IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 24TH JANUARY 2008 / 4TH MAGHA 1929 WP(C).No. 22054 of 2003(S) -------------------------- PETITIONER: ------------ M.K.PRATHAPAN, ENGINEER, S.C., C.M.S. GROUP, REPLACE, V.S.S.C., VATTIYOORKAVU P.O.,THIRUVANANTHAPURAM. BY ADV. SRI.S.GOPAKUMARAN NAIR (SR) RESPONDENTS: ------------- 1. THE ADMINISTRATIVE OFFICER II (EST), ESTABLISHMENT SECTION, V.S.S.C.,THIRUVANANTHAPURAM 2. THE DIRECTOR, V.S.S.C., THIRUVANANTHAPURAM. 3. THE JOINT SECRETARY, DPS/MEMBER (PERSONNEL), I.S.R.O. COUNCIL, I.S.R.O. HEADQUARTERS, BANGALORE. BY SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR GENERAL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC 22054/2003 APPENDIX PETITIONER'S EXTS, EXT.P1 - TRUE COPY OF THE MEMORANDUM NO.VSSC/EST/F/1(1) DATED 18.1.1999 ISSUED BY THE ADMINISTRATIVE OFFICER -II (EST.). EXT.P2 - TRUE COPY OF THE MEMORANDUM NO.VSSC/PGA/CDS/22(85) DATED 12.1.1998. EXT.P3 - TRUE COPY OF THE MEMORANDUM NO.VSSC/PGA/CDS/22(126) DATED 22.6.1998. EXT.P4 - TRUE COPY OF THE REPRESENTATION DATED JAN. 1998. EXT.P5 - TRUE COPY OF THE REPLY FROM THE ESTABLISHMENT DATED APRIL, 1998 (20.4.98). EXT.P6 - TRUE COPY OF THE DETAILED REPRESENTATION DATED 9.4.1998 ADDRESSED TO THE JOINT SECRETARY, THE 3RD RESPONDENT. EXT.P7 - TRUE COPY OF THE O.A.298/1999 FILED IN THE CENTRAL ADMINISTRATIVE TRIBUNAL. EXT.P8 - TRUE COPY OF THE REPLY STATEMENT BY THE RESPONDENT TO THE O.A. DATED 19.8.1999. EXT.P9 - TRUE COPY OF THE ORDER OF THE CENTRAL ADMINISTRATIVE TRIBUNAL DATED 2.8.2001. EXT.P10 - TRUE COPY OF THE REVIEW APPLICATION AS R.A.NO.34/2001 BEFORE THE CENTRAL ADMINISTRATIVE TRIBUNAL. EXT.P11 - TRUE COPY OF THE MEMORANDUM NO.VSSC/EST/F/1(5) DT. 9.1.1995. EXT.P12 – TRUE COPY OF THE ORDER IN REVIEW APPLICATION DATED 4.9.2002. RESPONDENTS' EXTS. EXT.R1(a) – TRUE COPY OF THE O.M. DATED 11.7.1989 ISSUED BY THE GOVERNMENT OF INDIA. EXT.R1(b) – TRUE COPY OF THE O.M. DATED 29.3.1989 ISSUED BY THE GOVERNMENT OF INDIA. EXT.R1(c) – TRUE COPY OF THE O.M. DATED 21.4.1989 ISSUED BY THE GOVERNMENT OF INDIA. /TRUE COPY/ K.BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ. ----------------------------------------- W.P.(C) NO. 22054 OF 2003-S ----------------------------------------- Dated 24th January, 2008. JUDGMENT Balakrishnan Nair, J. The applicant in O.A.No.298/1999 before the Central Administrative Tribunal, Ernakulam Bench is the writ petitioner. The respondents therein are the respondents. The said O.A was dismissed by the C.A.T. Hence this writ petition. 2. The petitioner was an Engineer SC, working under the Vikram Sarabhai Space Centre (VSSC), Thiruvananthapuram. He joined the service of the said Centre in 1982 as Draftsman with Diploma in Mechanical Engineering. In 1990 he was promoted to the Grade of SB. While so, in 1993 he completed the B.Tech. Degree with first class from the Kerala University. On 19.12.1994 he claimed placement in the Grade of SC under the special review scheme, taking into account the higher qualification acquired by him. The same was rejected by Ext.P11 memorandum dated 9.1.1995, on the ground that he did not register his additional qualification Wpc 22054/2003 2 in time with the competent authority and did not apply for special review in time. Later, he filed Ext.P4 representation dated 19.1.1998, claiming upgradation as Engineer SD, based on the additional qualification acquired by him. The same was rejected by the competent authority by Ext.P5 memorandum dated 20.4.1998. Later on 9.4.1998 he filed a detailed representation, a copy of which is produced as Ext.P6. The same was considered and rejected by Ext.P1 communication dated 18.1.1999. The petitioner filed the above O.A., challenging Ext.P1 and also seeking consequential reliefs. The respondents therein filed Ext.P8 reply statement. In the said reply, it is stated that the petitioner did not ask for a special review on 1.1.1995 in December, 1994, based on the additional qualification of B.Tech. Degree acquired by him. Instead, he opted to get upgradation based on his Diploma qualification. Since the petitioner did not avail the opportunity in time, the same has resulted in forfeiture of his chance. Now he has to progress through the normal review channel. The petitioner submits, he did not file any rejoinder, because at the relevant time he did not have the materials with him to show that he applied for special review in December, 1994. The Tribunal upheld the contentions of the respondents and dismissed