IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 15TH SEPTEMBER 2009 / 24TH BHADRA 1931 WP(C).No. 21775 of 2007(P) ---------------------------------------- PETITIONER(S): ----------------------- V.K.HARIDASAN, MECHANIC (HIGHER GRADE), MEDICAL COLLEGE, KOTTAYAM RESIDING AT VELLAMTHADATHIL AVARMA, PERUMPADAVAM P.O., KOTTAYAM DISTRICT. BY ADV. MR.MILLU DANDAPANI RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF HEALTH AND FAMILY WELFARE, GOVERNMENT SECRETARIAT, TRIVANDRUM - 695001. 2. THE DIRECTOR OF MEDICAL EDUCATION, DIRECTORATE OF MEDICAL EDUCATION, TRIVANDRUM. 3. THE PRINCIPAL, MEDICAL COLLEGE, KOTTAYAM. 4. SRI.D.PAUL, LIFT MECHANIC, MEDICAL COLLEGE, KOTTAYAM. R1 TO R3 BY GOVT. PLEADER MR.DILEEP MOHAN R4 BY ADV. SRI.N.SUGATHAN, SMT.VARSHA BHASKAR, MR.S.PRASANTH (AYYAPPANKAVU). THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.21775/2007 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE GO(MS) 229/83/HD DT. 19.8.83 ISSUED BY IST RESPONDENT. P2:- COPY OF THE REPRESENTATION DTD. 20.5.06 SUBMITTED BY PETITIONER BEFORE IST RESPONDENT. P3:- COPY OF THE REPRESENTATION DTD. 5.1.07 SUBMITTED BY PETITIONER BEFORE IST RESPONDENT. P4:- COPY OF THE GO(RT) 403/07/H&FWD DTD. 5.2.07 ISSUED BY IST RESPONDENT. P5:- COPY OF THE REPRESENTATION DTD. 16.4.07 SUBMITTED BY PETITIONER BEFORE IST RESPONDENT. P6:- COPY OF THE ORDER NO.H2/21623/2007/DME DTD. 4.9.07 ISSUED BY THE 2ND RESPONDENT. P7:- COPY OF THE RELEVANT PAGES OF THE RECOMMENDATION OF THE PAY COMMISSION. P8:- COPY OF THE SENIORITY LIST ALONG WITH COVERING LETTER INVITING APPLCIATIONS FOR THE POST OF TECHNICAL ASSISTANT FROM AMONG TECHNICAL STAFF. RESPONDENT'S EXHIBITS R4(a):- COPY OF THE ORDER NO.MCE2-28453/84 DTD. 26.11.84. R4(b):- COPY OF THE CERTIFICATE DTD. 23.5.92 ISSUED BY SUPDT., CENTRAL WORKSHOP MEDICAL COLLEGE, TVM. R4(c):- COPY OF THE OFFICE ORDER DTD. 21.5.92. R4(d):- COPY OF THE CERTIFICATE DTD. 8.9.97. R4(e):- COPY OF THE GO(MS) NO.276/80/HD DTD. 27.10.80. R4(f):- COPY OF THE G.O.(MS) 88/82/HD DTD. 22.4.82. R4(g):- COPY OF THE G.O.(RT) NO.2576/99/H&FWD DTD. 22.9.99. R4(h):- COPY OF THE ORDER DTD. 13.8.07 OF ADMINISTRATIVE OFFICER. R4(i):- COPY OF THE GO(RT) NO.65/82/HEALTH DTD. 12.1.82. R4(j):- COPY OF THE GOVT. LETTER NO.42626/B1/99/H&FWD DTD. 19.1.2000. W.P.(C) NO.21775/2007 R4(k):- COPY OF THE U.O.NOTE DTD. 2.9.2000 ISSUED BY HEALTH DEPARTMENT. R4(l):- COPY OF THE REPRESENTATION DT.D 6.9.2000 TO THE IST RESPONDENT. R4(m):- COPY OF THE GOVT. LETTER NO.41386/81/2000/H&FWD DTD. 18.5.01. R4(n):- COPY OF THE NOTIFICATION NO.DPC 2/3486/2007/DME DTD. 6.8.07. R4(o):- COPY OF THE ORDER NO.H2/21623/07/DME DTD. 4.9.07. R4(p):- COPY OF THE STATEMENT OF FIXATION DTD. 14.8.07. TRUE COPY P.A. TO JUDGE tss ANTONY DOMINIC,J. --------------------- W.P.(C).No.21775 OF 2007 ------------------------ Dated this the 15th day of September, 2009. JUDGMENT Petitioner is a certificate holder in Instrument Mechanics and diploma holder in Electronics Engineering. In 1989 he was appointed under the 3rd respondent as a Mechanic. 2. On 1.7.2006, a vacancy in the category of Technical Assistant(Electronics) arose due to retirement of an incumbent. Ext.P1 Government Order lays down the qualification and method of appointment. In so far as the post of Technical Assistant(Electronics) is concerned, the qualification prescribed is Diploma in Electronics with 5 years experience in the maintenance of Electromedical/Electronic equipments. Method of appointment prescribed was by promotion of Electrician/Mechanics working in the Medical Colleges with WP(c).No.21775/07 2 any one of the qualifications prescribed or in their absence, by direct recruitment. 3. Petitioner contends that, he was the only eligible candidate and therefore, submitted Exts.P2 and P3 representations claiming promotion. It is stated that subsequently Government issued Ext.P4 order dated 5.2.2007 clarifying that senior most among any category of Mechanics having the qualifications prescribed in Ext.P1 can be considered for promotion and that as such, the 4th respondent was eligible for promotion. Petitioner again represented against the view taken in Ext.P4 and as nothing was forthcoming, he filed this writ petition. It is the petitioner's case that, during the pendency of this writ petition, by Ext.P6 order dated 4.9.2007, the 4th respondent was promoted. Accordingly the writ petition was amended incorporating a challenge against Ext.P6 as well. 4. The contention raised by the counsel for the petitioner is mainly that in Ext.P1 only Electrician and Mechanics are eligible and that the 4th respondent being a Lift Mechanic was WP(c).No.21775/07 3 not in the feeder category. Alternatively it is also contended that Ext.P4 clarification was issued only on 5.2.2007 and since the vacancy arose on 1.7.2006, the eligibility for promotion should be reckoned with reference to the position as it obtained on the date of occurrence of the vacancy. It is stated that if so taken the 4th respondent was ineligible. It is also his case that by Ext.P8 when a list of willing Mechanics for promotion was called for, seniority list was of eligible candidates was drawn, in which the 4th respondent's name did not even find a place. On these grounds counsel contends that the 4th respondent was ineligible for promotion and therefore Ext.P6 order is liable to be set aside and the petitioner is to be promoted. 