W.P.(C).No.82 of 2008 (I)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE V.GIRI** **WEDNESDAY, THE 2ND APRIL 2008 / 13TH CHAITHRA 1930** ## **WP(C).No. 82 of 2008(I)** **--------------------------------** ## **PETITIONERS:** - **-------------------** **1. A.A.SHAJANA, JUNIOR SUPERINTENDENT, CENTRAL STAMP DEPOT, THIRUVANANTHAPURAM.** **2. M.MOHAMMED BASHEER, DEPUTY TAHSILDAR (RR), TALUK OFFICE, CHITTOOR, PALAKKAD.** **3. N.SUNDARAN ACHARI, DEPUTY TAHSILDAR, TALUK OFFICE, MEENACHAL, PALA.** **4. M.SASIKUMAR, DEPUTY TAHSILDAR (RR), TALUK OFFICE, THALASSERY.** **5. K.N.YOUSAFALI, JUNIOR SUPERINTENDENT, COLLECTORATE, MALAPPURAM.** **6. K.JANAKI, JUNIOR SUPERINTENDENT, TALUK OFFICE, ERNAD, MALAPPURAM.** **BY ADV. SRI.N.SUGATHAN SMT.VARSHA BHASKAR SRI.S.PRASANTH (AYYAPPANKAVU)** ## **RESPONDENTS:** **----------------------** **1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM.** **2. THE COMMISSIONER OF LAND REVENUE, THIRUVANANTHAPURAM.** **BY ADV. SRI.N.VIMALAN GOVERNMENT PLEADER SRI. P.NANDAKUMAR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/04/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C) NO: 82/2008 i** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** ## **EXT.P1. COPY OF THE PROCEEDINGS DT. 2/6/2007 OF THE R2.** **EXT.P1A. COPY OF THE FINAL SENIORITY LIST OF DEPUTY TAHSILDARS FOR THE PRIOD FROM 1/07/2004 TO 30/6/2005.** **EXT.P2. COPY OF THE NOTIFICATION DATED 19/11/2007.** **EXT.P3. COPY OF THE ORDER NO. LR(E) 2/5/07 DT. 21/11/2007 OF R2.** **EXT.P4. COPY OF THE GO RT NO. 4779/07/RD DT. 30/11/2007.** **EXT.P5. COPY OF THE REPRESENTATION DT. 18/12/2007 OF THE P4.** **EXT.P6. COPY OF THE JUDGMENT DT. 19/11/2007 IN WPC NO. 23339/2007.** **EXT.P7. COPY OF THE PROCEEDINGS NO. LR(T) 3/15290/2006 DT. 26/5/2007 OF THE ADDL. LAND REVENUE COMMISSIONER.** **EXT.P8. COPY OF THE JUDGMENT DATED 13/11/2007 IN WPC NO. 21147/2006.** ## **RESPONDENT'S EXHIBITS** **NIL.** _True copy_ _tga_ ## **V.GIRI, J.** ## **-------------------------** ## **W.P.(C).No.82 of 2008 ------------------------Dated this the 2[nd ] day of April, 2008.** ## **JUDGMENT** The petitioners are Deputy Tahsildars in the Revenue Department aspiring for promotion to the post of Tahsildars. They are included in Ext.P1 final seniority list of Deputy Tahsildars, pursuant to the recommendations of the Departmental Promotion Committee. They were included in Ext.P2 dated 17.11.2007. Ext.P2 was operated and 40 persons were promoted as per Ext.P3 order. The petitioners contend that there were 14 more vacancies in the post of Tahsildars and three vacancies arose in December, 2007. Altogether 17 vacancies of Tahsildars were available even in December, 2007. But the Government did not effect further promotions to the post by operating Ext.P2 select list and hence the writ petition. 2. On 21.1.2008, this court directed the Government Pleader to get instructions as to whether there are vacancies in the post of Tahsildar consequential upon promotion of 10 persons as Deputy Collectors as per Ext.P4. ## **W.P.(C).NO.82/08** 3. A statement has been filed on behalf of the respondents. It is stated therein that 17 vacancies arose during the month of December, 2007, pursuant to Ext.P4 Government Order and due to retirement on 30.11.2007. But promotions were not effected. The reasons given by the Government for not effecting such promotions are (a) the seniority list in the cadre of Deputy Tahsildar was not finalised/revised, as directed by this court (b) that the claim made by one G.Viswanatha Pillai as regards the revised seniority list of Upper Division Clerk/Village Officer is to be considered pursuant to Ext.P6 judgment. 4. A reply statement has been filed by the petitioners. I heard learned counsel Mr.N.Sugathan and learned senior Government Pleader Mr.Nandakumar and Sri.N.Vimalan learned counsel for the additional 4[th] respondent. 5. Learned Senior Government Pleader Mr.Nandakumar submits that it is up to the Government to decide whether the existing vacancies in any cadre should be ## **W.P.