ROSAMMA MATHEW Vs. STATE OF KERALA

JUDGEMENT

(1.) Both the petitioners, at the time of filing this Writ Petition were working as Senior Supervisors in the 5th respondent society. It is the case of the petitioners that they were entitled to get promotion to the said post based on their seniority in the post of Senior Supervisor as per the rules of the 5th respondent. The petitioners' grievance is that their juniors (respondents 6 to 12) were promoted to the post of AMPOs ignoring the superior claims of the petitioners based on seniority. Proceedings dated 30.12.1994 (Ext. P8) is the promotion order issued by the 5th respondent by which respondent No.6 and respondents 10 to 12 were promoted as AMPOs. Similarly, by another order dated 6.7.1992 (Ext. R5(a)) respondents 7 to 9 were also promoted as AMPOs earlier. The petitioners have filed this Writ Petition seeking for a writ of mandamus directing respondents 2, 3 and 4 to direct the 5th respondent to rescind the promotion granted to respondents 6 and 10 to 12 and direct respondents 2, 3 and 4 to instruct the 5th respondent to make promotion by framing rules for the feeder category and in accordance with the well accepted norms. There is also a prayer for a declaration that petitioners have got preferential right and claim for promotion before giving promotion to their juniors.

(2.) A counter affidavit is filed on behalf of the 5th respondent. Along with the said counter affidavit copy of the promotion policy of the employees under standing orders (Ext. R5(b)), copy of the promotion order dated 6.7.1992 (Ext. R5(a)), copy of the written objection dated 24.4.1995 (Ext. R5(c) filed by the 5th respondent and a copy of the order dated 7.10.1995 (Ext. R5(d)) were also produced. The stand of the 5th respondent in the counter affidavit is that respondents 7 to 9 were promoted as AMPOs vide order dated 6.7.1992 as per the promotion policy applicable to the workers of the 5th respondent. It is also stated that the promotion to the post of AMPOs are being made by selection on the basis of ability and experience and that the minimum requirement is 3 years as Senior Supervisor (P & I). It is also stated that respondents 6 and 10 to 12 were promoted as AMPOs as per order dated 30.12.1994 and that the petitioners were found not suitable for promotion by the Departmental Promotion Committee. It is also stated that as per Cl.5.8 of the promotion policy read along with Ext. R5(b) seniority alone is not the criteria for promotion. However, it is admitted in the said counter affidavit that the 1st petitioner is senior to respondents 6 to 12 and the 2nd petitioner is senior to respondents 11 and 12 but it is stated that seniority has got no relevance at all. It is also stated that the petitioners filed petitions Ext. P9 and P9(a) before the 3rd respondent but the said respondent directed the 4th respondent to decide the issue, that the 6th respondent filed an objection and that after hearing all concerned the 4th respondent passed an order dated 7.10.1995 Ext. R5(d) rejecting the claims of the petitioners.

(3.) I have heard Sri. T.V. Ajayakumar, learned counsel for the petitioners, learned Government Pleader appearing for respondents 1 to 4, Sri. K. Anand, learned standing counsel appearing for the 5th respondent and Sri. M.V.S. Namboodiri, learned counsel for respondents 7 to 9 and the learned counsel for respondents 11 and 12. The counsel for the petitioners submits that as per the promotion policy of the 5th respondent as evidenced by Ext. R5(b) promotion to higher posts under the 5th respondent are based on seniority cum merit. The counsel submits that the expression "seniority cum merit" has been considered by the Supreme Court in (1998) 6 3CC 720 in 2000 (6) SCC 698 and in 2002 (3) KLT SN 58 at Page 42. The counsel based on the aforesaid decisions submits that there is no question of comparative assessment of the merits of the senior supervisors for the purpose of giving promotion to the post of AMPOs. The counsel submits that in the instant case neither the 5th respondent nor the Departmental Promotion Committee has considered the fitness of the persons for holding the higher posts and that they have solely decided the issue based on comparative assessment of the merits of the incumbents. The counsel submits that the 1st petitioner is entitled to get promotion to the post of AMPO with effect from 6.7.1992 and the 2nd petitioner is entitled to get promotion with effect from 30.12.1994 the respective dates on which their juniors were promoted to the higher posts.