to Rule 5 of the KS&SSR only on 2.2.1993.
Therefore the above claim also fails. But the learned counsel for the
appellant mustered courage and submitted that three persons appointed
were ineligible for appointment. At this distance of time we are afraid we
cannot go into the validity of their appointment. The point that has to be
considered is whether there were vacancies. Rightly or wrongly, they were
filled up by three persons in the remote past. We find no merit in the writ
appeal. It is accordingly dismissed.
K.BALAKRISHNAN NAIR,
(JUDGE )
P.N.RAVINDRAN,
(JUDGE)
vps