Joshy Joseph K. v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN** **TUESDAY, THE 19TH JANUARY 2010 / 29TH POUSHA 1931** **WP(C).No. 35375 of 2009(N)** **----------------------------------------** **PETITIONER(S):** **------------------------** **JOSHY JOSEPH K., WELFARE ORGANISER, ZILA SAINIK WELFARE OFFICE, BALAN K.NAIR ROAD, KOZHIKODE-1.** **BY ADV. MR.KALEESWARAM RAJ** ## **RESPONDENT(S):** **--------------------------** **1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL ADMINISTRATION (SAINIK WELFARE), KERALA GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** **2. THE DIRECTOR, DIRECTORATE OF SAINIK WELFARE, VIKAS BHAVAN, THIRUVANANTHAPURAM.** **3. LOWER DEPARTMENTAL PROMOTION COMMITTEE, (FOR PROMOTION TO THE POST OF ASSISTANT ZILLA SAINIK WELFARE OFFICER/ASSISTANT DIRECTOR, DIRECTORATE OF SAINIK WELFARE), REP.BY ITS CONVENER, DIRECTORATE OF SAINIK WELFARE, THIRUVANANTHAPURAM.** **R1 & R2 BY GOVERNMENT PLEADER SMT.ANU SIVARAMAN** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **K.SURENDRA MOHAN, J = = = = = = = = = = = = = = = = = = = = = W.P.(C) No.35375 of 2009** **= = = = = = = = = = = = = = = = = = = = = = = Dated this the 19[th] day of January, 2010** ## **J U D G M E N T** The petitioner is working as a Welfare Organiser in the Zilla Sainik Office, Kozhikode. He claims promotion to the post of Assistant Zilla Sainik Officer which is equivalent to Assistant Director, Directorate of Sainik Welfare. 2. The post of Assistant Zilla Sainik Officer/Assistant Director, Directorate of Sainik Welfare is a post which comes under the Kerala State and Subordinate Service and is governed by the special rules issued by G.O.(P) No.457/92/GAD dated 7/11/1992. The method of appointment to the various posts is prescribed by Rule 3(2). As per the said Rule, the method of appointment is ‘by transfer’. The appointment to the said posts are made from the categories of Junior Superintendent/Head Clerk as well as Welfare Organiser. In the case of Junior Superintendent/Head Clerk for promotion to the post of Assistant Zilla Sainik Officer, a person should possess a W.P.(C) NO.35375 OF 2009 2 total service of not less than 7 years in the department out of which at least 3 years should have been in the categories of Junior Superintendent/Head Clerk reckoned together. At the same time, in the case of Welfare Organiser, a total service of 5 years alone is necessary. The rule also stipulates a pass in Accounts test (Lower) as additional qualification. 3. There were a lot of complaints from the employees in the categories of Junior Superintendent/Head Clerk that the Rule denied to them, the legitimate promotion prospects that were due to them and provided an easy avenue of promotion to persons appointed as Welfare Organisers. While Welfare Organisers with 5 years service were promoted to the post of Assistant Zilla Sainik Officer, Junior Superintendent/Head Clerks, would have to wait for seven years for their promotion. Though the above anomaly was pointed out to the Government, no action was taken to rectify the same. Therefore, the aggrieved persons W.P.(C) NO.35375 OF 2009 3 approached this Court by filing W.P.(C).No.31183/2005. The said writ petition was disposed of directing that the representation of the petitioners therein should be considered and disposed of within 3 months. Pursuant to the above directions, the Government issued a communication to the Director of Sainik Welfare, pointing out that the operation of the stipulations contained in the special rules regarding the period of service necessary for promotion to the post of Assistant Zilla Sainik Officer was causing disadvantage to one section of the employees. Therefore, a proposal was initiated for amending the special rules. A draft of the special rules was prepared and was communicated to the Director for finalisation. However, the matter was pending indefinitely, without any final decision being taken thereon. 4. The above state of affairs gave rise to another Writ Petition, W.P.(C)No.20541 of 2005. In the said writ petition, a submission was made before this Court that the Director W.P.(C) NO.35375 OF 2009 4 had already communicated his views to the Government, that the Government was looking into the matter and that a decision would be taken without delay. 5. On the basis of the above submissions, the writ petition was closed. Thereafter, there was another writ petition W.P.(C).No.9610/2008 where the complaint was that, in spite of the directions given by this Court, action regarding finalisation of amendments to the special rules were not being completed. Therefore, appropriate directions were sought from this Court. The said writ petition was disposed of by Ext.R1(a) Judgment dated 26/2/2009 directing the Government to finalise the proposed amendments and to issue a notification within a period of six months from the date of the said Judgment. However, when the amendments were not brought into force even within the time stipulated by Ext.R1(a), an extension of time was sought for by the Government. On the said petition for extension, as per Ext.R1(b), time was extended for a further W.P.