Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN & THE HONOURABLE MR.JUSTICE V.G.ARUN WEDNESDAY, THE 06TH DAY OF NOVEMBER 2019 / 15TH KARTHIKA, 1941 O.P(KAT).No.2950 OF 2013(Z) AGAINST THE ORDER IN O.A.1411/2013 DATED 05-07-2013 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM. PETITIONERS/ APPLICANTS:
1 V.S.SINIL, AGED 45 YEARS, S/O. V.K.SREEDHARAN, SECTION FOREST OFFICER, KUMILY RANGE, KOTTAYAM DIVISION; (RESIDING AT VAZHAYIL P.O., MELEKAVUMATTOM, KOTTAYAM DISTRICT-686 652). 2 P.RAVIKUMAR, AGED 50 YEARS, S/O. K.N.PADMANABHAN NAIR, SECTION FOREST OFFICER, PERIYAR WEST DIVISION, AZHUTHA RANGE, PEERUMEDU; (RESIDING AT SIVAPRIYA, P.O.PANAVALLY, CHERTHALA-688 566, ALAPPUZHA DISTRICT). BY ADVS. SRI.V.A.MUHAMMED SRI.M.SAJJAD
RESPONDENTS/ RESPONDENTS: 1 THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, FOREST AND WILD LIFE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2 THE CHIEF CONSERVATOR OF FORESTS (ADMINISTRATION), FOREST HEADQUARTERS, P.O.VAZHUTHAKKAD, THIRUVANANTHAPURAM-695 022. 3 THE CONSERVATOR OF FORESTS, HIGH RANGE CIRCLE, KOTTAYAM-686 001. R1-R3 BY SR.GOVERNMENT PLEADER SRI.ANTONY MUKKATH. THIS OP (KERALA ADMINISTRATIVE TRIBUNAL) HAVING BEEN FINALLY HEARD ON 06.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(KAT).2950 of 2013 - 2 - K.Vinod Chandran & V.G.Arun, JJ. -------------------------------- O.P(KAT) No.2950 of 2013 -------------------------------- Dated this the 06th day of November, 2019
JUDGMENT
K. Vinod Chandran,J: The petitioners are persons who claim seniority in the cadre of Foresters over the persons appointed before them for reason of such persons not being entitled to be considered in the 35 percentage vacancies reserved for direct recruitment.
2. The petitioners applied for the post of Foresters in the 35% vacancies reserved for direct recruitment. While selection and appointment was conducted, 10% of the vacancies were filled by-transfer from ministerial staff. Certain persons challenged the same since though earlier 25% was to be by direct recruitment
and 10% by-transfer from ministerial staff, the Special Rules were amended abolishing the quota for by-transfer appointment and merging it with that for direct
recruitment. We see that the first applicant herein had also challenged it with a writ petition [W.P(C) No.1539 of 2001], which was disposed of by Annexure A2. Annexure A2 OP(KAT).2950 of 2013 - 3 - directed that the very same benefit granted to appellants in W.A.No.2908 of 2001 would be granted to the petitioner also. The petitioners herein have not thought it fit to produce the judgment; which we obtained from the Registry.
3. W.A. 2908 of 2001 was an appeal with leave
filed by the by-transfer appointees against the judgment in O.P 1700 of 2001. We understand that the said O.P was filed by certain candidates who were placed in the rank list of the PSC, for appointment to the post of Forester by direct recruitment. The O.P was against 10% of the vacancies being filled up by-transfer, despite the quota being abolished
from the Special Rules. The Government's contention was that an executive order was passed restoring the quota. The Court in the O.P found that the Special Rules having provided for 35% quota to direct recruitment there cannot be any by-transfer appointment made to the vacancies in the said quota; without amendments to the Special Rules, which admittedly was not carried out. The W.A was filed by the by-transfer appointees, fearing reversion. The Division Bench too upheld the decision of the Single Judge and dismissed the appeal. In any event, it is an admitted fact that the petitioners were appointed pursuant to advice issued by the PSC as against the vacancies later reported OP(KAT).2950 of 2013 - 4 - by the Department. The petitioners seek seniority above the 15 ministerial staff appointed earlier or at least along with the last of such ministerial staff.
