## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT:**
## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN**
## **THURSDAY, THE 5TH DAY OF JANUARY 2017/15TH POUSHA, 1938**
## **WP(C).No. 11979 of 2007 (A)**
**----------------------------**
## **PETITIONER :**
**----------------------**
**SAJITHA T., W/O.M.G.VINOD KUMAR, RESIDING AT PRANAVAM MANGATHAYA ILLAM, PERUMANNA CALICUT.**
## **BY ADV. SRI.P.V.KUNHIKRISHNAN**
## **RESPONDENT(S):**
**----------------------------**
## **1. THE COMMISSIONER,**
- **HR & CE (ADMINISTRATION) DEPARTMENT,**
- **CIVIL STATION, KOZHIKODE.**
**2. DIRECTOR, STATE INSURANCE DEPARTMENT, TRIVANDRUM.**
**3. DISTRICT INSURANCE OFFICER, KERALA STATE INSURANCE DEPARTMENT, MALAPPURAM.**
## **4. K.SATHEESHKUMAR, NOW WORKING AS EXECUTIVE OFFICER, MAMMIYUR DEVASWOM, GURUVAYOOR.**
**R1 TO R3 BY SR GOVERNMENT PLEADER SRI.BIJOY CHANDRAN BY SRI.K.MOHANAKANNAN,SC, SRI.R.LAKSHMI NARAYANAN,SC, SRI.V.KRISHNA MENON, SC,**
**THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23-11-2016, THE COURT ON 05-01-2017 DELIVERED THE FOLLOWING:**
**sts**
## **WP(C).NO.11979/2007**
## **APPENDIX**
## **PETITIONER'S EXHIBITS:**
- **P1 COPY OF THE JUDGMENT IN WP(C).NO.17723/2003 DATED 29/8/2003**
- **P2 COPY OF THE REPRESENTATION DATED 5/10/2004**
- **P3 COPY OF THE JUDGMENT IN WPC.NO.5226/2005 DATED 15/2/2005**
- **P4 COPY OF THE ORDER NO.HRJI/2883/2005(2) DATED 2/2/2006 OF THE 1ST RESPONDENT**
- **P5 COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT DATED 5/5/2006**
- **P6 COPY OF THE ORDER NO.HRJI-3930/2006 DATED 5/5/2007 OF THE 1ST RESPONDENT**
- **P7 COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER DATED 31/03/2009 TO THE 1ST RESPONDENT**
- **P8 COPY OF THE REPLY DATED 14/05/2009 FROM THE OFFICE OF THE 1ST RESPONDENT**
## **RESPONDENT'S EXHIBITS:**
## **NIL**
## **/TRUE COPY/**
## **P.A.TO JUDGE**
**sts**
## **ANU SIVARAMAN, J.**
**= = = = = = = = = = = = = = = = W.P.(C).No.11979 of 2007 = = = = = = = = = = = = = = = = Dated this the 5[th] day of January, 2017**
## **JUDGMENT**
- 1.This writ petition is filed with the following prayers:-
- a) Call for the entire records, which leads to Exhibit P6 and issue a writ of certiorari quashing the same.
- b) Issue a writ order or direction, directing the 1[st] respondent to promote the petitioner with effect from the date of her acquiring test qualification in M.O.P and Account Test (Lower) in accordance with her seniority and occurrence of vacancy.
- c) Issue a writ order or direction directing the 1[st] respondent to consider and pass orders on Exhibit P5 after hearing the petitioner and the 4[th] respondent.”
2.It is contended by the petitioner that she is presently working in the State Insurance Department. She was initially appointed as LDC in the HR & CE Department on 08.10.1996. She passed the Manual of Office Procedure and Account Test in 1996 and became eligible for promotion as UDC in the year 1998. It is stated that promotion to the post of UDC in the HR & CE Department was denied on the plea that she had not passed the HR & CE test for promotion. By Exhibit P1 judgment dated 29.08.2003, a Division Bench of this Court
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held that the respondents are not justified in insisting on a pass in HR & CE test as a condition for promotion to the post of UDC in the HR & CE Department. The petitioners in the said writ petition were directed to be promoted to the post of UDC with effect from the date of their acquiring test qualification in MOP and Account Test.
3.In the meanwhile, the petitioner had sought an interdepartmental transfer and had been relieved from the HR & CE Department on 18.05.1999. After the date of Exhibit P1 judgment, the petitioner was promoted as UDC in the State Insurance Department on 30.11.2003. Thereafter, the petitioner submitted Exhibit P2 representation dated 05.10.2004 seeking promotion as UDC in the HR & CE Department. By Exhibit P3 judgment dated 15.02.2005, this Court directed the 1[st] respondent Commissioner to take up the representation preferred by the petitioner for consideration and to pass appropriate orders thereon within two months from the date of receipt of a copy of the judgment. Exhibit P4 is the order passed by the 1[st] respondent dated 02.02.2006. It
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was stated therein that though the petitioner was qualified for promotion as UDC from 27.11.1988, the vacancy of UDC to which the petitioner could be accommodated arose only on 07.07.2000 and since the petitioner had left the department on 18.05.1999 on her own request her claim for promotion cannot be considered. The petitioner filed Exhibit P5 representation pointing out that her junior had been promoted on 10.01.1999 and therefore she would be entitled for promotion with effect at least from that date. By Exhibit P6, the said claim of the petitioner was also considered. It was found that a vacancy was in existence on 10.01.1999 to accommodate the petitioner as UDC. However, since the petitioner had been relieved from the department on 18.05.1999 on interdepartmental transfer on her own request, it was stated that her lein would be retained until she is confirmed in the department to which she was transferred or for a period of five years, whichever is earlier. It is, therefore, found that the petitioner, who had raised Exhibit P2 claim for promotion only on 5.10.2004, cannot be granted the benefits of retrospective promotion. Exhibits P4 and P6 were under challenge in this writ petition.