(C) NO.35375 OF 2009 5 period of six months from 26/08/2009. It is submitted that thereafter, on 5/1/2010, amendments to the special rules have been brought into force. Accordingly, the qualifications that the special rules dated 7/11/1992 had prescribed, have been amended. 6. The case of the petitioner is that, the petitioner had acquired the qualification to be promoted as Assistant Zilla Sainik Officer on 22/9/2009, on which date he had completed 5 years of service as a Welfare Organiser. He has also passed, Account Test thereby satisfying all the qualifications prescribed by the earlier special rules. Consequently the petitioner was entitled to be promoted to the Post of Assistant Zilla Zainik Officer on 22/2/2009. According to him, one Mr.Unnikrishnan.D who was promoted to the post of Zilla Sainik Officer, became vacant in February 2009, and to the said vacancy, he should have been promoted. However, no Departmental Promotion Committee was convened by the respondent and his claim 6 W.P.(C) NO.35375 OF 2009 was not considered. According him, even though amendments to the special rules have been made, his entitlement for promotion to the vacancy would have to be considered with respect to the date of occurrence thereof and not with respect to the date of consideration of his claim for promotion. In other words, if a candidate was fully qualified to be promoted to the higher post on the date of occurrence of the vacancy, such person would have to be promoted first, even if a senior has acquired the same qualification later. Therefore, he claims that having become entitled to promotion as per the unamended rules, his claim for promotion has to be considered as on the date of occurrence of the vacancy, in accordance with the stipulations in the unamended rules. For the purpose, the petitioner claims that a lower Departmental Promotion Committee should be convened, the number of vacancies should be assessed and appointment should be made. 7. The learned Government Pleader has filed a W.P.(C) NO.35375 OF 2009 7 statement on behalf of the first respondent refuting the contentions of the petitioner. According to the counter affidavit, it is contended that since this Court had directed the finalisation of amendments to the special rules within a period of six months from the date thereof, as per Ext.R1(a) Judgment, no select list for promotion had been made on the basis of the pre-amended special rules. This was because of the fact that it was inappropriate to prepare a select list on the basis of the pre-amended rules at a time when the process of amendment of the special rules was in progress. Since, the procedure for finalising and bringing into force of the amended special rules was in progress, no promotion to the vacancies was made after a Departmental Promotion Committee was convened in 2009. According to the statement, the Departmental Promotion Committee (Lower) was convened on 19[th] January and 17[th] August 2009 and promotions to the post of Assistant Zilla Sainik Welfare Officer was effected from the select list prepared by the W.P.(C) NO.35375 OF 2009 8 Departmental Promotion Committee. One such notification dated 20/1/2009 has been produced as Ext.R1(c). Therefore, further promotions have been postponed till the special rules were suitably amended. It is contended that since the Departmental Promotion Committee (Lower) had been convened twice during the year 2009, no further vacancies were available for being filled up, as contended by the petitioner. Further, future vacancies can be filled up only in accordance with the provisions of the amended special rules. 8. Mr. Kaleeswaram Raj, the learned counsel for the petitioner has contended that the petitioner is a person who had become qualified for promotion by February 2009. According to him, a vacancy had arisen consequent to the promotion of one Mr. D. Unnikrishnan to the post of Zilla Sainik Officer, to which he was entitled to be promoted. The date of occurrence of the vacancy being in February 2009, his claim for promotion should be considered as on W.P.(C) NO.35375 OF 2009 9 the said date. In other words, claim of the petitioner for promotion should be considered in accordance with the unamended special rules and not in accordance with the amendments brought into force on 5/1/2010. In support of the above proposition, the learned counsel for the petitioner has relied on the decision of a Full Bench of this Court in **Varghese v. State of Kerala (1981 KLT 458 (F.B.)** . Considering the question as to whether the claim of a candidate for promotion should be considered as on the date of occurrence of the vacancy or on the date on which he is considered for promotion, Subramonian Poti (Ag. C.J. - as he then was) has made the following observation, expressing his agreement with the view expressed by another Division Bench; “We agree with the view expressed therein that it would make no difference whether the vacancies already exist or the vacancies occur after the juniors become qualified. If there is vacancy as and when a person W.P.