IMPORTANT POINT
The right to promotion and seniority under the Special Rules must be upheld, ensuring eligible candidates are prioritized over direct recruits.

JUDGMENT :

P.M.Manoj, J.

The writ petition is preferred being aggrieved by the issuance of Exts.P7, P10 and P13 whereby the seniority in the category of Confidential Assistant Gr.II was denied to the petitioners and thereby, they lost seniority in the grade of Confidential Assistant Gr.I.

2. The petitioners were originally appointed as L.D.Typist through Kerala Public Service Commission (‘the PSC’ for short) in April, 2008. Thereafter, the probation of both petitioners were declared during April, 2010. While continuing so, the 1st respondent has initiated proceedings for promotion to the category of Confidential Assistant Gr.II as provided in the Kerala Water and Waste Water Authority Administrative, Ministerial and Last Grade Service Rules, 1986, (‘the Special Rules’ for short), wherein it was stated that the details of Lower Division Typists working under the control of the Chief Engineer, who possesses necessary qualification shall be submitted to the office of the 1st respondent on or before 07.06.2010.

3. It is pointed out by the petitioners that as per Ext.P2 Special Rules, the post of Confidential Assistant Gr.II mentioned under serial No.27 is the promotion post of Lower Division Typist (English) and Lower Division Typist (Malayalam). It is further stated in the said Rules that only in the absence of suitable candidates for promotion, the recruitment shall be resorted to by direct recruitment. It is further contended by the petitioners that in fact the last date for submission of the list of eligible candidates for promotion from the category of LD Typist was on 07.06.2010. However, without exhausting the said list, direct recruitment was resorted to by the 1st respondent. Appointments were given to respondents 2 and 3 and thereby the 3rd respondent was given seniority with respect to her advice on 31.05.2010 and the 4th respondent was given seniority with effect from 06.07.2010. Both dates were date of effective advised by the PSC. Whereas it is contended by the petitioners that the petitioners were advised for appointment by Ext.P3 dated 30.06.2010. If respondents 2 and 3 would have been appointed after the date of completion of process as mentioned in Ext.P1, the seniority would not have been given to respondents 2 and 3. Accordingly, by Ext.P7 seniority list of Confidential Assistant Gr.II as on 01.04.2013, respondents 2 and 3 and other persons advised in between were assigned seniority above the petitioners. It is contended by the Counsel for the petitioners that in fact petitioners 2 and 1 would have placed at 10 and 11 instead of 17 and 18. In this regard, the 2nd petitioner preferred Ext.P8 representation before the 1st respondent, which was rejected as per Ext.P10.

4. Against Ext.P10, the 1st petitioner preferred Ext.P11 before the 1st respondent for rectifying the anomaly and approached this Court by filing W.P.(C) No.9346 of 2014. By judgment dated 31.10.2014, this Court disposed of the writ petition with a direction to the 1st respondent to consider and pass appropriate orders on the representation, preferably within the stipulated time. In compliance of the said direction, Ext.P13 was issued stating that in compliance of Rule 27(C) of Part II KS&SSR, the seniority of persons appointed for a class, category or grade in service on advice of the Commission shall unless has been reduced to a lower rank as punishment, be determined by the date of first effective advise made for his appointment to such class, category or grade and when two or more persons are included in the same list of candidates, advised their relative seniority shall be fixed according to the order in which their names are arranged in the advise list. Therefore it is incontrovertible that the date of first effective advice of the PSC cannot be changed or altered and hence they are entitled for seniority on that day itself.

5. It is further clarified that as regards retrospective date of promotion by overlooking the seniority of direct recruitment