IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 20TH MARCH 2009 / 29TH PHALGUNA 1930 WP(C).No. 2128 of 2009(C) ------------------------- PETITIONERS: --------------- 1. GEENA GEORGE, VALIYAPARAMBIL HOUSE, ASAMANNUR P.O., VIA.PERUMBAVOOR - WORKING AS TRADESMAN, DEPARTMENT OF ELECTRICAL AND ELECTRONICS, MAR ATHANASIUS COLLEGE OF ENGINEERING, KOTHAMANGALAM. 2. NAVEEN ELDHOSE, PULPARAMBIL HOUSE, KEERAMPARA P.O., KOTHAMANGALAM- WORKING AS TRADESMAN,DEPARTMENT OF ELECTRICAL AND ELECTRONICS MAR ATHANASIUS COLLEGE OF ENGINEERING, KOTHAMANGALAM. 3. ELDHOSE JOSE, PANTHAPILLIL HOUSE, CHELAD P.O, KOTHAMANGALAM-WORKING AS TRADESMAN, DEPARTMENT OF ELECTRICAL AND ELECTRONICS, MAR ATHANASIUS COLLEGE OF ENGINEERING, KOTHAMANGALAM. BY ADV. DR.GEORGE ABRAHAM RESPONDENTS: --------------- 1. THE SECRETARY, MAR ATHANASIUS COLLEGE ASSOCIATION,M.A.COLLEGE P.O.,KOTHAMANGALAM 686666. 2. THE JOINT DIRECTOR, REGIONAL DIRECTORATE OF TECHNICAL EDUCATION, KOTHAMANGALAM. 3. THE DIRECTOR, DIRECTORATE OF TECHNICAL EDUCATION, THIRUVANANTHAPURAM. 4. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, THIRUVANANTHAPURAM. BY SR.GOVERNMENT PLEADER SMT.T.B.REMANI THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20/03/2009, ALONG WITH WPC NO. 4723 OF 2007 WPC NO. 19573 OF 2008. THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.N.RAVINDRAN, J. ----------------------------- W.P.(C) No. 4723/ 2007-K, 19573 of 2008 -E & 2128/2009-C, ------------------------------ Dated this the 20th day of March, 2009. J U D G M E N T Heard Sri.K.M.Kurian, the learned counsel appearing for the petitioners in W.P(C) No. 4723 of 2007, Sri.K.Jaju Babu, the learned counsel appearing for the first respondent therein, who is also the petitioner in W.P(C) No. 19573 of 2008, Sri.George Jacob, the learned counsel appearing for respondents 2 and 3, Smt.T.B.Remani, the learned Government Pleader appearing for respondents 4 and 5 and Sri.T.A.Shaji, the learned standing counsel appearing for the sixth respondent. I have also heard Dr.George Abraham, the learned counsel appearing for the petitioner in W.P(C) No.2128 of 2009. 2. The main question that arises in these writ petitions is whether the seniority of non teaching staff in private aided Engineering Colleges is to be reckoned trade wise or department wise. For the sake of convenience, the parties are referred to as they are arrayed in W.P.(C) No.4723 of 2007. The petitioners in W.P(C) No.4723 of 2007 are working as Tradesman in the Electrical and Electronics Engineering Department of M.A.College of Engineering, Kothamangalam. The first respondent therein, who is the petitioner in W.P(C)No.19573 of 2008 entered service as Tradesman in the Electrical and Electronics Department of the said W.P(C) No. 4723/ 2007-K , 19573 of 2008 -E & 2128/2009-C 2 college in the year 1997. His promotion as Trade Instructor Gr.II is under challenge in W.P.(C) No.4723 of 2007. The first respondent in W.P.(C) No.4723 of 2007 has passed the National Trade Certificate in the trade of Mechanic Radio & Television. 3. The first respondent in W.P.(C) No.4723 of 2007 is admittedly senior to the petitioners in the other writ petitions. When the first respondent in W.P.(C) No.4723 of 2007 was appointed as Tradesman in the Electrical and Electronics Engineering Department there was no Tradesman in Electronics in the Electrical and Electronics Engineering Department of M.A College of Engineering, Kothamangalam. Therefore, applications were invited for filling up the post of Tradesman in Electronics trade. The first respondent who was qualified to be appointed as Tradesman in Electronics was selected and appointed. The management of the college requested the Director of Collegiate Education in Ext.R1(c) letter dated 24.10.1997 to approve the appointment of the first respondent in the retirement vacancy of Tradesman that had arisen in the Electrical and Electronics Engineering Department. In view of the said request, the first respondent’s appointment as Tradesman in the Electrical & Electronics Engineering Department was approved by the Director of Technical Education. After the petitioners in W.P.