The case stands posted for disposal. Today also, there is no representation for the petitioner. Therefore, the writ petition is closed without examining the merits of the grounds raised.
19/06/2014. SD/- A.V.RAMAKRISHNA PILLAI, JUDGE //TRUE COPY// P.A. TO JUDGE rs.
P.N.RAVINDRAN, J.
====================================== W.P.(C)No.34 of 2006 ====================================== Dated this the 25th day of July 2008 JUDGMENT The petitioner was enrolled as Head Clerk in the Indian Army on 9.6.1968. He became a Sub Clerk on 3.5.1983 and while working in that post in the Defence Security Corps, Kannur, retired from service on 30.5.1994 on attaining the age of superannuation.
2. While he was in service, the petitioner had represented to the authorities that he is entitled to be promoted to the cadre of Subedar Major (Clerk) at least with effect from 4.11.1992. Inter alia he also contended that the 5th respondent in the writ petition who was later deleted from the array of parties was illegally appointed as Subedar Major (Clerk). The petitioner's representations in that regard were rejected initially by Ext.P7 dated 2.3.1994. The only reason stated therein was that the Subedar Major Lexmi Narain was eligible for promotion. The petitioner challenged Ext.P7 in O.P.No.6701 of 1994. The learned Single Judge dismissed the writ petition. The petitioner carried the matter in appeal. By Ext.P8 judgment delivered on 16.3.2005 in W.A.No.1484 of 2002, a Division Bench of this Court permitted the petitioner to raise his claim for promotion in the vacancy that was said to have arisen on 4.11.1992, by filing a fresh representation. This Court also directed that if such a representation is filed, it shall be disposed of within three months. It was also directed that if the petitioner requests, he shall be afforded an opportunity to be heard in person.
3. As directed in Ext.P8 judgment, the petitioner submitted Ext.P9 representation wherein he pointed out that he is no longer contesting the promotion given to Subedar Major Lexmi Narain for the reason that there were open vacancies of Subedar Major (Clerk) on 4.11.1992. In Ext.P9, the petitioner pointed out that in the seniority list of Subedar Major (Clerks) produced along with the counter filed in O.P.No.6701 of 1994 as Ext.R2(d), Sri.Lexmi Narain is shown as Sl.No.6, Sri.Eswar Singh is shown as Sl.No.7 and Sri.R.P.Sukla as Sl.No.8. The petitioner pointed out that Sri.Lexmi Narain was promoted as Subedar Major (Clerk) on 1.8.1990, that Sri.Eswar Singh left the service on 4.11.1992 and Sri.R.P.Sukla was discharged from service on 1.10.1987.
The petitioner also pointed out that yet another vacancy of Subedar Major (Clerk) had arisen on 4.11.1992 on the promotion of Sri.Lalitha Prasad. In Ext.P9, the petitioner also stated that as per the rules, there can be a maximum of 4 Subedar Major (Clerks) in the Department. In Ext.P9, the petitioner prayed promotion as Subedar Major (Clerk) with effect from 4.11.1992 with all attendant benefits including promotion as Honorary Lieutenant. By Ext.P10 order passed on 10.11.2005, the petitioner's request was rejected. The only reason set out in Ext.P7 for rejecting the petitioner's request is as follows:
“ AND WHEREAS, Sub Majl Clk Laxmi Narain being senior to you was promoted to the rank of Sub Maj against the vacancy of 04 Nov.1992. No further vacancy for Sub Maj was available thereafter against which you could be promoted before your retirement on 31 May 1994 on completion of the terms of engagement. No injustice has been done to you.”
4. I have heard Sri.M.C.Nambiar, the learned counsel appearing for the petitioner. The learned counsel contended that in view of the admitted position regarding availability of vacancies and the failure of the respondents to controvert the vacancy position as set out by the petitioner in ground-E of the writ petition, the stand taken in Ext.P10 is not tenable.
When the case was called on for hearing today, there was no representation on behalf of the respondents. The respondents have also not filed a counter affidavit disputing the averments in the writ petition. I am, therefore, disposing the Writ Petition based on the uncontroverted averments in the writ petition and after hearing the submissions made at the Bar by the learned counsel appearing for the petitioner. It is evident from the averments in the writ petition which stand uncontroverted that there were vacancies of Subedar Major (Clerk) on 4.11.1992. The petitioner has in Ext.P9 pointed out that vacancies of Subedar Major (Clerk) existed on 4.11.1992. The authority who issued Ext.P10 was in the know of things and had access to official records to verify the claim made by the petitioner has merely brushed aside the petitioner's contentions stating that no vacancy of Subedar Major (Clerk) was available on 4.11.1992 or thereafter. In my considered opinion, in the light of the materials on record, the said finding in Ext.P10 cannot be sustained.
For the reasons stated above, I quash Ext.P10 and direct the respondents to issue orders promoting the petitioner as Subedar Major (Clerk) with effect from 4.11.1992. Orders in this regard shall be passed within two months from the date of receipt of a copy of this judgment. In the light of the stand taken by the respondents in Ext.P10, it is evident that the petitioner was deliberately and for no justifiable reason denied promotion as Subedar Major (Clerk). In the circumstances, I further direct that the petitioner shall be paid salary and allowances attached to the post of Subedar Major (Clerk). His pensionary benefits shall also be refixed accordingly. Arrears of pay and allowances and arrears of pensionary benefits shall be paid to the petitioner within three months from the date of issue of the orders promoting the petitioner as Subedar Major (Clerk).
The writ petition is allowed as above. No costs.
P.N.RAVINDRAN, JUDGE
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