IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 23RD MARCH 2009 / 2ND CHAITHRA 1931 WP(C).No. 33514 of 2008(M) ------------------------------------------ PETITIONER(S): ------------------------- T.K. VENUGOPAL, AGED 45, S/O. LATE THANKAPPAN, I GRADE OVERSEER, GURUVAYOOR DEVASWOM, GURUVAYOOR. BY ADVS. MR.V.RAJENDRAN (PERUMBAVOOR), MR.GEORGE VARGHESE KIZHAKKAMBALAM. RESPONDENT(S): ---------------------------- 1. GURUVAYUR DEVASWOM COMMISSIONER, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. GURUVAYUR DEVASWOM, BOARD MANAGING COMMITTEE, REPRESENTED BY THE ADMINISTRATOR, GURUVAYUR DEVASWOM BOARD, GURUVAYUR. 3. MOHANKUMAR, AGED ABOUT 50, ASSISTANT ENGINEER, ELECTRICAL AND WASTE SUPPLY SECTION, GURUVAYUR DEVASWOM, GURUVAYOOR. R2 BYB ADV. SRI.P.NANDAKUMAR,SC,GURUVAYUR D BOARD THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.33514/2008 M APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF RELEVANT PAGES OF G.O.(P) NO.145/2006/FM DTD. 25/03/06. EXT.P2: COPY OF A REPRESENTATION SUBMITTED BY THE 1ST GRADE OVERSEERS INCLUDING THE PETITIONER BEFORE THE 2ND RESPONDENT ON 15/03/08. EXT.P3: COPY OF REPRESENTATION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT ON 10/10/06. EXT.P4: COPY OF JUDGMENT OF THIS HON'BLE COURT IN O.P.NO. 15832/93 DTD. 5/08/99. EXT.P5: COPY OF G.O.(P) NO.3000/98 FIN DTD. 25/11/08. EXT.P6: COPY OF ORDER OF THE RESPONDENT DEVASWOM IN BEARING NO.A3-3634/04 DTD. 12/05/05. EXT.P7: COPY OF THE LETTER SUBMITTED BY PETITION BEFORE THE 2ND RESPONDENT ON 20/04/06. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss T.R.RAMACHANDRAN NAIR, J -------------------------------------------------- W.P.(C) No. 33514 of 2008 --------------------------------------------------- Dated this the 23rd day of March, 2009 JUDGMENT The petitioner is presently working as 1st Grade Overseer attached to the Electrical and Water Supply wing of Guruvayoor Devaswom. He joined service as 2nd Grade Overseer on 8.8.1986 and was promoted as 1st Grade Overseer with effect from 1.8.1997. The next promotion is to the post of Assistant Engineer. The petitioner had already been granted higher grade in the scale of pay of Assistant Engineer with effect from November, 2004. 2. The third respondent is senior in service to the petitioner in the cadre of Overseer Grade I. The dispute is regarding the promotion to the post of Assistant Engineer to which post the 3rd respondent has already been promoted in the vacancy which arose on 17.10.2008. In the year 2006 a new post of Executive Engineer was created in Electrical and Water Supply division and the then Assistant Executive Engineer was promoted to that post on 17.10.2008. Accordingly the post of Assistant Engineer became vacant. This was filled up by promoting the 3rd respondent. wpc:33514 of 2008 2 3. The challenge made by the petitioner is against the said promotion made in favour of the 3rd respondent. The grounds of challenge are mainly that as on the date of occurrence of vacancy, the 3rd respondent had not acquired test qualifications prescribed under Regulation 9 of the Guruvayoor Devaswom Employees Regulations,1983. The petitioner had acquired the test qualifications in the years between 2004-2006. In that view of the matter the promotion granted to 3rd respondent is illegal. 4. The regulations in force have been framed under Section 39 of the Guruvayoor Devaswom Act. The learned counsel appearing for the petitioner relied upon Regulation No.5C which prescribes the method of appointment in the posts of Executive Engineer, Assistant Executive Engineer and Assistant Engineers etc. wherein the Managing Committee has to fill up the posts from among the members eligible for appointment to such category on the basis of merit and ability, seniority is being considered where merit and ability are approximately equal. My attention is invited to Regulation No.9(a) providing for passing of tests. It is reproduced below: 9.Test:(a) Every person appointed to the posts of wpc:33514 of 2008 3 Executive Engineer, Assistant Executive Engineer, Assistant Engineer shall within the period of probation pass the Kerala P.W.D.Test 2 papers and the Account Test (Lower) I paper on Kerala Service Rules and II paper on Budget Manual and Financial Code conducted by the Kerala Public Service Commission unless he has passed the tests previously. 