NOT HEARD

Our Association had approached the Hon’ble High Court in the very beginning by filing WP No. 39127of 2003 against the attempt for the excess direct appointment over quota rule. The Hon’ble High Court in its interim order dated 13.07.2004 had directed the official respondents to maintain the prescribed ratio. The said writ petition was disposed off directing the respondents to maintain the cadre strength ratio.

REPORTED DECISIONS

1.        The Hon’ble Division bench of this Court in the decision Aloysius v. Sarada Muraleedharan reported in 1995 (2) KLT 741 held that when promotion is outside the quota, the seniority would be reckoned from the date of the vacancy within the quota. The previous promotion would be regular only from the date of vacancy within the quota and seniority shall be counted from that date and not from the date of his earlier promotion.

2.        The Hon’ble Division bench of this Court in the decision reported in 2009 (3) KLT 274 held that the decision of the appointing authority to report vacancies, in violation of the quota prescribed in the Special rules, read in the light of Note 3 to R5 of Part II of the KS & SSR, was an action in excess of jurisdiction and therefore, a nullity. The direct recruits cannot get seniority based on the date of advice, as they are advised in excess of their quota. They have to wait for their turn, to get seniority. The normal rule governing seniority in the General rules is not applicable to them, as their appointments were against the provisions of the Special rules. Whenever it is found a change in the date of promotion is warranted, that is carried out by assigning a different date in the seniority list. There need not necessarily be any separate appointment order.

Rule 27 (a) & (c)

      As per Rule 27(a) where the method of appointment to the post are by promotion and by direct recruitment in a fixed ratio, shall be determined as where the first vacancy in a category is for appointment by promotion and the second  vacancy is for appointment by direct recruitment and when the first two vacancies arise in that category a departmental hand shall be appointed regularly by promotion, as the case may be, in the first vacancy and in the absence of direct recruit reporting  for duty in the second vacancy a departmental hand shall be appointed temporarily by promotion, as the case may be, in that vacancy. In the case a direct recruit does not report for duty till a third vacancy arises in the department, the appointment of person temporarily by promotion in the second vacancy shall be regularized from the date of occurrence of third vacancy. Similarly if two more vacancies are in the cadre (total five) the departmental hands are entitled for three vacancies and hence the promotion of the third man shall be regularized from the date of occurrence of the fifth vacancy. The direct recruits shall be entitled for rank and seniority from the date of his first effective advice.

   Rule 27(a) and (c) only stipulates that while determining the seniority of direct recruits it should be based on the date of their effective advice and when two or more persons are included in the same advice list, their relative seniority list shall be fixed according to the order in which their names are arranged in the advice list. That will not prevent the KWA to place promotes in the date of occurrence of vacancies within quota rule. 

MISUSING THE JUDGMENT FOR REVERSION

As on the Judgment dated 12.01.2016 in W.P.(C) No. 31525 of 2015, the dispute regarding the seniority is pending before the Hon’ble Supreme court and the matter had pointed out in the counter affidavit filed by the KWA. The Hon’ble  Supreme Court had issued an interim order dated 10.04.2015 directing to maintain “Status quo” in the SLP (Civil) No. 11432-37 of 2015. As on the date of issuance of the said interim order on 10.04.2015, final seniority list as on 01.07.2012 and revised seniority list as on 01.01.2015 was in force. Therefore, the maintaining of status quo as on 10.04.2015 mean following the above mentioned two seniority lists for all practical purposes and not allowed any interference in the matter.

NOT MAINTAINED RATIO IN ASSISTANT EXECUTIVE ENGINEER

From                    From                                                                                    

                               The General Secretary

KWA Engineering Staff Association

JNNURM Project Circle, Kochi 11.

To

          Smt. A. Shinamol IAS

The Managing Director

JALA BHAVAN,

Kerala Water Authority,

Thiruvananthapuram.

Sir,
Sub: Combined Seniority list of Assistant Exe. Engineer publishing -
         reg
Ref:   1) Judgment dated 27.09.17 in WP( C) No. 7123 of 2012 (M) 
          2) Judgment dated 31.12.2012 in WP © No. 19058 of 2012 (F)

3) No. KWA/JB/E2(A)/5130/2012/Vol.II dated 07.09.15,        

           15.09.15 and 29.01.16.

The Hon’ble High Court in its Judgment dated 27.09.17 in WP( C) No. 7123 of 2012 (M) had been directed the Kerala water Authority to maintain the cadre strength ratio in the post of Assistant Executive Engineer in the light of the Judgment in WA No. 353/2000 with retrospective effect from 05.01.2000, within a period of two months. It is pointed out that the cadre strength ratio of Assistant Executive Engineer is 216 and by working out the ratio of 3:1, 54 will have to be given to the Diploma holders and rest to the Degree holders. The photocopy of the Judgment is submitted herewith.

The Hon’ble High Court in its Judgment dated 31.12.2012 in WP © No. 19058 of 2012 (F) had also directed the KWA “to ensure the ratio of 3:1 facilitating occupation of the requisite number of posts by the Diploma holders in the post of Assistant Executive Engineer as well applying the ratio to the cadre strength. No post/vacancy coming within the quota earmarked for the Diploma holders shall be caused to be filled up even temporarily, by accommodating any Degree holder”. But the KWA was filled up the vacancies reserved for the Diploma holders violating the court orders by promoting the Degree holders through various promotion orders including vide reference 3^rd cited above on 07.09.15, 15.09.15 and 29.01.16 in the conditions that the consequent imbalance in ratio will be rectified in future by promoting the Diploma holders. Nobody promoted sofar as per these conditions.

In the above circumstances, I request that combined seniority list of Diploma and Degree holders of the Assistant Executive Engineer may please be published with retrospective effect from 05.01.2000 by reckoning the seniority in the date of occurrence of vacancies within quota rule and circulated among the incumbents including in the feeder categories in compliance of the above Judgments at the earliest.

                                                  Thanking you,

                                                                              Yours faithfully,

                                                  Sd/-

Ernakulam,                                                              SALIH. K.K.

09.11.2017

ATTEMPT FOR BACK DOOR APPOINTMENT ON MARCH 2018

NOT OBEYED

It is now settled law in view of the decision of the “Supreme Court in Prakash v. Kurien” reported in 1999 (2) KLT 710 that the ratio has to be applied as against the cadre strength. The official respondent has realized the mistake and it is undertaken in the counter affidavit that steps were being taken to rectify the mistake and the Hon’ble Court in its Judgment dated 18.10.2005 in O.P.No. 3750 of 1998 directed the respondents to follow the ratio strictly as against the cadre strength.