(C) No.4723 of 2007 entered service, by Ext.P7 W.P(C) No. 4723/ 2007-K , 19573 of 2008 -E & 2128/2009-C 3 order dated 21.12.2006 the first respondent in W.P.(C) No.4723 of 2007 was promoted as Trade Instructor Gr.II in the vacancy that arose on the promotion of the incumbent as Trade Instructor Gr.I. The petitioners in W.P.(C) No.4723 of 2007 challenge the first respondent’s promotion on the ground that though he is the senior most among Tradesman, as the vacancy of Trade Instructor Gr.II has arisen on account of the promotion of a Trade Instructor Gr.II in the Electrical trade, only a Tradesman in the Electrical trade can be promoted to that vacancy. In other words the petitioners contend that as and when a vacancy in the higher post arises, it has to be filled up by promoting a person in the lower category belonging to the same trade as the incumbent who was holding the higher post. The petitioners rely on Ext.P8 judgment of the Division Bench of this Court in support of this contention. 4. The pleadings disclose that in view of W.P(C) No.4723 of 2007, the Joint Director of Collegiate Education declined to approve the promotion of the first respondent as Trade Instructor Gr.II. The first respondent has thereupon filed W.P(C) No.19573 of 2008 challenging the said decision. After W.P(C) No.4723 of 2008 was filed, the petitioners therein were promoted to the category of Trade Instructor Gr.II and the management thereupon appointed the petitioners in W.P(C) No.2128 of 2009 to the category of Tradesman. They have filed W.P(C) No.2128 of W.P(C) No. 4723/ 2007-K , 19573 of 2008 -E & 2128/2009-C 4 2009, being aggrieved by the non approval of their appointments. 5. The main question that arises in these cases is whether the action of the management in having promoted the first respondent in W.P.(C) No.4723 of 2007 to the post of Trade Instructor Gr.II in the Department of Electrical and Electronics Engineering is liable to be set aside as contended by the petitioners in W.P.(C) No.4723 of 2007 or whether it is sustainable in the light of the Government orders governing the field. The learned counsel for the petitioners in W.P.(C) No.4723 of 2007 contends relying on Ext.P8 judgment of this Court that trade wise seniority has to be followed and as the vacancy of Trade Instructor Gr.II arose when a Trade Instructor Gr.I in Electrical trade was promoted, notwithstanding the departmental seniority, the first respondent could not have been promoted as he did not belong to the Electrical trade. In Ext.P8 judgment, the Division Bench of this Court held that the trade wise seniority followed in the matter of promotion of Tradesman to various higher posts cannot be changed by the Director of Technical Education. This Court directed the Government to take a final decision in the matter and also ordered that till then, trade wise seniority shall be followed in the matter of making promotions. Ext.P8 judgment was upheld by the Apex Court. The Government thereafter considered the matter and issued Ext.R1(d) order dated 30.11.2000. The operative portion of Ext.P8 W.P(C) No. 4723/ 2007-K , 19573 of 2008 -E & 2128/2009-C 5 judgment reads as follows: “In the above circumstances, we direct the Government to examine the entire issue and to pass orders fixing the staff pattern in private Engineering Colleges and Polytechnics as directed by the learned Single Judge. This exercise must be done as expeditiously as possible, at any rate, within six months from the date of receipt of a copy of this judgment. Till such an order is issued, promotion to the cadre of Skilled Assistant Grade II should be on the basis of the trade-wise seniority of Attenders.” 6. The learned counsel for the petitioners in W.P.