IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP.No. 38301 of 2002(I)
1. SMT.A.BABY, SENIOR CLERK,
... Petitioner
Vs
1. THE CHAIRMAN,
... Respondent
2. THE SECRETARY & LAISON OFFICER FOR
3. SMT.S.REMA DEVI, ASSISTANT,
4. UNION OF INDIA,
5. THE DEPUTY DIRECTOR (PERS),
For Petitioner :SRI.P.SANKARANKUTTY NAIR
For Respondent :SRI.C.S.ABDUL SAMMAD, ADDL.CGSC
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :03/04/2009
O R D E R
S. Siri Jagan, J.
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O.P. No. 38301 of 2002
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Dated this, the 3rd April, 2009.
J U D G M E N T
The petitioner is an employee of the Marine Products Export
Development Authority, which is admittedly a State or other authority
coming within the purview of Article 12 of the Constitution of India,
against which a writ petition under Article is maintainable. The
petitioner seeks the following reliefs:
“a) Call for the records of reservation of Scheduled
Caste/Scheduled Tribe candidates to the post of Assistants in the
Marine Products Export Development Authority;
b) To issue a writ in the nature of mandamus directing the
MPEDA to prepare and maintain a roster showing vacancies for
reservation for SC/ST candidates for promotion to the post of
Assistants;
c) To direct the MPEDA to promote the petitioner as Assistant
in the vacancy created due to the promotion of Smt. T. Priyamvada;
d) To declare that the post vacated by Smt. T. Priyamvada is a
reserved post for Scheduled Caste and that the third respondent is
not eligible for promotion to the said post;
e) For any other and further reliefs as this Hon’ble Court may
deem just and necessary in the facts and circumstances of the
case;
f) To call for the records leading to Ext. P 12 and to quash the
same by issuing a writ in the nature of certiorari;
g) To call for the vacancy based roster and post based roster
kept by the administration for scheduled caste and scheduled tribe
for the purpose of promotion to Assistants and Technical Assistants
post and also the general seniority and vacancy position during the
pendency of the O.P;
h) To issue a writ of mandamus or other appropriate writ,
order or direction directing the respondents 1 & 2 to promote the
petitioner as Assistant in the vacancy reserved for the Scheduled
Caste w.e.f. 01/12/1994;
i) To issue a writ of mandamus or other appropriate writ,
order or direction directing the respondents 1 & 2 to promote the
petitioner as Assistant in the carried forward post of reserved forO.P. . No. 38301/02 -: 2 :-
the Scheduled Caste w.e.f. 13/11/1997 in implementation of Ext. P
16 decision of the Authority in the 111th meeting held on
26/10/2006;
j) To issue a writ of mandamus or other appropriate writ,
order or direction directing the respondents 1 & 2 to lift the ban
imposed by the 2nd respondent in implementing Ext. P 16 decision
of the Authority as per Ext. P 16(a) and to implement the same
forthwith;
k) To issue a writ of mandamus or other appropriate writ,
direction or order directing the respondents 1 & 2 to grant all the
consequential service benefits including the arrears of salary
accordingly.”
2. The matter was elaborately heard on 3-2-2009. I was
inclined to accept the contention of the petitioner regarding her
eligibility for promotion with effect from an anterior date. However,
at that time, the learned counsel for the MPEDA submitted that since
Ext. P16 decision of the Authority has only been kept in abeyance by
Ext. P 16(a), the Authority may be given another chance to take a
decision on the matter. Therefore, I passed the following order:
“In this original petition the petitioner stakes a claim for
promotion to the post of Assistant in the Marine Products Export
Development Authority with effect from 13.11.1997 in a roster
point vacancy, which, according to the petitioner, should have
gone to a Scheduled Caste candidate and the petitioner is the
senior most Scheduled Caste candidate in service entitled to be
promoted in that vacancy. According to the petitioner, prior to
2.7.1997 the application of reservation was vacancy based in the
sense that vacancies arising should be filled up on the basis of the
40 point roster. According to the petitioner, going by the same, the
seventh vacancy should have been filled up by a Scheduled Caste
candidate and the petitioner was the senior most Scheduled Caste
candidate available. The petitioner submits that one
Sri.A.K.Thankappan was promoted on 14.10.1991.
