P.J. Jacob and Vijiraj M.R. vs State of Kerala and Others

S. Siri Jagan, J.—The Petitioners are aggrieved by Ext.P10 order, whereby the 2nd Respondent has denied the Petitioners the benefit of Rule 13(A)1 (a) of K.S. & S.S.R in the matter of promotion to members of scheduled caste/scheduled tribes communities. The Petitioners belong to the Malaya Araya community. The 1st Petitioner entered service as an L.D. Clerk in 1997. The 2nd Petitioner entered service as L.D. Clerk in 1999. For promotion as U.D. Clerk, L.D. Clerks are supposed to pass an eligibility test which the Petitioners have not passed at the relevant time. According to the Petitioners, by virtue of Rule 13A, they are entitled to promotion notwithstanding not passing the eligibility test, subject to the condition that they should pass the eligibility test within three years of promotion. According to the Petitioners, the Petitioners became entitled to such promotion with effect from 27.08.2003, which was not given to them. It is under the above circumstances, the Petitioners have filed this writ petition seeking the following reliefs:

1) To call for the records relating to Ext.P10 and issue a writ of certiorari or any other appropriate writ order or direction, quashing Ext.P10

2) To declare that the Petitioners were eligible to be promoted as U.D. Clerk by invoking the provisions of Rule 13(A)(1) of the KS & SSR on date prior to the date of promotion of the 5th Respondent.

3) Issue a writ of mandamus or any other appropriate writ order or direction, commanding the 2nd Respondents to grant promotion to the Petitioners at least wef the date prior to the date assigned to the 5th Respondent and notionally fix their seniority in the appropriate position in the seniority List of U.D. clerk and consider the Petitioners for consequential promotion.

4) To declare that the Petitioners were eligible to be promoted as U.D. Clark by invoking the provisions of Rule 13(A)(1) of the KS & SSR as early as in 2003 and are eligible to get their seniority fixed accordingly.

I have heard the counsel for the Petitioners and the learned Government Pleader. Insofar as the Petitioners are seeking retrospective promotion with effect from 27.08.2003 in November 2010, I wanted the Petitioners to explain the long delay of seven years in seeking the said relief appropriately. They have now filed I.A. No. 16133/2010 wherein the explanation given is as follows:

It is submitted that both of us belongs to scheduled caste community and is eligible to get the benefit of Rule 13(A)1 (a) of KS & SSR, in the matter of promotion to U.D. Clerk. Our junior who belongs to scheduled caste community was granted promotion before passing M.O.P. and Account test y giving the benefit of Rule 13(A)1 (a) of KS & SSR . We came to know of the said fact only during October, 2009 while we came across a provisional seniority list of U.D. Clerk as on 1.1.2004 which contain the name of our junior also. It was thereafter we could file representation before the Government against the said discrimination.

It is submitted that we were unable to challenge the illegality and discrimination committed against us immediately due to the following reasons. Even though we were aware of the benefit under Rule 13(A)1 (a) of KS & SSR, in fact we were under the impression that the said rule will be implemented uniformly among the members of service who belong to Scheduled caste. We were given to understand that the second Respondent will call for details of members of service belonging to scheduled caste/scheduled tribe from the various District Officers under the second Respondent before effecting promotion as U.D. Clerk and on getting such circular our names will be forwarded by the 4th Respondent. It is submitted that we were under the bonafide belief that there were not sufficient vacancies of U.D. Clark for considering persons with our seniority for promotion invoking provisions of the said rule and that the second Respondent will grant the benefit of the said rule uniformly without any discrimination. The 5th Respondent was working under the second Respondent, during the relevant time and he was given the benefit of Rule 13(A)1 (a) of KS & SSR for giving promotion as U.D. Clerk. It is submitted that we were totally unaware of the said illegality during the relevant time. Moreover in the year 2005 we were also given regular promotion as U.D. Clerk. It is submitted that seniority list of U.D. Clerk was not available in the second Respondent department for verification by the staff. We came across the provisional seniority list of U.D. Clerk with effect from 1.1.2004 only by chance during October, 2009. Immediately thereafter we brought the illegality before the second Respondent by filing Ext.P7 & P8 representations.

I am not satisfied that the same is sufficient explanation for the long delay of seven years. Admittedly at the relevant time the Petitioners had not passed the eligibility test. The three years period mentioned in Rule 13A is also long over. I do not think that, the clock can be set back to give the Petitioners promotion with effect 27.08.2003, in 2010. Therefore the writ petition suffers from the vice of delay and laches. The writ petition is dismissed on that ground.