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- 4.Heard the learned counsel for the petitioner and the learned Government Pleader.
5.It is submitted by the learned counsel for the petitioner that the fact that the petitioner had been relieved from the department on 18.05.1999 and that she was no longer working in the department had been noticed by this court while rendering Exhibit P3 judgment. However, this Court had directed the consideration of the petitioner's claim for promotion as UDC in the HR & CE Department in the light of Exhibit P1 judgment. In the above view of the matter, it is contended that the rejection of the petitioner's claim on the ground that she had been relieved on 18.05.1999 and had preferred the representations only on 05.10.2004 is totally unsustainable and it is contrary to the directions contained in Exhibit P3 judgment. The learned counsel further contends that the petitioners had preferred representations earlier also while working in the HR & CE Department seeking promotion as UDC. It is submitted that the only fact that she did not approach this Court would not be a ground to deny the
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promotions due to her on account of her having acquired the requisite qualifications.
6.The learned Government Pleader, on the other hand, submits that the petitioners before this Court in Exhibit P1 judgment and the petitioner in this writ petition stands totally on a different footing. It is contended that the petitioners in W.P. (C).No.17723 of 2003 were persons who had continued in the department and had claimed promotion as UDC on the basis of their date of passing the MOP and Account Test. They had challenged the prescription of the HR & CE test as a qualification for their promotion. By Exhibit P1 judgment dated 29.08.2003, their writ petition was allowed and it was held that pass in HR & CE test is not prescribed as a necessary qualification for promotion as UDC. It is contended that the claim raised by the petitioner was directed to be considered by this Court in Exhibit P3 judgment. Such consideration could have been only on the eligibility of the petitioner being established. The 1[st] respondent had considered the claims raised by the petitioner and had found
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that since she had been relieved from the department on 18.05.1999 and had raised her claim only in the year 2004, she could not be held to be entitled to the promotion. It is further submitted that the petitioner had accepted a promotion as UDC in the department to which she was transferred on 30.11.2003. Since Exhibit P2 representation is dated 05.10.2004, it is contended that any claim she had for promotion in the HR & CE department had been lost by the time she raised her claim by Exhibit P2. The learned Government Pleader relies on the decision of this Court reported in **Union of India v. Tarsem Singh** [2009(1) KLT 101 (SC)] to contend that the belated claims can be considered only in a case where the claim is based on a continuing wrong. It is further stated that if the order impugned affects rights of the third parties relief can be refused.
- 7.I have considered the contentions advanced on either side. It is admitted by the petitioner that she had been relieved from the HR & CE department on 18.05.1999. She has also been promoted as UDC in the State Insurance Department on
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30.11.2003. Exhibit P1 judgment was rendered in a writ petition filed by the U.D.Clerks who remained in HR & CE department. The said writ petition was filed in the year 2003. It is by Exhibit P1 dated 29.08.2003 that a Division Bench of this Court held that the test in HR & CE Act and Rules is not a prescribed qualification for promotion as UDC. Even after the declaration of law by Exhibit P1, the petitioner accepted the promotion as UDC in the new department on 30.11.2003. Thereafter, she preferred Exhibit P2 representation which was directed to be considered by Exhibit P3 judgment. The direction for consideration of a claim can, by no stretch of imagination, be held to be a positive finding with regard to the eligibility of the petitioner for retrospective promotion. It is seen from Exhibits P4 and P6 that the claim raised by the petitioner had been considered by the 1[st] respondent. It was found that the petitioner, having been relieved from the Department on 18.05.1999, her claim raised belatedly could not be considered favourably. Exhibit P7 request made before the department is also long after the rejection of the petitioner's claim in 2006.
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8.In the above view of the matter, I am of the opinion that Exhibits P6 and P7 which are sought to be relied on to contend that the petitioner had preferred a claim for promotion before she left the HR & CE Department cannot come to the aid of the petitioner in that regard. The only material before this Court being Exhibit P2 request for promotion made on 05.10.2004, I am of the opinion that the claim raised by the petitioner was belated and Exhibit P6 order rejecting the claim on the ground that it is belated cannot be found fault with. In the above view of the matter, I find no illegality on Exhibit P6 order issued by the 1[st] respondent, who has considered the claim raised by the petitioner and rejected the same perfectly on tenable grounds.
The writ petition, therefore, fails and is accordingly dismissed.
sd/- **Anu Sivaraman, Judge**
sj
