IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 20TH JULY 2009 / 29TH ASHADHA 1931 WP(C).No. 3108 of 2007(T) ------------------------- PETITIONER: ------------------ M.NASEEMA, L.D.CLERK, MSM.COLLEGE, KAYAMKULAM. BY ADV. SMT.S.KARTHIKA SMT.T.B.REMANI SRI.M.S.UNNIKRISHNAN SMT.K.P.GEETHA MANI SRI.M.R.ANISON SRI.T.R.RAJESH RESPONDENTS: ---------------------- 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF COLLEGITE EDUCATION, TRIVANDRUM. 3. THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, KOLLAM. 4. THE CHAIRMAN AND SECRETARY, GOVERNING BODY, MILAD-E-SHERIF MEMORIAL COLLEGE, KAYAMKULAM. 5. THE PRINCIPL, MSM COLLEGE, KAYAMKULAM. 6. N.ABDUL LATHIEF, ATTENDER, MSM COLLEGE, KAYAMKULAM. 7. K.BABU, ATTENDER, MSM COLLEGE, KAYAMKULAM. 8. M.SALIM, LOWER DIVISION CLERK, MSM COLLEGE, KAYAMKULAM. R6-8 & R4 BY ADV. SRI.R.RAJASEKHARAN PILLAI R4 & R5 BY SRI.R.RAJASEKHARAN PILLAI SRI.M.S.NISHAD R1 TO R3 BY GOVERNMENT PLEADER SRI. DILEEP MOHAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: app/- WP(C).No. 3108 of 2007(T) APPENDIX PETITIONER'S EXHIBITS: P1 : COPY OF THE SELECT LIST OF LAST GRADE EMPLOYEES APPOINTED BY THE SELECTION COMMITTEE ON 13.7.1982. P2 : COPY OF THE ORDER DATED 14.7.1984 ISSUED BY THE 4TH RESPONDENT. P3 : COPY OF THE LIST SHOWING THE 13 LAST GRADE EMPLOYEES THUS PROMOTED TO THE POST OF ATTENDER ON 14.7.1984. P4 : COPY OF THE CERTIFICATE ISSUED BY THE 4TH AND 5TH RESPONDENTS. P5 : COPY OF THE G.O.(RT.) 810/91/H.EDN. DT.10.6.1991. P6 : COPY OF THE GOVT. LETTER DATED 25.3.1992. P7 : COPY OF THE SENIORITY LIST OF LAST GRADE STAFF INCLUDING ATTENDERS. P8 : COPY OF THE JUDGMENT DATED 15.12.1998 OF THIS HON'BLE COURT IN O.P. NO.5251/1992. P9 : COPY OF THE ORDER DATED 13.6.1991 PETITIONER WAS PROMOTED TO THE NEXT HIGHER POST. P10 : COPY OF THE OBJECTION DATED 16.12.1996 FILED BY THE PETITIONER. P11 : COPY OF THE REJECTION ORDER DATED 1.1.1997. P12 : COPY OF THE ORDER DATED 29.3.1999 ISSUED BY THE 4TH RESPONDENT. P13 : COPY OF THE ORDER DATED 10.6.1999 IN w.a.494/99. P14 : COPY OF THE ORDER DATED 24.11.1999 IN R.P. 418/99. P15 : COPY OF THE JUDGMENT DATED 7.4.2006 IN OP. 27747/99. P16 : COPY OF THE ORDER DATED 25.7.2006 ISSUED BY THE 4TH RESPONDENT. P17 : COPY OF THE ARGUMENT NOTE SUBMITTED BY THE PETITIONER AT THE TIME OF HEARING ON 1.7.1991. P18 : COPY OF THE REPRESENTATION DATED 1.7.1991 BY THE PETITIONER BEFORE THE 4TH RESPONDENT. RESPONDENTS' EXHIBITS: R7A : COPY OF THE ORDER NO.ESTT.E5/3903/93/COLL.EDN DATED 12.7.1993. R7B : COPY OF THE ORDER NO.ESTT./P5/55786/99/COLL.EDS. DATED 11.1.2007. // TRUE COPY // P.A. TO JUDGE. app/- S. SIRI JAGAN, J ============ WP(C) No.3108/2007 =============== Dated this the 20th day of July 2009. J U D G M E N T =========== The petitioner along with respondents 6 to 8 were selected for appointment as last grade servants in the 4th respondent's college by Ext.P1 rank list. The 6th respondent was rank No.3, 7th respondent was rank No.10, 8th respondent was rank No.19 and petitioner was rank No.24. The petitioner passed attenders test on 28.10.1983, whereas respondents 6 to 8 passed the test on 14.7.1984, 1.5.1986 and 1.6.1988 respectively. On 14.7.1984 petitioner along with 12 others were promoted to the post of attender. By Ext.P5 order, the 1st respondent upheld the petitioner's promotion which was challenged by 8 persons before this court in OP.No.5251/1992. By Ext.P8 judgment this court quashed Ext.P5 order holding that the promotion given to the petitioner in preference to the petitioners therein is bad WP(C) No.3108/2007 2 and declaring that the the petitioner can be promoted as attender only after promoting her qualified list. Petitioners writ appeal against that judgment namely writ appeal No.494/1999 did not succeed. The petitioner moved review petition No.489/1994 in the writ appeal and that review petition was disposed of holding that the division bench does not find any reason to modify the earlier judgment. But the court made an observation that the non-interference will not affect the dispute in respect of qualification of the contesting persons for getting promotions. The petitioner was promoted to the next higher post of LDC on 15.5.1991 and from that date onwards the petitioner is discharging duties in the post of LDC. The seniority list of last grade service was published by the 2nd respondent on 15.11.1996, in which the petitioner was shown as juniors to respondents 6 to 8. Petitioner filed objections to the same. Thereafter petitioner was reverted to the post of attender. Petitioner filed OP. No.27747/1999 before this court challenging her WP(C) No.3108/2007 3 reversion and the allegedly wrong seniority assigned to her and this court by judgment dated 7.4.2006 directed the 4th respondent to ascertain as to how many persons are qualified to continue in that post in the light of the statutory provision requiring acquisition of test qualification and effect notional reversion of unqualified persons. It was further directed to accommodate the petitioner accordingly, notionally with effect from the date on which she is legally entitled to promotion to that post. But by Ext.P16 order passed pursuant to that judgment, it was found that the respondents 6 to 8 are entitled to be promoted ahead of the petitioner. Petitioner is challenging Ext.P16 order. The main contention raised by the petitioner is that the petitioner is entitled to be promoted as attender in preference to the respondents 6 to 8 in view of the fact that the petitioner passed the attender's test, which is one of the essential qualifications for promotion to the post, ahead the respondents 6 to 8, in so far as the petitioner passed the WP(C) No.3108/2007 4 attenders test on 28.7.1983, whereas the respondents 6 to 8 passed the attenders test on 14.7.1984, 1.5.1986 and 1.6.1988 respectively. 