The direction given by this Court as per judgment dated 31.10.2012 in W.P.(C) No.16923/2011 preferred by the writ petitioner by name Abu, challenging the promotion given to the third and fourth respondents therein, who are juniors to the writ petitioner and seeking for a direction to promote the writ petitioner (which has been ordered accordingly directing the 2nd respondent to pass necessary orders to promote the petitioner as U.D. Clerk with effect from the date on which the juniors were given promotion) and to restore the seniority lost to the writ petitioner is under challenge in this review petition, contending that the review petitioner stands senior to the writ petitioner in the cadre of L.D. Clerk having got appointment as early as on 14.07.1995 i.e. much prior to the appointment of the writ petitioner as L.D. Clerk, which was only on 24.09.1998. 2. The learned counsel for the review petitioner seeks to place reliance on Ext.P6 letter written by the employer i.e. the second respondent in the writ petition to the first respondent/Government, pointing out that both the writ petitioner as well as the review petitioner were qualified to be promoted as U.D. Clerks and that steps will be taken in the due course to give promotion in accordance with the relevant provisions of law. The learned counsel further submits that, by virtue of the nature and constitution of the organisation and control of the Government over the same, the matter has to be finalised by the 'governing body' and the position has been made clear by the first respondent by filing a counter affidavit in W.P.(C) 16923/2011. The learned counsel also seeks to place reliance on Annexure 2 produced along with the review petition, which is a copy of the proceedings of the governing body, wherein it has been conceded that the review petitioner who was appointed as L.D. Clerk on 14.07.1995 is senior to the writ petitioner and that the review petitioner is continuing in her entry post till date. Reference is also made to the writ petition filed by Abu as W.P.(C) 16923/2011. By virtue of the admitted factual position with regard to the seniority, it was the review petitioner who should have been promoted as U.D.Clerk in respect of the vacancy which arose on 29.08.2002 and it is without any regard to the better claim and credentials of the review petitioner, that apportionment has been given to the writ petitioner, pursuant to the judgment passed by this Court. Order No.C-apt/7127/12/EST dated 20.11.2012 passed in this regard is separately challenged in W.P.(C) 27386/2012, which is pending.
3. Heard the learned counsel appearing for the parties on both the sides, including the learned Government Pleader.
4. It is pointed out from the part of the respondents that the seniority alone is not the criterion for promotion as U.D. Clerk and that as per the relevant rules it is merit, ability and seniority. It is conceded by the learned counsel for the review petitioner that the review petitioner got qualified in the departmental test and the probation was declared only on 30.05.2002, though she had entered service as L.D. Clerk as early as on 14.07.1995. In the meantime, promotion had already been given to respondents 3 and 4 by name Smt. Moncy T. Maliakkal and Sri. Anish S.P. as U.D. Clerks. The promotion given to the said persons, being the juniors of the writ petitioner, was sought to be challenged by the writ petitioner by filing W.P.(C)16923/2011. The review petitioner admittedly did not pursue any such exercise, nor was there any challenge with regard to the promotion given to the aforesaid persons on 14.06.2001, presumably for the reason that the review petitioner was not qualified as on the said date. It was after considering the relative claims and better seniority of the writ petitioner than respondents 3 and 4, that a positive verdict was passed by this Court directing the writ petitioner to be promoted with effect from the date on which the juniors i.e. respondents 3 and 4 who were given promotion with effect from 14.06.2001. This being the position, this Court finds that there is absolutely 'no error apparent on the face of the record', to invoke the power of review. For the very same reason, this Court finds that the version of the review petitioner that the writ petitioner did not implead the review petitioner/senior in the party array and the actual position was not brought to the notice of this Court does not hold any water.
5. The only remaining question to be considered is whether the review petitioner could be directed to be considered and promoted in respect of the vacancy of U.D. Clerk which is stated as arisen on 29.08.2002. As mentioned hereinbefore, the dispute involved in W.P.(C) 16923/2011 was only with regard to the wrong promotion given to the juniors overlooking the senior/writ petitioner as on the relevant date i.e.14.06.2001; on which date the review petitioner admittedly was not qualified. If there is any subsequent vacancy and if the review petitioner is eligible to be considered for promotion, such promotion exercise has to be considered by the competent authority in accordance with the relevant rules, also considering the similar/relative claims of other qualified persons as well, who satisfy the requirements as on the date of arising the vacancy. It is for the concerned respondents to take appropriate steps in this regard.
With the above observation, the review petition is dismissed.
Sd/-
P.R. RAMACHANDRA MENON, JUDGE //True copy// P.A. TO JUDGE shg/