P.Sivadasan vs The Registrar
2021 Latest Caselaw 4108 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

          THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

    THURSDAY, THE 04TH DAY OF FEBRUARY 2021 / 15TH MAGHA,1942

                       WP(C).No.2267 OF 2010(R)


PETITIONER:

               P.SIVADASAN, CONFIDENTIAL ASST.GRADE II,
               MUNSIFF MAGISTRATE COURT,
               S.PARAVOOR, KOLLAM.

               BY ADV. SMT.SHAMEENA SALAHUDHEEN

RESPONDENTS:

      1        THE REGISTRAR,
               SUBORDINATE JUDICIARY
               HIGH COURT OF KERALA, ERNAKULAM.

      2        THE DISTRICT JUDGE, KOLLAM.

               BY ADVS. SRI.ELVIN PETER P.J., SC
                        SRI.SUNIL KUMAR KURIAKOSE - GP

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD        ON
04.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.2267 OF 2010(R)

                                  -2-

                            JUDGMENT

Dated this the 4th day of February 2021

The petitioner has approached this Court

seeking a direction to grant retrospective

effect to his appointment as Confidential

Assistant Grade II, from 04.04.2004.

2. The first and second respondents have

filed a counter affidavit, answering the various

allegations in this writ petition, in the

following manner:

"3. The averments contained in paragraph 2 of the writ petition are not fully correct. The averments contained therein that the first vacancy of Confidential Assistant arose in the Civil Judicial District, Kollam on 04.04.2004 is not correct. The vacancy of Confidential Assistant referred to in Paragraph 2 that arose on account of the Leave Without Allowance granted to P.K.Akilamalu arose on 14.09.2004 and not on 4.4.2004.

4. The averments contained in paragraph 3 of the writ petition are not correct and hence denied. The averment in paragraph 3 of the writ petition that the petitioner was entitled to be considered for promotion prior to the issuance of Ext.P4 order and that he possessed all the qualifications for such promotion is not fully correct. It is true that the petitioner possessed the qualifications WP(C).No.2267 OF 2010(R)

prescribed for promotion to the post of Confidential Assistant. However, the petitioner had not completed his probation prior to 20.03.2006 and hence he can be promoted only after declaration of his probation. The petitioner, as admitted in the writ petition, entered service as L.D. Typist on 15.03.2004. In accordance with Rule 14 of the Kerala Judicial Ministerial Subordinate Service Rules, the petitioner on entry in service has to be on probation for two years within a continuous period of 3 years. The petitioner completed his probation in the category of L.D.Typist and it was declared only on 20.03.2006. Hence, his claim for promotion from 4.4.2004 or from 7.1.2005 is against the rules of promotion, as both the dates mentioned are before his completion of probation.

5. The averments contained in paragraphs 4,5 and 6 of the writ petition are not correct and hence denied. The instances cited by the petitioner to establish that promotion from the category of L.D. Typist to that of Confidential Assistant has been made in the Department of persons who had not completed their probation is not correct and hence denied. The two instances referred to in paragraph 6 namely promotion of T.K.Asokan and Smt. T.Vijayalakshmi Pillai were not regular promotions. On the other hand, the said promotions were provisional promotions. Further the said persons namely T.K. Asokan and Smt.T.Vijayalakshmi Pillai were far senior to the petitioner. Hence, the petitioner cannot stake his claim for provisional promotion in preference to the above persons. It is further submitted that not a single junior of the petitioner has been promoted to the category of Confidential Assistant before the petitioner was promoted."

WP(C).No.2267 OF 2010(R)

3. It is thus luculent that the petitioner

had not completed his probation prior to

20.03.2006, and could not have consequently

sought for promotion before that. He has

completed his probation only on 20.03.2006 and

therefore, his claim for promotion from

04.04.2004 or from 07.01.2005 cannot find my

favour.

4. That apart, the incident referred to by

the petitioner in this writ petition - relating

to persons who were promoted - could not inure

to him any benefit, since they are both

concededly senior to him.

In the afore circumstances, I cannot find

any favour with the petitioner and therefore,

dismiss this writ petition without any further

orders.

Sd/-

DEVAN RAMACHANDRAN JUDGE akv WP(C).No.2267 OF 2010(R)

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE TRADE CERTIFICATE ISSUED BY THE NCVT.

EXHIBIT P2 TRUE COPY OF THE COMMUNICATIONS ISSUED BY THE KPSC.

EXHIBIT P3 TRUE COPY OF THE COMMUNICATIONS DATED 17.10.2007 ISSUED BY THE KPSC.

EXHIBIT P4 TRUE COPY OF THE PROCEEDING NO.B1-16/2007 DATED 09.04.2007 OF THE 2ND RESPONDENT.

EXHIBIT P5 TRUE COPY OF THE PROCEEDINGS NO.B1-1819/08 DATED 15.07.2008.

EXHIBIT P6 TRUE COPY OF SENIORITY LIST DATED 01.01.08.

EXHIBIT P7 TRUE COPY OF THE REPRESENTATION DATED 26.08.2008.

EXHIBIT P8 TRUE COPY OF THE OBJECTIONS DATED 7.5.08 PREFERRED BY THE PETITIONER.

EXHIBIT P9 TRUE COPY OF THE PROCEEDINGS OF THE 1ST RESPONDENT DATED 23.10.2009.

RESPONDENT'S/S EXHIBITS : NIL.

//TRUE COPY// P.A. TO JUDGE