Sri.A.K.Thankappan was a Scheduled Caste candidate. But,
according to the petitioner, the said Sri.A.K.Thankappan was not
promoted in a roster point applicable to a Scheduled Caste
candidate, but to an unreserved vacancy in accordance with his
regular seniority. The petitioner would contend that this is clear
from the fact that one Smt.T.Priyamvada who was an unreserved
candidate, and Sri.A.K.Thankappan were promoted on the sameO.P. . No. 38301/02 -: 3 :-
date viz., 14.10.1991. The petitioner points out that in the counter
affidavit the contention of the respondents is that
Sri.A.K.Thankappan was accommodated against a carry-forward
reserved vacancy earmarked for a Scheduled Caste candidate. If
that be so, after Sri.A.K.Thankappan became eligible for
promotion, the first vacancy should have been filled up by
promoting Sri.A.K.Thankappan in the carry-forward vacancy in the
Scheduled Caste quota and when two vacancies arose on
14.10.1991, the first vacancy should have been filled up by
promoting Sri.A.K.Thankappan in the Scheduled Caste vacancy
and then only Smt.T.Priyamvada could have been promoted. But
both in the seniority list of Senior Clerk and that of Assistant,
Smt.T.Priyamvada is shown as senior to the Sri.A.K.Thankappan.
Therefore, clearly the promotion of Sri.A.K.Thankappan on
14.10.1991 was not in a vacancy reserved for Scheduled Caste,
but in a carry-forward vacancy in accordance with the seniority
position of Sri.A.K.Thankappan. If that be so, the carry-forward
vacancy made mention of in the counter affidavit was still available
to be accommodated by a Scheduled Caste candidate. After
Sri.A.K.Thankappan the petitioner is the senior most SC candidate.
Therefore, the petitioner was the rightful claimant for the post
which vacancy arose after the petitioner become qualified for
promotion in so far as admittedly the carry-forward vacancy was
available all through out.
2. Subsequent to the filing of the counter affidavit in
this writ petition there was a further development in so far as the
MPEDA themselves appear to have recognised the claim of the
petitioner in Ext.P34 Note placed before the Authority proposing
to promote the petitioner with effect from 13.11.1997. As per
Exts.P16 proceedings that Note was approved by the Authority
and it was decided to promote the petitioner retrospectively with
effect from 13.11.1997. But strangely without assigning any
reason, by Ext.P16(a), Ext.P16 decision of the Authority was kept
in abeyance. No reason whatsoever is mentioned for the same. In
view of the above circumstances, I am of opinion that the Authority
should take a decision on this point in so far as they have not yet
cancelled Ext.P16 decision, but only kept it in abeyance. In the
above circumstances, I direct the Authority to take a final decision
in the matter in its next meeting. If there is no likelihood of a
meeting of the Authority being convened in the regular course
within two weeks, then a special meeting shall be constituted for
this purpose.”
3. Ext. P16 is dated 26-10-2006. Ext. P16(a) is dated 23-7-
2007. More than 1 = years have gone by. In spite of granting
sufficient time, the respondents are not able to take a decision. They
now seek further time. I am not inclined to grant further time. In any
O.P. . No. 38301/02 -: 4 :-
event, since I have already considered the contentions of the
petitioner and the respondents in detail and have come to the
conclusion that the petitioner is eligible for the promotion she has
claimed, I am inclined to allow the original petition. Accordingly, the
original petition is allowed.
Since the MPEDA themselves have, by Ext. P16, decided to
promote the petitioner with effect from 13-11-1997, I direct that such
promotion shall be with effect from that date. The petitioner shall
also be eligible all monetary benefits arising therefrom. Orders in this
regard shall be passed and arrears disbursed, as expeditiously as
possible, at any rate, within two months from the date of receipt of a
copy of this judgment.
Sd/- S. Siri Jagan, Judge. Tds/