IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 22ND OCTOBER 2008 / 30TH ASWINA 1930 WP(C).No. 2408 of 2006(J) -------------------------------------- PETITIONER(S): ------------------------ T.R. MADHUSUDANAN NAIR, ASSISTANT LECTURER, DEPARTMENT OF CIVIL ENGINEERING, N.S.S. POLYTECHNIC, PANDALAM RESIDING AT CHAITRAM, KONNAMANKARA, ADOOR. BY ADV. SRI.N.SUGATHAN SRI.G.GOPAKUMAR (CHERTHALA) SMT.VARSHA BHASKAR SRI.RASHEED C.NOORANAD RESPONDENT(S): ---------------------------- 1. STATE OF KERALA REP. BY THE COMMISSIONER AND THE SECRETARY TO THE HIGHER EDUCATION DEPARTMENT, GOVT. OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR OF TECHNICAL EDUCATION, OFFICE OF THE DIRECTOR OF TECHNICAL EDUCATION, THIRUVANANTHAPURAM. 3. THE CHAIRMAN, N.S.S. POLYTECHNIC, GOVERNING BODY, N.S.S COLLEGES, CENTRAL COMMITTEE, N.S.S. HEAD OFFICE, PERUNNAI, CHANGANASSERY. 4. THE PRINCIPAL, N.S.S. POLYTECHNIC, MANNAM NAGAR P.O., PANDALAM. 5. M. KISHORE KUMAR, ASSISTANT LECTURER, DEPARTMENT OF CIVIL ENGINEERING N.S.S. POLYTECHNIC, PANDALAM. Kss ..2/- ....2..... WPC.NO.2408/2006 J 6. USHA. K. NAIR, ASSISTANT LECTURER, DEPARTMENT OF CIVIL ENGINEERING, N.S.S. POLYTECHNIC, PANDALAM. *ADDL.R7 IS IMPLEADED: R7. LEKHA K.R., LECTURER, DEPARTMENT OF CIVIL ENGINEERING, N.S.S.POLYTECHNIC, PANDALAM. (*ADDL.R7 IS IMPLEADED AS PER ORDER DTD.19/07/2007 IN I.A.NO.9318/2007) GOVERNMENT PLEADER SMT. T.B.REMANI FOR R1,2 ADV. SRI.P.G.PARAMESWARA PANICKER SRI.P.VINODKUMAR FOR ADDL.R7 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.2408/2006 J APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE G.O.(RP) NO.926/04/H.EDN. DTD. 12/07/04. EXT.P2: COPY OF THE JUDGMENT IN O.P.NO.3655/99 DTD. 27/05/05. EXT.P3: COPY OF THE LETTER DTD. 16/11/05. EXT.P4: COPY OF THE ORDER PASSED BY THE 2ND RESPONDENT DTD. 14/12/05. EXT.P5: COPY OF THE REPRESENTATION DTD. 26/07/04. EXT.P6: COPY OF JUDGMENT DTD. 6/03/2005 IN O.P.NO.34441/2000. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss ANTONY DOMINIC, J ----------------------------------------------------------- W.P.(C).No.2408/2006 ----------------------------------------------------------- Dated this the 22nd day of October, 2008 JUDGMENT Petitioner is a Diploma Holder. On 23.8.1974 he was appointed as a Demonstrator in the N.S.S Polytechnic, Pandalam. He was promoted as Assistant Lecturer on 7.6.1993. On that date, respondents 4 and 5, who are degree holders were appointed as Assistant Lecturers. 2. In 1989 Kerala Technical Education Service Rules (here-in-after referred to as the Special Rules) were amended with effect from 23.9.1984. Method of appointment for the post of Lecturer, specified in the Special Rules, is as follows; 1. By transfer from the Kerala Technical Education subordinate Service from the category of Instructor Grade I in Engineering Colleges/Workshop Superintendent in Polytechnics/Superintendents of Technical High Schools; WP(c).No.2408/2006 2 or 2. In the absence of qualified candidates under item 1 above, by transfer from the Kerala Technical Education Subordinate Service from the category of Assistant Lecturers/Instructor in Engineering/Draftsman Grade-I/Foreman belonging to the branch of Engineering/Technology in which vacancy exists. 3. In the absence of candidates under items 1 and 2 above, by transfer from any other service in the Technical Education Department. 4. In the absence of qualified candidates under items 1,2 and 3, by direct recruitment. 3. The qualification prescribed to the post is degree in the appropriate branch of Engineering with not less than 60% marks in the qualifying examination and in the case of promotion to the feeder category 60% marks will not be insisted upon. However, the amended rule carried a note which reads as under. Nothing contained in the Kerala Technical Education Service (Amendment)Rules, 1989 shall apply to those in WP(c).No.2408/2006 3 the feeder category to the above post who are already in service before the date of commencement of the said rules. But the personnel promoted, if any during the interim period (ie. from 23.9.1984 to the date of issue of this order) shall not be adversely affected". 