IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 8TH OCTOBER 2010 / 16TH ASWINA 1932 WP(C).No. 29767 of 2008(R) ------------------------------------- PETITIONER(S): ----------------------- JAYADEV.P.S.,S/O.LATE LEELAVATHIAMMA, PALAMADA HOUSE, VENGOOR P.O., PANDIKKADU, PERUMBAVOOR, ERNAKULAM DISTRICT, LAB ATTENDANT, FOOD CRAFT INSTITUTE, THODUPUZHA. BY ADVS. SRI.P.K.RAMKUMAR SMT.ANITHA MENON RESPONDENT(S): ------------------------ 1. THE SECRETARY FOOD CRAFT INSTITUTE (KERALA) SOCIETY.P.O. KALAMASSERY, ERNAKULAM DISTRICT. 2. STATE OF KERALA REPRESENTED BY THE SECRETARY, DEPARTMENT OF TOURISM, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 3. JACOB THOMAS ROSHIN, MOOTHEDATH HOUSE, OCHANTHURUTH P.O., ERNAKULAM 682508, DEMONSTRATOR FOOD CRAFT INSTUTUTE. 4. MANOJ K.MATHEW, KAVUNGAL HOUSE, P.O.KOLENCHERY, ERNAKULAM DISTRICT, DEMONSTRATOR FOOD CRAFT INSTITUTE. 5. SMT.SUEBY ALEX, VALIYAVEETIL HOUSE, OLANAD P.O., VARAPUZHA, ERNAKULAM DEMONSTRATOR FOOD CRAFT INSTITUTE. 6. BABU JOSEPH, MOOLAN HOUSE, NAZRATH ROAD, ANGAMALY P.O. ERNAKULAM DISTRICT, DEMONSTRATOR FOOD CRAFT INSTITUTE. W.P.(C) NO.29767/2008 7. VIBIN KUMAR S. 33/692, PRAVEEN NIVAS MANIMALA ROAD, EDAPALLY, COCHIN, ERNAKULAM DEMONSTRATOR FOOD CRAFT INSTITUTE 8. ISMAIL CHENGANAKKATTIL, CHENGANAKKATTIL HOUSE, KLARI P.O., EDANKODE, MALAPPURAM DISTRICT, DEMONSTRATOR FOOD CRAFT INSTITUTE. 9. PROMODKUMAR K.N. NENNAYAPPALLIL, PADINJAREMURY P.O., VAIKOM, KOTTAYAM DISTRICT, DEMONSTRATOR FOOD CRAFT INSTITUTE. 10. AJITH KURIAN, POOVATHUMKAL, THUNDANGANAD P.O., THODUPUZHA, DEMONSTRATOR FOOD CRAFT INSTITUTE 11. SREEJITH S. THULASL, PATHIRAPPALLY P.O. ALAPPUZHA DISTRICT. DEMONSTRATOR FOOD CRAFT INSTITUTE. 12. HARIPARASAD S. THETTYCOUTE HOUSE, PRUMBAVOOR P.O., ERNAKULAM DISTRICT DEMONSTRATOR FFOD CRAFT INSTITUTE. R1 BY ADV. SRI.THOMAS MATHEW NELLIMOOTTIL R2 BY GOVT. PLEADER SRI.K.SANILKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.( C) NO.29767/2008 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE JUDGMENT IN WPC. 33422/07. P2:- COPY OF THE IST RESPONDENTS ORDER NO.C25/2007/1093 DTD. 30.11.07. P3:- COPY OF THE IST RESPONDENTS NOTIFICATION DT.D 19.6.07 PUBLISHED IN DESHABHIMANI DAILY. P4:- COPY OF THE IST RESPONDENTS NOTIFICATION DTD. 17.11.07 PUBLISHED IN MATHRUBHOOMI DAILY. P5:- COPY OF THE PETITIONERS APPLICATION TO THE POST OF DEMONSTRATOR DT. 29.11.07 WITH BIO DATA. P6:- COPY OF THE APPOINTMENT ORDER OF THE 3RD RESPONDENT TO THE POST OF DEMONSTRATOR DT. 5.8.08. P7:- COPY OF THE APPOINTMENT ORDER OF THE 4TH RESPONDENT TO THE POST OF DEMONSTRATOR DT.D 5.8.08. P8:- COPY OF THE APPOINTMENT ORDER OF THE 5TH RESPONDENT TO THE POST OF DEMONSTRATOR DT. 5.8.08. P9:- COPY OF THE APPOINTMENT ORDER OF THE 6TH RESPONDENT TO THE POST OF DEMONSTRATOR DTD. 5.8.08. P10:- COPY OF THE APPOINTMENT ORDER OF THE 7TH RESPONDENT TO THE POST OF DEMONSTRATOR DT.D 5.8.08. P11:- COPY OF THE APPOINTMENT ORDER OF THE 8TH RESPONDENT TO THE POST OF DEMONSTRATOR DT. 5.8.08. P12:- COPY OF THE APPOINTMENT ORDER OF THE 9TH RESPONDENT TO THE POST OF DEMONSTRATOR DT. 5.8.08. P13:- COPY OF THE APPOINTMENT ORDER OF THE 10TH RESPONDENT TO THE POST OF DEMONSTRATOR DT. 5.8.08. P14:- COPY OF THE APPOINTMENT ORDER OF THE 11TH RESPONDENT TO THE POST OF DEMONSTRATOR DT. 5.8.08. P15:- COPY OF THE APPOINTMENT ORDER OF THE 12TH RESPONDENT TO THE POST OF DEMONSTRATOR DT. 5.8.08. TRUE COPY P.A. TO JUDGE tss T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.29767/2008-R ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 8th day of October, 2010 J U D G M E N T The petitioner seeks to challenge the non consideration of his application for selection to the post of Demonstrator in the service of the first respondent. 2. The petitioner is already working in the same institution and he started his career as Cleaner in the first respondent Institution. His mother was also working as a Cleaner there. He was having Pre-degree at the time of appointment. Then he pursued his studies for B.Sc course in Hospitality Science with the permission of the first respondent after availing three years' leave without allowance. After obtaining Degree, he rejoined duty as Cleaner from 31/05/2007. 3. Staking his claim for promotion, he approached the first respondent and thereafter, approached this Court by filing W.P.(C).No.33422/2007 for a direction to the respondents to grant him promotion to the post of Demonstrator after keeping one out of 12 vacancies for promotion for existing employees. This Court by Ext.P1 Judgment dated 13/11/2007 directed the first respondent to consider his request. Thereafter, by Ext.P2 Order dated 30/11/2007 he was promoted as Lab Attendant and posted in W.P.(C). No.29767/2008 -:2:- Food Craft Institute, Thodupuzha. The process of selection to the post of Demonstrator was initiated by the first respondent as per Ext.P3 notification dated 19/06/2007. It appears that this notification was not pursued and, thereafter, another notification dated 24/10/2007 was published and, he submitted an application as per Ext.P5. Alleging that the application is not being considered, this writ petition was filed. It is averred in paragraph (4) of the writ petition that a written test and interview was conducted on 15/06/2008 and 02/07/2008 respectively. The copies of the appointment orders have been produced as Exts.P6 to P15 and the selected candidates have also been arrayed as party respondents. The first respondent has filed a detailed counter affidavit. 