(C) NO.35375 OF 2009 10 becomes qualified for being promoted to such vacancy he would be entitled to be considered for promotion in that vacancy. If there is no vacancy when a person becomes qualified for promotion and a vacancy arises while he remains qualified, as and when such vacancy arises his case for promotion calls for consideration”. 9. The same view has been taken in a later decision of this court in **Gopinathan Unnithan v. State of Kerala (1991 (2) KLT 112)** . Relying on the above decisions, the counsel for the petitioner has canvassed for the proposition that the petitioner was entitled to be considered for promotion to the post of Assistant Zilla Sainik Officer, as on the date of occurrence of the vacancy, which is sometime in February 2009, in accordance with the unamended special rules. He, therefore, prays for a direction to convene the Departmental Promotion Committee (Lower), to assess the number of vacancies that were available in February 2009 W.P.(C) NO.35375 OF 2009 11 and for the consideration of his entitlement to be promoted to one such vacancy. According to the counsel, in view of Rule 28(b)(i) (4)(d) of the Kerala State and Subordinate Service rules, 1958, Departmental Promotional Committee can be convened any number of times in an year and therefore, there is no impediment in the consideration of his claim for promotion. 10. According to the learned Government Pleader, Smt.Anu Sivaraman, the amendments to the Special rules were introduced to cure an anomaly that had existed in the earlier special rules. The Government decided that the anomaly required rectification. This Court had also directed that the amendments to the special rules should be effected within the time stipulated. Therefore, the amended special rules were brought into force to rectify the anomalous situation. In view of the fact that the amendments were finalised in a time bound manner, no select list of candidates for promotion was prepared as per the W.P.(C) NO.35375 OF 2009 12 unamended rules. However, when vacancies arose during 2009, the Departmental Promotion Committee (Lower) was convened on two occasions, on 19/1/2009 and thereafter on 17/8/2009. Promotions from the select list prepared by the Departmental Promotion Committee (Lower) were also effected. One such order has been produced as Ext.R1(c). Referring to Ext.R1(c), the counsel pointed out that the same is the select list for the year 2009 as mentioned therein, and not for any previous year. Thereafter, one Sri. Kuttan has also been given promotion pursuant to the meeting of the Departmental Promotion Committee (Lower) on 17/8/2009. Therefore, according to the learned Government Pleader, there are no further vacancies in existence to which the petitioner could be promoted. At present, since the amended special rules have been brought into force on 5/1/2010, no promotions are possible to be made in accordance with the pre-amended special rules. 11. I have heard Mr.Kaleeswaram Raj, the learned 13 W.P.(C) NO.35375 OF 2009 counsel appearing for the petitioner and the learned Government Pleader Smt. Anu Sivaraman, appearing for the respondent. I have also anxiously considered the rival contentions. 12. The provision contained in the unamended special rules was found to be anomalous by the Government for the reason that, the qualifications prescribed for promotion to the post of Assistant Zilla Sainik Officer conferred an unmerited advantage on persons belonging to the category of Welfare Organisers. Welfare Organisers were entitled to promotion to the post of Assistant Zilla Officer on completion of 5 years of service, provided the candidate had passed the account test (Lower). A person belonging to the cadre of Junior Superintendent/Head Clerk had to acquire a total service of 7 years of which at least 3 years had to be in the categories of Junior Superintendent and Head Clerk reckoned together. The Government felt that adherence to the above qualifications would result in the posts of W.P.(C) NO.35375 OF 2009 14 Assistant Zilla Sainik Officer being filled up only by persons promoted from the cadre of Welfare Organiser, thus denying chances of promotion to persons from the other feeder categories. In view of the anomalous situation, the Government decided to amend the special rules suitably. This Court had also directed such amendments to be made within a time frame. Since the Government was of the firm opinion that the provisions of the unamended special rules were resulting in conferring of an un-merited advantage on one category of posts, the Government did not make further promotions in accordance with the pre-amended special rules. The Government cannot be found fault with for having deferred further promotions until the amendments were brought into force. The petitioner is a person who is working as a Welfare Organiser. Though the unamended special rules are to his advantage, he cannot claim a right to promotion to the said post. Even when vacancies are in existence, the Government can decide not to make any 15 W.P.