KURIEN JOSEPH Vs. STATE OF KERALA AND OTHERS

JUDGEMENT

(1.) In O. P. 16453/94, the petitioner mainly seeks seniority in the cadre of Manager Grade I above respondents 3 and 4 therein who are the respective petitioners in O.P. 14886/96 and O.P. 14975/96. Petitioner in O.P. 16453/94 also challenges Ext. P19 wherein the petitioner in O.P. 14886/96 has been assigned rank and seniority over him in the cadre of Manager Grade I based on the judgment in O.P. 9358/84. Later, Government passed Ext. P5 order marked in O.P. 14886/96 exempting the petitioner in O.P. 16453/94 from possessing an obligatory qualification for the post of Manager Grade I in terms of Ext. P1 in O.P. 14886/96 and giving eligibility for promotion and seniority in the cadre of Manager Grade I from 28-8-81 onwards. Again, in implementation of the orders in Ext. P5, Ex. P6 order dated 23-9-96 was issued promoting the petitioner in O.P. 16453/94 as Joint Director. In the above circumstances, O.P. No. 16453/94 has become infructuous as the petitioner has got seniority and promotion over respondent Nos. 3 and 4.

(2.) When those orders are passed, respondents 3 and 4 in O.P. 16453/94 have filed O.P. Nos. 14886/96 and 14975/96 challenging Exts. P5 and P6 marked in O.P. No. 14886/96. Petitioner in O.P. 16453/94 is arrayed as 3rd respondent in this original petition. Therefore, the validity of Exts. P5 and P6 has to be examined. The parties and documents are referred as arrayed in O.P. 14886/96.

(3.) The petitioners is O.P. 14886/96 and 14975/96 (hereinafter referred to as 'the petitioners were direct recruits in the category of Manager Grade III in the year 1977. The 3rd respondent was a direct recruit in the category of L.D. Clerk in the year 1971. Lower Division Clerks are also entitled for promotion as Manager Grade III. The 3rd respondent in O.P. 14886/96 got such promotion on 2-11-74. Thus, in the category of Manager Grade III, the 3rd respondent is senior to the petitioners. But, while continuing as Manager Grade III the 3rd respondent was reverted on the ground that he did not possess the training in Food Service Management. It was agitated by the 3rd respondent. That finally resulted in Ext. R3 (g) dated 22-3-82 (in O.P. 14886/96) to the effect that the reversion of the 3rd respondent from the post of Manager Grade III was not in order. Therefore, it has to be taken that the 3rd respondent has continuous service as Manager Grade III from 2-11-74, and he is thus senior in that category to the petitioners. In the meantime, the petitioners were promoted as Manager Grade II in the year 1981; when the 3rd respondent was suffering reversion as mentioned above. The 3rd respondent was promoted as Manager Grade I on 28-2-83. By that time, the petitioners had already been promoted as Manager Grade I on 31-1-81. On the basis of Ext. R3(g), the 3rd respondent was not entitled to earlier promotion than the petitioners as the 3rd respondent did not possess the training in Food Service Management (hereinafter referred to as 'F.S.M. Training). Exhibit P1 is the Government order prescribing method of appointment and qualification to the post of Manager Grade I. As per the same, an incumbent should have passed SSLC or equivalent and should have ten years continuous service in the Tourist Department with necessary test qualification and a successful training in F.S.M. The petitioner in O.P. 14886/96 suffered a reversion on the ground that he did not have ten years continuous service. But, that clause in Ext. P1 was declared illegal as per judgments in O.P. 9358/84 marked as Ext. P7 in O.P. 16453/94. It was also declared that the petitioner should get seniority as if there was no such reversion. Therefore, the petitioners are entitled for seniority in the category of Manager Grade I right from their initial appointment in 1981 in that category. Even though the 3rd respondent got his reversion from the post of Manager Grade III set right as per Ext. R3(g), he did not agitate that he was entitled for promotion as Manager Grade I in preference to the petitioners. He was promoted only as per Ext. R3(K) dated 20-2-83 as Manager Grade I, because only by that time he acquired qualification of F.S.M. Training. Therefore, in the category of Manager Grade I, the 3rd respondent became junior to the petitioners. Naturally, to the next higher promotion, subject to suitability, the senior shall be preferred. The next higher promotions are to the posts of Manager Grade I (Higher Grade) and Deputy Director and thereafter as Joint Director. The petitioners were promoted as Manager Grade I (Higher Grade) in 1993 and thereafter as Deputy Director, whereas the 3rd respondent was continuing only as Manager Grade I. It was at that point of time the 3rd respondent filed a representation before the Government seeking exemption from qualification of F.S.M. Training. That representation is dated 29-12-95 referred to as item No. 1 in Ext. P5. As there was no reply thereof, the petitioner approached this Court and obtained an order dated 16-1-96 for its consideration. In the meanwhile, as the promotion to the post of Manager Grade I had been effected, only on provisional basis and as the said post was a selection post, the Departmental promotion Committee was convened for regularisation of the candidates promoted so. The Departmental Promotion Committee adopted a special method of preparing a draft select list and circulating the same among the candidates through the department. This is evident from Ext. R3(n). Exhibit R3(n) is a copy of the proceedings of the Director circulating the said draft D.P.C. list to the 3rd respondent himself. In Ext. R3(n) the petitioners are given ranks on tentative basis as 21 and 22 whereas the 3rd respondent was assigned Rank No. 31. This list was finalised by the D.P.C. as per Ext. P4 select list wherein the candidates are assigned rank Nos. 21 and 22 in respect of the petitioners and 31 in respect of the 3rd respondent assigning the vacancies of Manager Grade I that had occurred on 31-1-81 and 28-8-81 in respect of the petitioners and on 28-2-83 in respect of the 3rd respondent. It is evident from Ext. P4 that that list was finalised after hearing objection of the officers who have objected to the draft lit. Obviously, the 3rd respondent also should have objected to it. Counsel is not sure whether the 3rd respondent had objected to the draft list. If he had not objected to the draft list, he is now estopped from objecting to the ranking. On the other hand, if he had objected it, and if his objection is overruled in finalising Ext. P4, it was incumbent on the 3rd respondent to invoke Rule 28(b)(i)(8) to get Ext. P1 reviewed by representing his grievance before the D.P.C. The 3rd respondent has not done it. I have already mentioned that after the direction issued by this Court to consider the representation made by the 3rd respondent seeking exemption from P.S.M. Training, the D.P.C. had finalised the list assigning various vacancies to the respective candidates including the petitioners and the 3rd respondent. The D.P.C. is a statutory body and the list prepared by that statutory body has a statutory status when it is notified in Gazette as enjoined by the rules. Subsequent to such publication, Government issued Ext. P5 order dated 12-9-96 exempting the 3rd respondent from acquiring F.S.M. Training for the period from 28-8-81 to 22-11-82 for promotion to the post of Manager Grade I as a special case. Exhibit P5 does not show that that order was passed after affording opportunity to the persons likely to be affected. Consequent to Ext. P5, Government issued further order Ext. P6 promoting the 3rd respondent who was then holding the post of Manager Grade I as Joint Director without even officiating in two intermediary selection posts of Manager Grade I (Higher Grade) and Deputy Director. This promotion was effected over the head of the petitioners who were then holding the post of Deputy Director, the feeder category to the post of Joint Director. It is in the above circumstances the petitioners have approached this Court impugning Exts. P5 and P6.