4. The aforesaid note came up for interpretation by a Division Bench of this court in Radhakrishnan V. Sunoj (2000(1)KLT 774). The Division Bench interpreted the rule as conferring the benefit of exemption only to those employees who were in the feeder category and were already in service before the commencement of the amended rules. Petitioner contends that since he was a Demonstrator when the amended Special Rules were implemented, irrespective of his subsequent promotion as Asst. Lecturer, he is entitled to be promoted for the post of Lecture, going the benefit of the note referred to above. WP(c).No.2408/2006 4 5. The background for raising such a claim is that on 15.3.1999 one vacancy of Lecturer arose in the Civil Engineering Department of the 3rd respondent. To that vacancy, a Diploma Holder, one Mr. Balachandran Nair who was promoted as an Assistant Lecturer subsequent to 1984 was appointed by order dated 7.9.1999 giving him the benefit of the note referred to above. That was not approved. Thereupon, the 5th respondent, a degree holder, was appointed as Lecturer with effect from 15.3.1999. Subsequently, on his promotion as Principal, the 6th respondent, yet another degree holder, was appointed as Lecturer from the category of Assistant Lecturer. Though there is a dispute about the date of appointment of the 6th respondent as Lecturer, that does not appear to be material in so far as the issue raised in this writ petition is concerned. 6. The case of the petitioner is that, though he was promoted as a Lecturer with effect from 7.6.1993, since the WP(c).No.2408/2006 5 post of Demonstrator falls in the feeder category to the post of Lecturer and as he was a Demonstrator as on 23.9.84, he is entitled to the benefit of the note attached to the rule. According to him, his subsequent promotion as Assistant Lecturer is incidental for determining his eligibility for the benefit of the note. 7. This contention is sought to be contradicted by the learned Government Pleader. According to the Government Pleader the note postulates continuance of the claimant in the feeder category post of Demonstrator. It is contended that since the petitioner was promoted as Assistant Lecturer with effect from 7.6.1993, he cannot claim the protection of the note and claim promotion on the basis of the post of Demonstrator which he held in 1984. It is stated that when the vacancies to which respondents 5 and 6 were promoted arose, the petitioner was an Assistant Lecturer and as he was not qualified in terms of the amended rules he was not entitled to be promoted. WP(c).No.2408/2006 6 8. I have considered the submissions made by both sides. Admittedly, the Rule as understood by the Division Bench in Radhakrishnan's case, provides that the claimant should be in the feeder category and must already be in service before the commencement of the rules. The rule was implemented from 23.9.1984. As on 23.9.1984, admittedly in terms of Ext.P6, the judgment in O.P.No.3441/2000, the post of Demonstrator is a feeder category post and the petitioner was in the feeder category. Had he continued as Demonstrator he would have been entitled to the benefit of protection extended by the said note. 9. However, on 7.6.1993,he was promoted as Assistant Lecturer. On his promotion, once he has ceased to be in the feeder category post of Demonstrator, in my view the petitioner has ceased to be eligible for the benefit of the note referred above. His eligibility has to be reckoned only as an Assistant Lecturer. Therefore, at the time when the WP(c).No.2408/2006 7 vacancies were filled up appointing respondents 5 and 6 unless the petitioner satisfied the conditions in the amended rule, petitioner could not be appointed as Lecturer. Admittedly the petitioner did not have a degree as provided in the amended rule. If that be so, the petitioner's claim for appointment as Lecturer is without any merit. This precisely is the view taken by the Government also in Ext.P1, the Government Order issued in implementation of Ext.P6 judgment. Therefore, I am not satisfied that the petitioner has made out a case for interference. Writ Petition fails and is dismissed. ANTONY DOMINIC JUDGE vi. WP(c).No.2408/2006 8 ANTONY DOMINIC JUDGE vi. WP(c).No.2408/2006 9