4. Definitely there can be no seniority assigned
to the petitioners above the ministerial staff appointed and continued in the promoted post earlier to the advises issued to the petitioners. Their promotions were never set
aside in the earlier cited O.P. or the W.A. and the directions therein to fill up the 35% quota of direct recruits was complied with by the Government without
upsetting the by-transfer promotions of ministerial staff. Then again none of those ministerial staff who were promoted as Foresters have been impleaded in the present O.A. also. We also notice from Annexure A5 that in fact the
1st petitioner/ 1st applicant herein had approached this Court with W.P(C) No.25125 of 2011 claiming seniority, which was directed to be considered by the appropriate
authority. Annexure A5 is the consideration made by the appropriate authority, wherein we find that the affected parties, viz., those ministerial staff promoted, by- transfer, to the post of Foresters, were also heard. Hence, the burden is more on the petitioners/applicants to have impleaded those persons in the O.A. when Annexure A5 was OP(KAT).2950 of 2013 - 5 - challenged.
5. As to the consideration for seniority on the date of appointment of the last of such ministerial staff, it is to be noticed that the appointment was to vacancies
which arose subsequently and no date could be assigned prior to that in the advice issued by the PSC. The learned Counsel has placed before us two decisions of the Hon'ble Supreme Court in Surendra Narain Singh v. State of Bihar [(1998) 5 SCC 246] and Balwant Singh Narwal v. State of Haryana [(2008) 7 SCC 728] which, on facts, are not applicable. We also notice that in both the decisions cited by the learned Counsel, the affected parties were before Court and were also heard before orders were passed.
For the reasons stated above, the Original Petition is dismissed, leaving the parties to suffer their respective costs. Sd/- K.VINOD CHANDRAN JUDGE Sd/- V.G.ARUN JUDGE Vku/- OP(KAT).2950 of 2013 - 6 - APPENDIX PETITIONER'S/S EXHIBITS: ANNEXURE A1 TRUE COPY OF THE ORDER NO.E1.9516/97 DATED 15.05.2002. ANNEXURE A2 TRUE COPY OF THE JUDGMENT IN O.P NO. 1539 OF 2001 DATED 18.10.2001. ANNEXURE A3 TRUE COPY OF THE RELEVANT PAGE OF THE PROVISIONAL SENIORITY LIST DATED 4.8.2004. ANNEXURE A4 TRUE COPY OF THE RELEVANT PAGE OF THE FINAL SENIORITY LIST DATED 12.5.2006. ANNEXURE A5 TRUE COPY OF THE ORDER NO.E7-12677/11 OF THE 2ND RESPONDENT DATED 25.02.2012. ANNEXURE A5(A) TRUE COPY OF THE ENGLISH TRANSLATION OF ANNEXURE A5. ANNEXURE A6 TRUE COPY OF THE APPEAL FILED BY THE 1ST APPLICANT BEFORE THE GOVERNMENT DATED 20.7.2012. ANNEXURE A7 TRUE COPY OF THE APPEAL FILED BEFORE THE GOVERNMENT DATED 20.7.2012 BY THE 2ND APPLICANT. ANNEXURE A8 TRUE COPY OF THE ORDER DATED 8.10.2012 IN O.A NO. 1864/2012 OF THE HONOURABLE TRIBUNAL. ANNEXURE A9 TRUE COPY OF THE HEARING NOTE SUBMITTED BEFORE THE 1ST RESPONDENT. ANNEXURE A10 TRUE COPY OF THE G.O(RT) NO. 99/2013/F&WLD DATED 11.3.2013 OF THE GOVERNMENT. ANNEXURE A11 TRUE COPY OF THE G.O.(RT) NO.123/2002/F&WLD DATED 25.04.2002 OF THE GOVERNMENT. EXHIBIT P1 COPY OF THE ORDER IN OA NO.1411/2013 DTD.5.7.2013. EXHIBIT P2 COPY OF THE ORIGINAL APPLICATION. [TRUE COPY]