IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR MONDAY, THE 11TH JANUARY 2010 / 21TH POUSHA 1931 WA.No. 2443 of 2009() --------------------- AGAINST THE JUDGMENT IN WPC.21775/2007 Dated 15/09/2009 .................... APPELLANT(S): WRIT PETITIONER ----------------------------- V.K.HARIDASAN, MECHANIC (HIGHER GRADE), RESIDING AT VELLAMTHADATHIL, AVARMA, PERUMPADAVAM P.O., KOTTAYAM. BY ADV. SRI.K.SASIKUMAR RESPONDENT(S): RESPONDENTS -------------------------- 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF HEALTH AND FAMILY WELFARE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM- 695 001. 2. THE DIRECTOR OF MEDICAL EDUCATION, DIRECTORATE OF MEDICAL EDUCATION, THIRUVANANTHAPURAM. 3. THE PRINCIPAL, MEDICAL COLLEGE, KOTTAYAM. 4. D.PAUL, LIFT MECHANIC, MEDICAL COLLEGE, KOTTAYAM. ADV. SRI.N.SUGATHAN FOR R4 SENIOR GOVT. PLEADER SRI.BENNY GERVASIS-R1 TO R3 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 11/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & C.T. RAVIKUMAR, JJ. --------------------------------------------- W.A. NO. 2443 OF 2009 --------------------------------------------- Dated this the 11th day of January, 2010 JUDGMENT Balakrishnan Nair, J. The appellant was the writ petitioner. The brief facts of the case are the following: 2. The appellant is a Mechanic (Higher Grade) working under the Medical Education Department. The 4th respondent is a Lift Mechanic working in the same Department. The dispute involved in this case is concerning their rival claims for promotion to the post of Technical Assistant (Electronics). A vacancy in the said post arose on 1.7.2006. Ext.P1 is the Government Order issued, in consultation with the Public Service Commission, prescribing the qualifications and method of appointment to the said post. The qualification prescribed is either Diploma in the subject with five years' experience or I.T.I. Certificate with ten years' experience. The method of appointment is by promotion of Electrician/Mechanics working in the Medical College. When a vacancy arose on 1.7.2006 in the above said post and as the claim of the appellant was not considered, he moved the Government. The Government W.A. NO.2443/2009 2 considered the matter and, as per Ext.P4, took the view that the 4th respondent, who is a Lift Mechanic, being a senior qualified hand, is eligible for promotion. Subsequently, based on a DPC list, the 4th respondent was promoted by Ext.P6 order. Challenging Exts.P4 and P6, the Writ Petition was filed. The learned Single Judge took the view that the stand taken by the Government cannot be said to be illegal and, therefore, dismissed the Writ Petition. Hence, this appeal. 3. In this appeal, the appellant did not seriously canvass the point that other Mechanics like the Lift Mechanics are ineligible to be considered for promotion as per Ext.P1. The main ground urged before us is that in view of Note (vi) to Rule 28(b)(i)(7) of the Kerala State and Subordinate Services Rules, as a Mechanic is drawing a higher pay than the Lift Mechanic, the person holding the post of Mechanic has to be preferred for promotion. The said Note reads as follows: “vi. When there are more than one feeder category carrying different scales of pay, they shall be shown in separate lists and persons in a lower scale of pay shall be appointed only after appointing all persons on a higher scale of pay, unless the Special Rules prescribe a ratio or any special order of preference for each feeder category.” W.A. NO.2443/2009 3 4. Learned counsel for the 4th respondent would submit that this is a point which was never urged in the Writ Petition. There are no pleadings before the Court and no arguments were also addressed on the point, though in the reply affidavit this contention was vaguely raised. In view of Rule 155 of the Kerala High Court Rules, the appellant can urge only the grounds which are taken in the Writ Petition. Learned counsel also submitted that a reading of the aforementioned Note would indicate that a person drawing a higher scale of pay should be preferred for promotion to the next post. Since the 4th respondent has already got a higher grade on completion of 18 years service in the post of Lift Mechanic, he was drawing a scale of pay of Rs.9,590-16,650/- whereas the appellant was drawing a scale of pay of Rs.9,190-15,510/-. So, the scale of pay before grant of higher grade is not relevant, it is submitted. 5. We heard the learned senior Government Pleader for the official respondents. He supported the view taken by the learned Single Judge and the contentions raised on behalf of the 4th respondent. 6. Going by Rule 159 of the Kerala High Court Rules, the provisions of Order XLI A of the Code of Civil Procedure, except Rule 2 thereof, are made applicable to Writ Appeals. If that be so, the pleadings W.A. NO.2443/2009 4 could be amended at the appellate stage also and in that event, the technical contention regarding the pleadings can be overruled. But, in this case, we notice that the above point was never raised before the Government and so, the Government did not get an opportunity to consider the same. Nor was it raised before the learned Single Judge. So, having regard to the facts of the case, we feel that the appellant/writ petitioner should be given an opportunity to move the Government, raising the above point to support his claim for promotion in preference to the 4th respondent. If such a representation is filed within one month from today, along with a copy of this judgment, the Government will consider the same and pass orders thereon within four months from the date of receipt of the representation, after affording an opportunity of being heard to the appellant and the 4th respondent. The Writ Appeal is disposed of as above. (K. BALAKRISHNAN NAIR) JUDGE (C.T. RAVIKUMAR) JUDGE sp/ W.A. NO.2443/2009 5 K. BALAKRISHNAN NAIR & C.T. RAVIKUMAR, JJ. W.A.NO.2443/2009 JUDGMENT 11th January, 2010 W.A. NO.2443/2009 6