the O.A., by Ext.P9 order dated 2.8.2001. The petitioner later filed Ext.P10 application for review and along with that he Wpc 22054/2003 3 produced Ext.P11 memorandum issued by the competent authority of the V.S.S.C on 9.1.1995. It will show that the petitioner, in fact, applied for special review on 19.12.1994. Therefore, the statement made in the reply statement that he did not apply for special review in December, 1994 and so he was not considered under the special review scheme on 1.1.1995, is incorrect. Based on these facts the petitioner canvassed for reviewing the order of the C.A.T. The Tribunal considered Ext.P10 application as also the impact of Ext.P11. It was held that since Ext.P11 was issued on 9.1.1995, rejecting the applicant's claim and the same has become final, he is not entitled to get any relief. Thus, his review petition was dismissed by Ext.P12 order dated 4.9.2002. This writ petition was filed challenging Exts.P1, P9 and P12. 3. The respondents have filed a counter affidavit and along with that they have produced Ext.R1(a), which governs the procedure of special review, on acquisition of additional qualification by an incumbent while in service, issued on 11.7.1989. The respondents also asserted that the petitioner did not move for special review in terms of Ext.R1(a) in time. He did not inform the competent authority regarding the additional qualification also, within three months. Therefore, he was not considered under the special review scheme. According to them, therefore, he is Wpc 22054/2003 4 entitled to be considered only according to the normal channel and he has been considered and promoted in due course. 4. Heard the learned counsel on both sides. Sri.S.Gopakumaran Nair, learned senior counsel appearing for the writ petitioner contended that the respondents did not have a consistent stand with reference to the case put forward by the petitioner. In Ext.P1 memorandum dated 18.1.1999 they took the stand that the petitioner is not entitled to get the benefit of Ext.P2. It was meant only for direct recruits with Degree or Post-graduate Degree to the Scientist/Engineering Grade. But, while defending the O.A challenging Ext.P1, they took the stand that the petitioner did not apply for special review in time. The said stand was proved to be incorrect, in view of Ext.P11. But, the Tribunal did not review its order, notwithstanding the production of Ext.P11, to show that the petitioner applied for special review in time. 5. We notice that Ext.P2 has no application to the case of the petitioner, as evident from para 6 of the same, which reads as follows: “Procedures laid down in this OM regarding fitment/placement and special consideration for further review to “SD” grade for existing persons enunciated as above will not apply to such of those Scientists/Engineers whose recruitment was based on educational qualifications lower than BE/M.Sc./M.Tech. They will continue to progress in their career as per the existing orders on the subject.” Wpc 22054/2003 5 It is not in dispute that the special review for promotion at the instance of the incumbents who acquire Degree while in service, is governed by Ext.R1 (a). As evident from that, for a special review on 1.1.1995, the application should be submitted before 1.10.1994. In this case, admittedly, the application was submitted by the petitioner for special review on 1.1.1995, only on 19.12.1994. The statement in the reply statement of the respondents that the petitioner should have applied in December, 1994, is plainly a mistake. Going by Ext.R1(a), the applicant should have applied before 1.10.1994. As evident from the materials on record, he has failed to apply in time. Secondly, the case of the respondents regarding the failure of the petitioner to inform the acquisition of additional qualification to the competent authority within three months of the publication of results, is also remaining uncontroverted. Therefore, his claim for special review was rejected by Ext.P11 rightly. The same was never challenged by the petitioner. So, we are of the view that the stand of the respondents that he can claim promotion only as per the normal channel, cannot be interfered with. We find nothing illegal or improper with the orders of the C.A.T., Wpc 22054/2003 6 declining to interfere with the impugned order challenged before it. In the result, the writ petition fails and it is dismissed. K.BALAKRISHNAN NAIR, JUDGE. P.N.RAVINDRAN, JUDGE. Nm/