IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR MONDAY, THE 5TH APRIL 2010 / 15TH CHAITHRA 1932 WP(C).No. 7064 of 2010(G) ------------------------- PETITIONER(S): --------------- 1. SURESH P., WORKSHOP ATTENDER, GOVERNMENT I.T.I., CHELAKKARA, THRISSUR. 2. ANISH P., WORKSHOP ATTENDER, GOVERNMENT I.T.I., MARANCHERY, MALAPPURAM. BY ADV. SRI.ELVIN PETER P.J. SMT.POOJA SURENDRAN SRI.S.RAMESH BABU RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, LABOUR AND REHABILITATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF INDUSTRIAL TRAINING, DIRECTORATE OF INDUSTRIAL TRAINING, THIRUVANANTHAPURAM. 3. THE JOINT DIRECTOR OF INDUSTRIAL TRAINING, DIRECTORATE OF INDUSTRIAL TRAINING, THIRUVANANTHAPURAM. GOVT.PLEADER SRI.ANTONY MUKKATH THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05/04/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.T. RAVIKUMAR, J. -------------------------------------------- W.P.(C). NO. 7064 OF 2010 -------------------------------------------- Dated this the 5th day of April, 2010 JUDGMENT The petitioners are Workshop Attenders attached to the Government Industrial Training Institutes. This Writ Petition has been filed mainly with the prayer to issue a writ of mandamus commanding the respondents to forthwith fill up the existing vacancies of Junior Instructor/Arithmetic-cum- Drawing Instructor. The further prayer in this Writ Petition is for a declaration that the action of the respondents in not filling up the 45 vacancies of Junior Instructor/Arithmetic-cum-Drawing Instructor as illegal, unconstitutional and violative of Article 14 of the Constitution of India. To fortify the claim for promotion, the petitioners have also relied on Ext.P7 order dated 3.2.2010 of this Court, in W.P.(C).No.35316/2009. 2. The post of Junior Instructor/Arithmetic-cum-Drawing Instructor is borne on the Kerala Craftsmen Training Subordinate Service (for short 'the Rules only). Going by the relevant provision under the aforesaid Rules, promotions to the aforesaid post have to be effected from Category 4 Workshop Attenders. On 8.12.2009, this Court passed an interim W.P.(C) NO.7064/2010 2 order in W.P.(C).No.35316/2009 staying all further promotions to the post of Junior Instructor/Arithmetic-cum-Junior Instructor except in accordance with the Special Rules, pending consideration of the Writ Petition. Ext.P2 therein is the copy of the Special Rules and Ext.P3 is the common gradation list of the Workshop Attenders. As per order dated 3.2.2010, considering the stand taken by the third respondent therein, a clarification was issued to the order dated 8.12.2009. It was made clear therein that the availability of candidates possessing the prescribed qualifications under 2 (a) and (b) of the Special Rules is a matter to be looked into by the competent authority at the time of effecting promotions in accordance with the relevant provisions and further made clear that the possibility of getting persons possessing prescribed qualifications under those categories is not the look out of the third respondent. However, taking note of the fact that in spite of such incompetency, the third respondent had entered into a definite finding in respect of that issue. The second respondent therein, the Director of Industrial Training was directed to consider the question of effecting promotion to the post of Junior Instructor including Arithmetic -cum-Drawing Instructor strictly in terms of the relevant rules in the Special Rules as per order dated 3.2.2010. It was also made clear therein that the interim order dated 8.12.2009 in W.P.(C).No.35316/2009 W.P.(C) NO.7064/2010 3 would not stand in the way of such consideration of qualified hands for promotion. The grievance of the petitioner is that despite the said order viz., Ext.P7 order, the respondents are not taking any steps to fill up the available vacancies in the post of Junior Instructor/Arithmetic-cum- Drawing Instructor. According to the petitioners, 45 vacancies are available in the said cadre. 3. A scanning of the contentions raised in the averments of the petitioners would reveal that they are staking claims of promotion on account of the fact that 45 vacancies are available in the post of Junior Instructor/Arithmetic-cum-Drawing Instructor. According to the petitioners, they have a fundamental right for being considered for promotion against those vacancies. If the petitioners are qualified seniors at the time of consideration for effecting promotions to the aforesaid posts, necessarily, they will have to be considered in accordance with the relevant provisions under the Special Rules. But the question is whether this Court can issue a writ of mandamus commanding the respondents to fill up those existing vacancies of Junior Instructor/Arithmetic-cum- Drawing Instructor. The settled position is that mere existence of vacancies will not and cannot confer a right on the concerned W.P.(C) NO.7064/2010 4 employee/employees for seeking a writ of mandamus commanding the concerned respondents to fill up those vacancies. Whether to fill up the existing vacancies or not in a department is primarily a matter which falls within the realm of power of the Government. When the respondents are taking steps for filling up those vacancies in terms of the relevant rules and the seniority position in case the petitioners fall within the zone of consideration and if they are fully qualified they would be considered for promotion. The petitioners did not have a case that they were overlooked in the matter of promotion and their juniors were given promotions ignoring their legitimate claims. I am of the considered view that the petitioners cannot, therefore, approach this Court with a prayer to issue a writ of mandamus commanding the respondents to fill up those vacancies merely because vacancies are existing in the post of Junior Instructor/Arithmetic-cum-Drawing Instructors. In that view of the matter, this Court cannot make a declaration as sought for in this Writ Petition. In the context of the contentions of the petitioners, it is to be noted that as per Ext.P7, this Court virtually made it clear that the order dated 8.12.2009 in W.P.(C).No.35316/2009 will not be an impediment for effecting promotions to the aforesaid posts. Therefore, it is up to the concerned competent authority to decide whether the vacancies available in the post W.P.(C) NO.7064/2010 5 of Junior Instructor/Arithmetic-cum-Drawing Instructor is to be filled up or not taking into account various aspects. However, the respondents cannot ignore the fact that keeping a large number of vacancies in the post of Junior Instructor/Arithmetic-cum-Drawing Instructor unfilled would detrimentally affect the student community in the said institutions as a whole. Therefore, it will only be appropriate for the Government to bestow attention in the matter, at the earliest. Subject to the above observations, this Writ Petition is dismissed. (C.T. RAVIKUMAR, JUDGE) spc W.P.(C) NO.7064/2010 6 C.T. RAVIKUMAR, J. W.P.(C). NO. /2010 JUDGMENT 3rd March, 2010 W.P.(C) NO.7064/2010 7