IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI FRIDAY, THE 4TH JULY 2008 / 13TH ASHADHA 1930 WP(C).No. 15614 of 2008(H) -------------------------- PETITIONER: -------------- M.J.SEBASTIAN, AGED 54 YEARS, (DATE OF BIRTH 15.07.1953) S/O.JOSEPH, NOW WORKING AS ASST. EXECUTIVE ENGINEER, GROUND WATER DEPARTMENT, THODUPUZHA, IDUKKI. BY ADV. SRI.V.R.KESAVA KAIMAL SRI.N.M.MADHU RESPONDENTS: ----------------- 1. THE STATE OF KERALA REP. BY ITS ADDITIONAL CHIEF SECRETARY, IRRIGATION (GW) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR, GROUND WATER DEPARTMENT, JALAVIJNANA BHAVAN, KAWDIAR P.O., THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER ADV.SRI.NANDAKUMAR FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.GIRI,J. ------------------------- W.P ( C) No.15614 of 2008 -------------------------- Dated this the 4th July, 2008 J U D G M E N T Petitioner is working as Assistant Executive Engineer. Petitioner, who is a Diploma holder in Mechanical Engineering, submits that he is the seniormost Assistant Executive Engineer in the Ground Water Department. He is due to retire on 31.7.2008. 2. As per Exhibit-P1 Circular, when there is no select list for promotion to the post in question, the Government can direct provisional promotion to be effected, for the purpose of enabling any incumbent who is due to retire within next six months to be so promoted provided there is not a large number of persons to be promoted as such. Petitioner refers to the case of one Sri.B.Vijayan, Executive Engineer who is junior to the petitioner. Going by Exhibit-P5 order also, petitioner had approached this Court seeking a direction to the respondents to consider his case for provisional promotion and pursuant to Exhibit-P2 judgment, Government passed Exhibit-P3 order directing that W.P ( C) No.15614 of 2008 2 Sri.B.Vijayan be promoted as Executive Engineer and posted in the District Office at Ernakulam in relaxation of the qualifications. Petitioner's claim for promotion was directed to be considered by this Court under Exhibit-P4 judgment. That has now been rejected under Exhibit-P7 order. Exhibit-P7 reads as follows. “I am to invite your attention to the reference cited and to inform you that the petitioner, Sri. M.J.Sebastian who is a diploma holder is not qualified for promotion to the post of Executive Engineer as per Special Rules. Government have, therefore,decided not to promote Sri. M.J. Sebastian, in relaxation of qualifications prescribed in Special Rules. 3. Exhibit-P7 is challenged in this writ petition. A statement has been filed on behalf of the 1st respondent. 4. I heard learned counsel for the petitioner Sri.V.R.K. Kaimal and learned senior Government Pleader Sri.Nandakumar. Paragraph 4 of the statement reads as follows: “It is submitted that as per Special Rules, 5% of the cadre strength of Executive Engineer is ear-marked for Assistant Executive Engineers having diploma qualification. The Director, Ground Water Department had reported that cadre strength of Executive Engineer in Ground Water Department is 7 and the petitioner being a W.P ( C) No.15614 of 2008 3 diploma holder is not entitled to get promotion since 5% of 7 falls below one post. 5. It is therefore clear that the Government has rejected the petitioner's claim for provisional promotion on the premise that only 5% in the cadre strength of Asst. Executive Engineers is available for promotion to persons with diploma, the cadre strength of Executive Engineer in the Ground Water Department is 7 and therefore the petitioner being a diploma holder is not entitled to get promotion since 5% of 7 falls below. In the circumstances, Government, apparently, declined to exercise its discretion in favour of the petitioner. I am not impressed with the stand so taken by the Government. It is true that the petitioner cannot claim a right to provisional promotion. It is also clear that the Government has a discretion to grant provisional promotion or deny the same. But there are two factors, in my view, which remains unexplained by the Government. The first is that Sri. Vijayan, who is granted promotion under Exhibit-P3, is also a Diploma holder. Therefore, going by the reason now adopted, Sri. Vijayan W.P ( C) No.15614 of 2008 4 should also have been denied promotion. The petitioner as on date is the seniormost among the Asst. Executive Engineer. It is not as if Exhibit-P1 circular dispensed with the rule of seniority even in the matter of effecting provisional promotion. Though as per the circular in the matter of effecting provisional promotion, Government can relax the rules as such, in the exercise of discretion there cannot be any arbitrariness. In the result, the writ petition is allowed. Exhibit-P7 is set aside. Government is directed to pass fresh orders in the matter of provisional promotion to the petitioner to the post of Executive Engineer in the Ground Water Department on or before 25.7.2008. It is made clear that if the Government has no intention to review the grant of provisional promotion effected in favour of Sri. B.Vijayan under Exhibit-P3, then the petitioner shall also be granted such provisional promotion. The writ petition is disposed of as above. (V.GIRI, JUDGE) ma W.P ( C) No.15614 of 2008 5 W.P ( C) No.15614 of 2008 6