(C).NO.82/08** **:: 3 ::** filled up or not. Government cannot be compelled to fill up any post. I find force in this submission. It is obviously open to the Government to decide whether the vacancies in the post of Tahsildar are to be filled up though they are admittedly available since December 2007. 6. Learned counsel for the petitioners Mr.Sugathan submits that notwithstanding the above position, the reasons now afforded by the Government not to fill up the vacancies as such cannot be considered as tenable. Two reasons have been given. Firstly, the possibility of a revision of the seniority list of Deputy Tahsildars consequent upon a revised seniority list of Upper Division Clerks/Village Officers. As it is Ext.P1 will have to be treated as final seniority of Deputy Tahsildar and Ext.P2 the select list in relation to the post of Tahsidar as such. Ext.P2 has been operated upon. Mr.Sugathan refers to the judgment in **Thankaraj v. State of Kerala {ILR 1996(3) Kerala 733}** and **M.P.Raghavan Nair v. State Insurance Officer {1971 KLT 583}** to contend for the position that a revision in the seniority list of **W.P.(C).NO.82/08** **:: 4 ::** UDC will not, by itself, entail a revision in the seniority list of Deputy Tahsildars. It is not necessary to decide this issue, at this stage because, as on the date of Ext.P1, the seniority of Deputy Tahsildars is final and Ext.P2 is the select list, which was published pursuant to the recommendation of the Departmental Promotion Committee. Ext.P2 has been operated upon already. 40 persons have been promoted pursuant to Ext.P2 to the said post. 7. Insofar as the claim of sri.G.Viswanatha Pillai is concerned, Ext.P6 judgment, only directs his claim for promotion to the Tahsildar to be considered in accordance with the final seniority list. 8. Though the reasons as such now afforded, on behalf of the Government, not to fill up the vacancies in the post of Tahsildars does not seem to be appealing, the Government cannot be compelled to fill up the vacancies of Tahsildars. No doubt, the post of Tahsildar is important in the Department of Revenue Administration. But nevertheless, it would still be within the competence of the Government to ## **W.P.(C).NO.82/08** **:: 5 ::** refrain from filling up the posts if there are reasons which justifies such a decision. In my view, the Government should take a decision within a time frame as to whether it is necessary to fil up the existing vacancies of Tahsildars and if they take a decision to do so, then it shall be done by operation of Ext.P2 select list as long as the same is in force. Learned Senior Government Pleader Mr.Nandakumar submits that Ext.P2 cannot be considered to be as final and it is always open to the Government to exercise its powers under Rule 30 of Part II of KSSR in relation to the said seniority list. The question whether the Government has the power to revise Ext.P2 in exercise of the powers under Rule 30, need not be decided at this stage. But, I make it clear that operation of Ext.P2 select list is conditional upon the currency and validity of the same as such. 9. In the result, the writ petition is disposed of directing the 1st respondent to take a decision as to whether it is necessary to fill up the existing vaancies of Tahsidlars in the Revenue Department, and it shall be done within two ## **W.P.(C).NO.82/08** months from the date of receipt of a copy of this judgment. If the Government takes a decision to fill up the vacancies, it shall be done in accordance with law by operation of Ext.P2 select list, provided the same is in tact and operative even as on the said date. If the Government decides not to fill up the vacancies, then reasons, which persuades the Government to come to such a decision, shall be communicated by an order, to the petitioners within the said time. The petitioners shall produce a copy of this judgment along with a copy of the writ petition and a representation before the 1[st] respondent to enable the Government to take such a decision. Sd/- **(V.GIRI) JUDGE** sk/ **//true copy//**