P.K. NIRMALA, JUNIOR SUPERINTENDENT, WATER SUPPLY DIVISION Vs. KERALA WATER AUTHORITY, JALA BHAVAN, THIRUVANANTHAPURAM AND OTHERS

JUDGEMENT

(1.) The petitioner's grievance is in relation to the promotion to the post of Divisional Accountant in the first respondent Kerala Water Authority. The petitioner had initially entered the service as Lower Division Clerk (L.D.C) in the year 1975 and she was thereafter promoted as Upper Division Clerk (U.D.C) in the year 1989. Further, she was later promoted as Head Clerk and therefrom he was promoted to the cadre of Junior Superintendent as per Exhibit-P5 proceedings dated 24.10.2007. According to the petitioner, she is eligible and entitled to be considered for promotion to the next category of promotion of the post of Divisional Accountant, for which pass in Account Test (Higher) conducted by the Kerala Public Service Commission has been prescribed as a mandatory qualification. According to the petitioner, she had successfully qualified in the various papers relating to the Account Test (Higher) conducted by the Kerala Public Service Commission and the details in that regard are as follows: <FRM>JUDGEMENT_274_LAWS(KER)5_2018_1.html</FRM>

(2.) Exhibits-P1 to P3 are gazette notifications, which show that the petitioner has duly passed the above-said papers/examinations relating to the Account Test (Higher). It is the further specific case of the petitioner that the above-said qualifications acquired by the petitioner as per Exhibits-P1 to P3 were duly apprised before the competent authorities of the respondent Water Authority and have been duly endorsed in the petitioner's service book as per Exhibit-P4. That though the petitioner had acquired the above-said qualification of Account Test (Higher) in the year 1990-93, the petitioner was considered for due promotion to the post of Divisional Accountant. According to the petitioner, the competent authorities of the respondent Kerala Water Authority unnecessarily insisted that the said qualifications acquired by the petitioner should be made available in the certificate to be issued by the Kerala Public Service Commission, which is the authority to conduct such examination and in the meanwhile, the juniors of the petitioner in the category of Junior Superintendent were promoted to the higher post of Divisional Accountant ignoring the superior claim of the petitioner. By Exhibit-P11 proceedings dated 16.2.2010, the second respondent Chief Engineer, Human Resources Development Department of the Kerala Water Authority, had issued the list of Junior Superintendents, who are eligible to be promoted to the post of Divisional Accountant as on 1.2.2010 and serial No. 8 thereof, one Smt. K.G. Thankamma, who is junior to the petitioner in the category of Junior Superintendent, has been included in the said list and the petitioner has been illegally excluded from the said Exhibit-P11 list. Based on Exhibit-P11 list, the competent authorities of the respondent Water Authority had issued Exhibit-P13 proceedings dated 9.4.2010, whereby juniors to the petitioner like Smt. K.G. Thankamma have been promoted to the post of Divisional Accountant. In that regard, it is pointedly argued by the petitioner that Exhibit-P10 is the seniority list of Junior Superintendents as on 1.09.2009, which has been issued by the competent authority of the Kerala Water Authority and therein, the petitioner (Smt. P.K. Nirmala) has been assigned serial No. 34. Whereas in Exhibit-P11 list, which has been issued by the respondent Water Authority showing the names of the persons, who are to be promoted as Divisional Accountant, seniority Serial Nos.8 to 33 of Exhibit-P11 are assigned serial Nos.35, 37, 38, 39, 42, 44, 45, 46, 47, 50, 53, 55, 56, 59, 62, 64, 65, 66, 67, 68, 75, 77, 78, 79, 85 and 94 respectively of Exhibit-P10 seniority list. It is thus urged by the petitioner that all the incumbents from serial Nos.8 to 33 shown in Exhibit-P11 are juniors to the petitioner in the category of Junior Superintendent and that, as the petitioner had acquired all the qualifications prescribed for the post of Divisional Accountant prior to the arising of the vacancies in the said post, the petitioner is entitled to be regularly or provisionally promoted to that post in preference to her admitted juniors. That the petitioner was illegally excluded from Exhibit-P11 list by the competent authorities of the respondent Water Authority mainly on the ground that the petitioner had made available the requisite certificate from the Kerala Public Service Commission to show pass in the various papers of the Accounts Test (Higher), even though she had produced Exhibits-P1 to P3 gazette notifications showing passing of those examinations, which have been duly endorsed in her service book as per Exhibit-P4. Based on Exhibit-P11 list, the second respondent Chief Engineer has granted promotions to the post of Divisional Accountant to the petitioner's admitted juniors like Smt. K.G. Thankamma, Smt. C.K. Kumari Renuka, Sri. P. Vinod Kumar, Sri. A. Sasikumar, Sri. P. Abdul Azeez, Smt. Nirmala Devi as per Exhibit-P13. The above referred incumbents are placed as serial Nos.8 to 13 of Exhibit-P13 promotion order, who are admittedly juniors to the petitioner inasmuch as they are assigned Seniority Serial Nos.35, 37, 38, 39, 42 and 44 in Exhibit-P10 seniority list, wherein the petitioner is given serial No. 34. That immediately after Exhibit-P11 list dated 16.2.2010, the petitioner has acquired Exhibit-P18 certificate, which was issued by the Kerala Public Service Commission on 25.3.2010 showing the details of her passing various papers in the Account Test (Higher) and Exhibit-P18 certificate dated 25.3.2010 has been issued even before the issuance of the impugned Exhibit-P13 promotion order dated 9.4.2010.

(3.) Being aggrieved by Exhibit-P13 order granting provisional promotion to the petitioner's admitted juniors, the petitioner had preferred Exhibit-P14 representation dated 16.7.2010 to the Managing Director of the first respondent Kerala Water Authority, pointing out the above aspects and praying to promote her as Divisional Accountant, especially taking into consideration the fact that the petitioner has to retire from service on 31.3.2011, etc. It appears that Exhibit-P14 representation was forwarded to the competent authority of the respondent Water Authority as per Exhibit-P15 proceedings dated 7.8.2010, but there was no effective action thereon. Exhibit-P16 is the final seniority list issued on 29.7.2010 purportedly showing the names of incumbents in the post of Junior Superintendent who are eligible to be promoted to the post of Divisional Accountant as on 15.6.2010. In Exhibit-P16, the name of the petitioner has been shown as Serial No. 7 thereof. By Exhibit-P17 order dated 30.9.2010, serial Nos.1, 2 and 3 of Exhibit-P16 has been granted provisional promotion to the post of Divisional Accountant. It is the specific case of the petitioner that serial Nos.1 and 3 of Exhibit-P17 (respondents 4 and 5), have passed the Account Test (Higher) only in April, 2010, which is much after the acquisition of the qualification by the petitioner and after the occurrence of the vacancies against which they have been promoted. Later, the petitioner has submitted Exhibit-P19 representation dated 26.3.2010 to the Chief Engineer of the respondent Kerala Water Authority praying to promote her as Divisional Accountant in view of the promotions so granted to the admitted juniors of the petitioner. Along with Exhibit-P19, the petitioner had also produced Exhibit-P18 certificate dated 25.3.2010 issued by the Kerala Public Service Commission showing that the petitioner had duly passed all the examinations which were conducted in November 1990, June 1991 and June 1993. It is the case of the petitioner that no action has been taken on the representations of the petitioner given as per Exhibit-P14 and Exhibit-P19 and that the petitioner had subsequently retired from service on 31.3.2011. It is in the light of these facts and circumstances that the petitioner has filed the instant Writ Petition (Civil) on 24.2.2011 with the following prayers :