5. The learned counsel relied upon the proviso which provides that “a person who is employed on a regular basis in the Guruvayoor Devaswom service on the date of approval of these Regulations by the Kerala Government shall be granted a temporary exemption for a period of two years from that date from passing the Tests mentioned above and may be promoted to the higher post temporarily if he is otherwise qualified. If the person so promoted does not pass the Test prescribed within the period of temporary exemption, he shall be reverted to the post from which he was promoted and shall not be eligible for re-promotion unless he has passed the Tests. Persons who have attained the age of 50 years need not be acquire the test qualification. wpc:33514 of 2008 4 6. The petitioner has averred in para 8 of the writ petition that at the time of giving grade promotion to the 3rd respondent he had not passed the departmental test. He has not passed the departmental test even now. Therefore, he is not test qualified with effect from the date on which he was given grade or regular promotion. Hence the post of Assistant Engineer should have been filled up only from 1st grade Overseers having test qualification. It is submitted that the petitioner being the senior most 1st grade Overseer he should have been promoted as Assistant Engineer. Ext.P3 is representation filed by him in the matter. 7. The respondents have filed a counter affidavit and the petitioner has filed a reply affidavit also. In para 8 of the counter affidavit it is stated that the petitioner has not yet passed all the test qualifications required for Assistant Engineer’s post. The petitioner has not passed the tests relating to Indian Electricity Act, Electrical Supply Act, etc. conducted by the PSC, nor he has completed 50 years of age to get exemption. It is therefore, pointed out that the third respondent who is senior to the petitioner was promoted. wpc:33514 of 2008 5 8. In the reply affidavit petitioner points out that he has passed all the departmental tests in the year 2006 and accordingly submitted a report before the 2nd respondent on 20.04.2006. Ext.P7 is the said report. It is clearly stated in the reply affidavit that the 3rd respondent was given grade promotion in the scale of Assistant Engineer in the year 1998 and he ought to have passed the department tests within 2 years from the date on which he was given grade promotion. But even at this stage he has not passed the required department tests. It is therefore pointed out that ignoring the same he has been given an illegal promotion. 9. The first question is whether the petitioner is qualified for promotion as on the date of occurrence of vacancy. Going by the averments in the reply affidavit he has passed only the department tests prescribed by Regulation No.9. Further question is whether it is essential to pass the test relevant under Indian Electricity Act etc. Respondents have not produced any regulation or administrative instruction requiring for passing of the said tests for promotion as Assistant Engineer. If those tests have not been prescribed by any regulation, rule or executive order the respondents will not be justified in insisting that the petitioner wpc:33514 of 2008 6 should have acquired the said tests also for the purpose of getting promotion as Assistant Engineer. There is one more important aspect that is Indian Electricity Act, 1910 and Electricity Supply Act, 1948 have been repealed by New Electricity Act, 2003. Herein the vacancy as pointed above, arose on 17.10.2008. Therefore, in the light of the facts revealed as above the respondents will not be justified in insisting that the petitioner should pass the said tests unless it is prescribed by any regulation or administrative order, insisting that the concerned officers should pass a test in respect of the Electricity Act, 2003. There are no materials herein to support the above plea made by the respondents. 10. The next question is whether the 3rd respondent who has not acquired the test could have been promoted. The averments of the petitioner regarding absence of test qualification by the 3rd respondent are not denied. It is pointed out that when he was given grade promotion he had not passed the departmental tests. If that is so, the proviso to Regulation No.9 will have to apply and he should have suffered a cancellation of the grade promotion that was granted to him. Therefore, while considering his claim for promotion and by assessing the merit and ability the crucial aspects would have worked against him. Clearly those aspects wpc:33514 of 2008 7 have not been examined by the Managing Committee. Going by the credentials of the petitioner, he is a person who has acquired the test prescribed under Regulation No.9 and thus is qualified. 11. The entire issue will be re-considered by the Devaswom in the light of the legal position discussed above. Petitioner will file an appropriate representation detailing his grievances within a period of 10 days alongwith a copy of this writ petition and the judgment. The matter will be reconsidered with a notice to the petitioner and the 3rd respondent. The matter will be reconsidered by the competent authority in accordance with the regulations and other orders, if any, in the matter. The same shall be done within a period of two months from the date of receipt of a copy of this judgment. T.R.RAMACHANDRAN NAIR, JUDGE bps