4. Heard both sides. The learned counsel for the petitioner submitted that after the petitioner obtained the qualification, he was entitled for promotion. But, inspite of the direction by this Court in Ext.P1 Judgment, he was not given reply also. Therefore, the promotion granted then as Lab Attendant is not made in terms of the directions in Ext.P1 Judgment. It is therefore, submitted that in the light of directions in Ext.P1 Judgment, his application submitted as per Ext.P5 ought to have been considered and the rejection of the application is illegal. W.P.(C). No.29767/2008 -:3:- 5. In the counter affidavit filed by the first respondent, the stand taken is that the respondent has fully complied with the directions in Ext.P1 Judgment by promoting the petitioner as Lab Attendant on 30/11/2007. Pursuant to notification dated 19/06/2007, because of certain complaints, the selection could not be proceeded with. Thereafter, the Executive Committee took a decision to issue a fresh notification for filling-up the post of six Instructors and 12 Demonstrators. 6. The qualification for the post of Demonstrator as averred in the counter affidavit is the following:- “Degree/Diploma in Hotel Management & Catering Technology (3yrs/4yrs Course) from a recognised University/State Board of Technical Education/National Council for Hotel Management & Catering Technology, New Delhi or from an Institute having AICTE approval with at least one year practical experience in a reputed Hotel or a Certificate course passed with at least 60% marks in the relevant trade from National Council for Hotel Management & Catering Technology/State Technical Board and 3yrs practical experience in a reputed Hotel.” The stand taken is that the petitioner is not having the requisite experience qualification, namely, one year practical experience in a reputed Hotel. W.P.(C). No.29767/2008 -:4:- 7. The learned counsel for the petitioner further submitted that the adoption of the Rules is only in the year 2008 and, therefore the experience required as per the notification cannot stand scrutiny. This contention does not arise for consideration in the light of the fact that the notification or the decision fixing the qualification has not been challenged in the writ petition. 8. Therefore, what remains to be considered is the claim of the petitioner for appointment as Demonstrator on the basis of Ext.P1 Judgment. In fact, in Ext.P1 Judgment, the direction was to only consider his representation. This Court had no occasion to adjudicate the merits of the candidate therein. The petitioner could have, if he was aggrieved by the promotion as Lab Attendant, either complained to the first respondent for not promoting him as Demonstrator or approached this Court. 9. The learned counsel for the petitioner submitted that his grievance regarding the non granting of promotion as Demonstrator has been highlighted in the writ petition and reliefs have been sought for in that regard also. 10. The petitioner has automatically been found eligible for promotion as Lab Attendant. The notification as regards the post of Demonstrator is not for any appointment by way of promotion but for direct recruitment. W.P.(C). No.29767/2008 -:5:- True that he also applied to the post. The claim for promotion and the claim for appointment by way of direct recruitment are quite different because these two are different streams. Therefore, when he is opting for direct recruitment, the petitioner will have to fulfil all the qualifications required including experience. In that view of the matter, as the petitioner had submitted application pursuant to the notification for appointment by direct recruitment unless and until he fulfils all the qualifications namely, academic as well as experience, his application could not have been considered by the first respondent. In that view of the matter, the rejection of the application cannot be faulted. What remains is the claim for promotion as Demonstrator. It is pointed out that the petitioner has not received any reply so far, inspite of the direction issued in Ext.P1 Judgment. The first respondent has stated in the counter affidavit that due promotion was given to the petitioner as Lab Attendant. 11. Therefore, the writ petition is dismissed. In the light of the complaint raised by the petitioner that inspite of Ext.P1 Judgment no formal reply was given after considering his claim, the first respondent will furnish a reply after considering his claim, if any, for promotion as Demonstrator within a period of two months from the date of W.P.(C). No.29767/2008 -:6:- receipt of a copy of this Judgment and the dismissal of the writ petition will not stand in the way of considering the same in accordance with law. No costs. (T.R. Ramachandran Nair, Judge.) ms