2. The post of attender was re-designated by the university as laboratory assistant / library assistant. The qualifications prescribed for the post are as follows:- “ (12) [Laboratory Assistants/ : For appointment by Library Assistant transfer from members of Last Grade Staff and specimen collectors employed in the Private College /Colleges. 1. Pass in Form III (Std VII new) or equivalent. 2. Pass in Attenders Test conducted by the Kerala Public Service Commission. OR (i) Five years regular Service under Private Colleges. (ii) Pass in Attenders Test conducted by the Kerala Public Service Commission] Provided that the last grade staff who possess the qualifications mentioned above excepting pass in Attender's test and who were either in service on 31.3.1971 or who are in regular permanent service will be eligible for appointment in the order of seniority as (Laboratory Assistant / Library Assistant). [Their continuance as (Laboratory Assistant / Library Assistant) shall however be subject to their passing in one of the five consecutive Attender's Tests conducted by the Kerala Public WP(C) No.3108/2007 5 Service Commission for the last grade staff of the Private Colleges]. Such of those who remain unqualified in the Attender's test even after five consecutive chances shall be reverted to their original posts (and those who entered in service prior to 1.9.1972 shall be exempted from passing the Attenders test). Provided further that those who have been appointed as Attenders before 16.1.1975 by direct recruitment by the Educational Agencies concerned for want of qualified hands for promotion from among the last grade servants shall continue as such subject to the condition that they pass the eligibility test which the Kerala Public Service Commission may conduct in accordance with such orders as the Government may issue” 3. The date of occurrence of the vacancies of Laboratory Assistant/Library Assistant is 14.7.1984. On that date the petitioner as well as respondents 6 to 8 were fully qualified to be promoted as laboratory assistant / library assistant (formerly attender), by virtue of the proviso to the rule which stipulate that the last grade staff who are in regular permanent service who have not passed attender's test will be eligible for appointment in the order of seniority as laboratory assistant/ library assistant. But their continuance shall be subject to their passing in one of the consecutive attenders tests conducted by the Kerala WP(C) No.3108/2007 6 Public Service Commission for the last grade staff of the private colleges by the P.S.C. The petitioner herself has, in the writ petition stated that respondents 6 to 8 passed the test on 14.7.1984, 1.5.1986 and 1.6.1988 respectively. Therefore respondents 6 to 8 were eligible to be promoted on the date of occurrence of the vacancies. 3. The learned counsel for the petitioner now contends that it is a mistake and the date of passing attenders test is correctly given in Ext.P16. But there is no dispute before me that respondents 6 to 8 have passed the attender's test within the period prescribed in the proviso. That being so, the petitioner cannot steal a march over respondents 6 to 8 merely on the ground that she passed the attenders test ahead of the respondents 6 to 8. The petitioner raises another contention that in Ext.14 judgment in the review petition before the Division Bench, the inter-se dispute in respect of qualification and preference for getting promotion is left open and therefore she is entitled WP(C) No.3108/2007 7 to raise the contention again. In fact in Ext.P8 judgment itself that contention has been repelled. It has been uphold by the Division Bench also. In any event in view of my above findings that contention does not survive any more. 4. Petitioner raises another contention that petitioner and respondents 6 to 8 having been appointed as last grade staff on the same day and the petitioner being elder in age to respondents 6 to 8, she is senior to respondents 6 to 8. That contention does not have any legs to stand in view of Ext.P1. Ext.P1 is the rank list by which the petitioner and respondents 6 to 8 have been selected for appointment to the post of last grade staff. In that, respondents 6 to 8 are ranked above the petitioner. Therefore the seniority also has to be determined on the basis of the rank in selection. The question of considering seniority on the basis of age does not arise at all in such circumstances. Therefore I have no doubt in my mind that the petitioner cannot claim seniority over respondents 6 to WP(C) No.3108/2007 8 8 on the ground of age also. Once that seniority position is settled then petitioner cannot claim any right for promotion ahead of respondents 6 to 8 on any ground. That being so, the assessment of qualified persons eligible to continue in the post of lower division clerk as directed in Ext.P15 judgment in OP No.27747/1999 has been correctly done by the manager as per Ext.P16 order. In that, the petitioner has been given her appropriate place below the respondents 6 to 8. Hence, there is no merit in the challenge of the petitioner against Ext.P16 order. Accordingly writ petition is dismissed. S. SIRI JAGAN, JUDGE app/-