5. The 4th respondent on the other hand contended that he is also a certificate holder in Electrician Trade appointed as per Ext.R4(a) order dated 26.11.1984 as Lift Mechanic. It is stated that he being eligible for promotion as Technical Assistant(Electronics) was granted time bound Higher Grades as per Exts.R4(g) and (h) orders. According to the 4th WP(c).No.21775/07 4 respondent, by Ext.R4(i) order dated 12.1.1982, Electrician- Cum-Mechanic was promoted as Technical Assistant (Electronics). It is also his case that relying on Ext.R4(i) a representation was made by another person claiming promotion to the post of Technical Assistant (Electronics) and that was rejected by Ext.R4(j) order dated 19.1.2000 stating that any Mechanic having qualification prescribed in Ext.P1 can be considered for promotion. 6. It is also stated that when the time bound Higher Grade granted to the 4th respondent, that was objected on the ground that he was ineligible for promotion, and the objection was overruled by Ext.R4(k) order. According to the 4th respondent by Ext.R4(l) he represented for promotion and thereupon Ext.R4(m) clarification was issued by the Government on 18.5.2001 reiterating that there was no specific mention regarding the branch of Mechanic in Ext.P1 and therefore any Mechanic having the prescribed qualification can be considered for promotion to the post of Technical Assistant (Electronics). WP(c).No.21775/07 5 7. He submits that thereafter, again the Government clarified his eligibility for promotion by Ext.P4 and therefore Ext.R4(h) select list was prepared including his name as well. According to the 4th respondent in Ext.P1 Government order the feeder category included is Technician/Mechanics. It is pointed out that the word `Mechanics' used in Ext.P1 as plural and therefore Mechanic from any discipline duly qualified are eligible to be considered for promotion. He also relies on Exts.R4(j), (m) and Ext.P4 to assert his eligibility for promotion. 8. The Learned Government Pleader also submits that the 4th respondent is eligible to be considered for promotion as any category of Mechanic is eligible in terms of Ext.P1 Rules. 9. In this writ petition the only question that arises for consideration is whether the 4th respondent was an eligible candidate entitled to be considered for promotion, going by Ext.P1, as clarified in Exts.P4, R4(j),(m) and (f). A reading of Ext.P1 shows that while enumerating the feeder category the WP(c).No.21775/07 6 word `Electrician' has been used in singluar form and the plural form 'mechanics' has been used specifying the category of mechanics, who are eligible to be considered for promotion. This necessarily suggest that different categories of Mechanics having the qualifications and experience prescribed in Ext.P1 are eligible to be considered for promotion to the post of Technical Assistant(Electronics). Petitioner has no case that the 4th respondent does not have the educational qualification prescribed in Ext.P1. A reading of Ext.R4(j),(m) and Ext.P4 shows that the Government also have taken the consistent stand that all categories of Mechanics come within the feeder category mentioned in Ext.P1. In my view, there is nothing unreasonable in the view taken by the Government in the aforesaid communications. If that be so, such a view cannot be regarded as an arbitrary or perversive warranting interference in a proceedings under Article 226 of the Constitution of India. 10. Another contention raised by the counsel for the petitioner is that since the vacancy arose on 1.7.2006 , WP(c).No.21775/07 7 subsequent clarification cannot govern the filling up of the previously arisen vacancy. In this respect Learned counsel for the 4th respondent relied on the judgment in S.B. Battacharjee V. S.D.Majumdar & Ors(AIR 2007 SC 2102) where it has been held that any clarification is, retrospective. Further, Exts. R4 (j) and R(m) shows that these clarifications were issued by the Government as early as on 19.1.2000 and 18.5.2001 respectively, which is much earlier than the date on which the vacancy arose. Therefore I do not find any merit in the contentions raised by the petitioner. Writ petition fails and is dismissed. (ANTONY DOMINIC) JUDGE vi/