IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 5TH AUGUST 2009 / 14TH SRAVANA 1931 WP(C).No. 20096 of 2009(F) -------------------------- PETITIONER(S): --------------- P.S.JAYAKUMAR, HEAD OF SECTION, COMMERCIAL PRACATICE SECTION, GOVERNMENT WOMEN'S POLYTECHNIC COLLEGE, THIRUVANANTHAPURAM. BY ADV. SRI.ELVIN PETER P.J. RESPONDENT(S): --------------- 1. STATE OF KERALA, REP,.BY THE SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF TECHNICAL EDUCATION, THIRUVANANTHAPURAM. 3. C.V.KOMALAM, PRINCIPAL, GOVERNMENT POLYTECHNIC COLLEGE, PALA, NOW UNDER ORDERS OF TRANSFER TO GOVERNMENT WOMEN'S POLYTECHNIC COLLEGE, NEDUPUZHA,THRISSUR. ADV. SRI.MILLU DANDAPANI FOR R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX Petitioners Exhibits: Ext.P1: True copy of the Order dated 14.12.1999 of the 2nd respondent. Ext.P1(a): True copy of the relevant extract of the Seniority list published as per Ext.P1 Ext.P2: True copy of the Order dated 9.8.2003 of the 2nd respondent. Ext.P2(a): True copy of the relevant extract of the Seniority list published as per Ext.P2. Ext.P3: True copy of the order dated 8.12.2004 of the 2nd respondent. Ext.P4: True copy of the representation dated 24.2.2009 filed by the petitioner. Ext.P5: True copy of the judgment dated 5.3.2009 in WP(C)No. 7169/2009 of this Hon'ble Court. Ext.P6: True copy of the Order dated 14.7.2009 issued by the 1st respondent. /True copy/ P.A. To Judge T.R. RAMACHANDRAN NAIR, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P. (C) No. 20096 OF 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 5th day of August, 2009 J U D G M E N T The petitioner is aggrieved by Ext.P6 order passed by the Government, whereby the 3rd respondent has been transfered as Principal in the Govt.Women's Polytechnic, Nedupuzha, in Thrissur District. 2. The petitioner is working as Head of section, Commercial Practice of Govt. Polytechnic, Thiruvananthapuram. He is the senior most among the Lecturers in Women's Polytechnics. Thus he is fully qualified to be considered for promotion to the post of Principal. The petitioner is challenging the impugned order mainly on two grounds. The 3rd respondent who is the beneficiary of Ext.P6 is only a principal of Government Polytechnic and in that capacity is not entitled to be posted as Principal in the Women's Polytechnic. Support is sought for in the light of special Rules namely, the Kerala Technical Education service Special Rules. Class F of the Special Rules in Women's polytechnic. The method of appointment of Principal as laid down by the rule is as following:- WPC.No. 20096 OF 2009 : 2 : “Class F. Women's Polytechnic Principal 1. Promotion from the category of qualified Lecturers in any of the subjects in the respective Women's Polytechnics. 2. In the absence of item (1) above promotion from the next lower grade in the Women's Polytechnics, qualified in the respective subjects. 3. In the absence of items (1) and (2) above, by transfer from any other service. 4. In the absence of items(1) to (3) above, by direct recruitment. Note: The incumbent to be considered eligible for promotion must be qualified in any of the subjects taught in the respective Women's Polytechnics.” 3. In the light of the above provision, it is contented that the method of filling up the post is by promotion of lecturer having the qualification, from Women's polytechnics. It is also submitted that the method provided as item 3 therein will not WPC.No. 20096 OF 2009 : 3 : have any application to the 3rd respondent, as it is not an appointment by transfer. It is also contented that the qualification for the post of Principal in General Polytechnics and Women's Polytechnics are totally different. As the 3rd respondent is not thus qualified, Ext.P6 cannot be supported in law. 4. The petitioner has produced Ext.P1 and P1(a), the seniority list, whereby he is shown as sl.no.2among lecturer in Commerce. It is pointed out that sl.no.1 has already retired from service. In P2(a) gradation list also, he is shown as sl. no.2 and sl.no.1 has already retired from service. His probation has already been declared as per order dated 8.12.2004 w.e.f 24.2.96. It is evidenced by Ext.P3. The vacancy in the Polytechnic arose on 1.4.2009 5. The petitioner had submitted ExtP4 representation dated 24.2.2009 requesting to promote him to the vacancy which was to arise on 1.4.2009. The petitioner points out that the 3rd respondent earlier filed WP(C) No. 7169/2009, seeking for a transfer and posting as Principal in any one of the General Polytechnics under class C in Thrissur District. Ext.P5 is the said WPC.No. 20096 OF 2009 : 4 : judgment. It is pointed out that the assumption made by the respondents 1 & 2 that this court has directed the third respondent to be posted in any of the Polytechnics in Thrissur Districts cannot be said to be correct. It is pointed out that the 3rd respondent is covered by Class C of the Special Rules, relating to General Polytechnics and the method of promotion is, and the qualification prescribed are not identical. 