(C) NO.35375 OF 2009 promotions. In the present case, the Government had decided not to make any further promotions until the amended special rules were brought into force. Such decision is certainly justified in the facts and circumstances referred to above. 13. Ext.R1(c) shows that a meeting of the Departmental Promotion Committee (Lower) had been convened on 20/1/2009. Ext.R1(a) shows that a select list for the year 2009 was prepared by the said Departmental Promotion Committee. Accordingly, 3 persons were promoted to the vacancies that were in existence at that time. Thereafter, on 17/8/2009 yet another Departmental Promotion Committee was convened and a select list consisting of one person was prepared. The promotion on the basis of the said select list is also stated to have been effected. Therefore, the records show that the Government had made promotions to the vacancies that had arisen during the year 2009 also in spite of the fact that W.P.(C) NO.35375 OF 2009 16 amendments to the special rules were in the process of being finalised. The said promotions are not challenged by the petitioner. Therefore, the Government cannot be found fault with for not having promoted the petitioner on the ground that amendments were about to be brought into force. Though the petitioner has pointed out the existence of a vacancy from February 2009 onwards, it is pointed out by the learned Government Pleader that it is the vacancy that has been filled up from the select list prepared by the Departmental Promotion Committee that met on 17/8/2009. Consequently, no vacancy as pointed out by the petitioner is in existence at present. Therefore, it is contended that on facts also the petitioner is not entitled to any relief in this case. Since, the Departmental Promotional Committee was convened on 17/8/2009 and one person was promoted pursuant to the same, the contention of the learned Government Pleader appears to be true. There is no evidence or material before me to conclude that the above W.P.(C) NO.35375 OF 2009 **==> picture [13 x 9] intentionally omitted <==** assertion of the Government Pleader is not true. Therefore, I hold that the vacancy pointed out by the petitioner has been filled up pursuant to the Departmental Promotion Committee that was convened on 17/8/2009. 14. It is the contention of the counsel for the petitioner that promotions to the vacancies have to be made on the basis of the qualifications that are prescribed by the rules as on the date of occurrence of the vacancy and not as on the date of consideration of the eligibility of a person for promotion. Otherwise, it is pointed out that the authorities would be able to give promotions to persons of their choice, bypassing the claims of other eligible persons. There is no doubt regarding the legal position that promotions would have to be made on the basis of the eligibility criteria as on the date of occurrence of the vacancy. The above legal position has been settled with sufficient clarity by the decision relied on by the petitioner. However, in the present case since no vacancy has been shown to have W.P.(C) NO.35375 OF 2009 18 arisen before 5/1/2010 on which date amendments to the special rules have been brought into force, the claim of the petitioner can be considered only in accordance with the amended special rules. 15. Even if it is assumed that vacancies of Assistant Zilla Sainik Officer had arisen after the Departmental Promotion Committee was convened on 17/8/2009, the petitioner cannot claim promotion to one of the said vacancies, as of now. It is up to the Government to decide whether or not to fill up a vacancy at any particular point of time. In the present case the Government decided to make further promotions to the post of Assistant Zilla Sainik Officer only as per the amended special rules. The said decision as already noticed above, cannot be found fault with. Since the amended special rules have been brought into force on 5/1/2010, the claim of the petitioner that he should be considered in accordance with the provisions of the unamended special rules is unsustainable. Since the W.P.(C) NO.35375 OF 2009 19 amended special rules have been brought into force, any further promotions can be effected only in accordance with the said rules. The only right that the petitioner can claim is, not to be superseded by any Welfare Organiser who is senior to him who has acquired the qualification for promotion after him. 16. Since the petitioner has no case that any person who has acquired qualification for promotion after him is being sought to be promoted in preference to him, I refrain from considering the above aspect. The above being the position, I find that the petitioner is not entitled to any relief in this writ petition. 17. In the result, this writ petition fails and is accordingly dismissed. No costs. K.SURENDRA MOHAN JUDGE 20 W.P.(C) NO.35375 OF 2009 nl