NIJEESH K.K., UPPER DIVISION CLERK, MUNSIFFS COURT Vs. THE HIGH COURT OF KERALA, REPRESENTED BY THE REGISTRAR, (SUBORDINATE JUDICIARY), ERNAKULAM, KOCHI

JUDGEMENT

(1.) The petitioner belongs to Scheduled Caste community. He entered service as LD Clerk in the Civil Judicial Department in Kozhikode District on 23.3.2000. His probation was declared with effect from 23.4.2002 as per order dated 16.8.2002 of the District Judge, Kozhikkode. When a vacancy of UD Clerk arose on 1.5.2002, his immediate junior who was test qualified, was promoted. He passed the obligatory departmental test conducted by the Public Service Commission on 31.12.2003. He got promotion as UD Clerk on 8.7.2004. The grievance of the petitioner herein is that he was denied the benefit of temporary exemption from acquiring test qualification in terms of Rule 13A(1)(a) of the Kerala State and Subordinate Services Rules (KS &SSR for short), according to which a scheduled caste employee shall not be denied promotion only for want of test qualification in case he is eligible for promotion on the basis of his seniority on condition that he will be reverted in case he does not qualify in the test within a period of three years.

(2.) According to the petitioner he came to know about the exemption available to him under the provisions contained in Rule 13A (1)(a) of the KS &SSR, only when he happened to see another order passed in favour of a scheduled caste employee in another department. Immediately on coming to know about this he submitted Ext.P2 representation on 23.11.2007 before the District Judge, Kozhikkode. According to the petitioner, on declaration of his probation on 23.4.2002, and on the basis of the temporary exemption he was entitled to be promoted as UD Clerk against the vacancy which arose on 1.5.2002. But he was granted promotion as UD Clerk only with effect from 8.7.2004, after he passed the test. It is the case of the petitioner that as on the date of his representation, 29 of his juniors were granted promotion as UD Clerk during the period from 1.5.2002 to 23.11.2007 and all of them were continuing as UD Clerks. However the District Judge rejected his representation as per Ext.P3 saying that the SC/ST employees who entered service on or after 1.1.1986 are not entitled to any test exemption and hence he was not entitled to promotion as claimed by him. Thereupon he submitted Ext.P5 appeal before the Registrar of the High Court on 23.1.2008. On receipt of the appeal, the Registrar of this Court called for a report from the District Judge and the District Judge had as per Ext.P8 forwarded a report regarding his juniors who got promotion after 1.5.2002 and before promotion was granted to the petitioner. However by Ext.P9 order dated 21.3.2009, the Registrar of the High Court rejected the representation, saying that the representation claiming promotion with effect from 1.5.2002 was submitted only after a period of 5 years and the reason stated by him as to the long delay is ignorance of rule position, which cannot be accepted. It was also stated that the petitioner claimed promotion and seniority over 29 staff members in the cadre of UD Clerks. Relying on the judgments of this Court in Ushadevi Vs. State of Kerala [2002 (1) KLT 615] , Radhakrishnan Nair & others Vs. State of Kerala [1988 (2) KLT SN11] and P.S.Gopinathan Vs. State of Kerala & Others [ ILR 2008 (2) Kerala 682] it was stated that the petitioner acquiesced to his position without raising his claim at the proper time and accordingly the appeal was rejected in the light of those decisions. This writ petition is filed at this stage challenging the orders Exts.P3 and P9.

(3.) The petitioner relies on Ext.P10 judgment of this Court in W.P. (C) No.11804 of 2007 as well as the judgments Exts.P4 and P11 judgments. In Ext.P10 judgment, this Court had taken note of the constitutional obligation and the purpose behind granting such benefits to the members of Scheduled Castes and directed the Government to consider the claims of the petitioner therein despite the delay in raising their claims observing that their statutory rights were denied by the authorities who had a statutory duty to provide the same when they were sidelined and marginalised from the main stream for centuries.