6. The 3rd respondent has filed a detailed counter affidavit. The 3rd respondent would retire from service on 31.3.2010. It is in these circumstances, the 3rd respondent submitted a representation seeking for a posting in the Home district as she has got only two years of service to retire from service. It is pointed out that going by R3(1) order passed by the Director of Technical Education, the practice was already therein in the department to fill up the vacancies of Principals in Women's Polytechnics from among the Principals of General Polytechnics. The posts are hence inter-changeable. 7. Ext.P6 is the order of transfer and posting of Principals of the General Polytechnics. The issues raised by the petitioner WPC.No. 20096 OF 2009 : 5 : requires a serious examination in the hands of the Government itself. The petitioner going by his contentions is entitled to be promoted as Principal in the existing vacancy. The pleadings do not reveal that he has already been included in the select list. Therefore, a regular promotion to the post of Principal will normally be done only after the process provided under the general rules are gone into by competent authority. 8. The learned counsel for petitioner submits that in the light of the fact that, he is the senior most among the qualified lecturers to be promoted and as the vacancy could not be filled from the general stream, the respondent can consider the claim of the petitioner for promotion at least provisionally till a regular promotion is made, especially since the 3rd respondent cannot be transferred under the Rules to fill up the existing vacancy. 9. I am of the view that this is a matter for consideration at the hands of the Government and this court will not justified in deciding the matter, as the respondents are yet to consider his claim. The Government itself will have to address the question raised by the petitioner in terms of the Special Rules. WPC.No. 20096 OF 2009 : 6 : 10. Prima facie the transfer and posting of the 3rd respondent in Ext.P6 cannot be justified in the light of the express provisions contained in the Special Rules. It is made as a routine one. Although the 3rd respondent submitted that as a matter of practice such posts available in the Women's Polytechnics were being filled up from the general stream also, as pointed out by learned counsel for the petitioner, Ext.R3(1) indicates only the posting of Lecturers in Computer Engineering and not in respect of any Principal. Whatever that be the issue has to be considered by the first respondent as expeditiously as possible. The claim of the petitioner for regular promotion or at any rate for a provisional promotion in terms of the General Rules will be considered by the Government. The Government will also consider whether the post of Principal in Women's Polytechnics could be filled up from among the Principals of other General Polytechnics, going by the method provided in the Special Rules. 11. The writ petition is therefore disposed of directing the first respondent to take a decision in the matter after hearing the petitioner and the 3rd respondent within six weeks from the date WPC.No. 20096 OF 2009 : 7 : of receipt of a copy of the judgment. 12. It is pointed out that the 3rd respondent has already been relieved from Government Women's Polytechnic, Nedupuzha, Palai,pursuant to the order of transfer. She will be allowed to join in the transferee station subject to the decision to be taken by the Government as directed above. Such arrangement will be provisional in the light of the above direction. If the decision of the Government is against the 3rd respondent, then in the light of the directions of this court, inExt.P5, the claim of the respondent for a posting in the home district will be considered in any other suitable vacancies, in General Polytechnics. No costs. (T.R. RAMACHANDRAN NAIR, JUDGE) jma