(C) No.4723 of 2007 contends that Ext.R1(d) order does not dispense with trade wise seniority and therefore the direction in Ext.P8 continues to operate. The learned counsel appearing for the respondents and the petitioners in the connected writ petitions contended relying on Ext.R1(e) judgment in O.P.No.21063 of 2000 that with Ext.R1(d) order, the system of following trade wise seniority came to an end and thereafter it is department wise seniority that has to be and is being followed. 7. I have considered the submissions made at the Bar by the learned counsel appearing on either side. It is not in dispute that till Ext.R1(d) order was passed on 30.11.2000, private aided colleges were bound to follow trade wise seniority even within the department, while effecting promotions of Tradesman. As directed by this Court in Ext.P8 judgment that was upheld by the Apex Court, the Government considered the question in all its perspective and ordered that in all private aided W.P(C) No. 4723/ 2007-K , 19573 of 2008 -E & 2128/2009-C 6 Engineering Colleges there shall be one Instructor Gr.II, 4 Trade Instructors and 4 Tradesman. In other words, for every 4 Tradesman there has to be 4 Trade Instructors and also one Instructor Gr.II. In other words, with the issue of Ext.R1(d), department wise seniority has to be taken into account, as held by the learned Single Judge in Ext.R1(e) judgment. By Ext.R1(d) order, the Government have ordered that the staff pattern shall be in the ratio of 1:4:4 among Instructor Gr.II, Trade Instructor and Tradesman. A learned Single Judge of this Court has in Ext.R1(e) judgment in O.P.No.21063 of 2000 held that Ext.R1(d) order would clearly show that trade wise seniority and promotion have been given a go by and that in view of the ratio fixed in the said Government order between Instructor Gr.II, Trade Instructor and Tradesman, the intention is clear that trade wise promotions are not to be effected thereafter. I respectfully agree with the reasoning of the learned Single Judge in Ext.R1(e) judgment. In my opinion in view of the stipulations in Ext.R1(d) Government order and the decision of this Court in O.P.No.21063 of 2000 [Ext.R1(e)], the petitioners in W.P.(C) No.4723 of 2007 cannot contend that notwithstanding Ext.R1(d) order passed by the Government and its terms, trade wise seniority has to be followed while effecting promotions even within the department. The petitioners have also not challenged Ext.R1(d). If the petitioners' contention is accepted, W.P(C) No. 4723/ 2007-K , 19573 of 2008 -E & 2128/2009-C 7 when a Tradesman in the Electrical trade is promoted as Trade Instructor Gr.II and he retires, the vacancy can be filled up only by promoting another Tradesman in the same trade, resulting in denial of promotion to Tradesman in the Electronics trade though he is in the same department. Further the management has produced materials to show that in the Electrical and Electronics Engineering Department, the Electronics content is 40% and therefore the Department of Electrical and Electronics Engineering cannot be run without a Tradesman in the trade of Electronics. A Tradesman in the trade of Electronics can aspire to get appointment and promotion only in the Electronics department. On the other hand, a Tradesman in Electrical trade can work in the Electrical Engineering Department also. Therefore it would be grossly unjust and inequitable to hold even after Ext.R1(d) order was passed, that Tradesman in the trade of Electronics cannot aspire to be promoted to the post of Trade Instructor Gr.II. I accordingly hold that the challenge to Ext.P7 is without merit. 8. As noticed earlier the first respondent in W.P.(C) No.4723 of 2007 has filed W.P(C) No. 19573 of 2008 aggrieved by Ext.P6 order produced therein declining to approve his promotion as Trade Instructor Gr.II. The two grounds raised are pendency of W.P(C) No.4723 of 2007 and trade wise seniority raised therein. As I have held that W.P(C) W.P(C) No. 4723/ 2007-K , 19573 of 2008 -E & 2128/2009-C 8 No.4723 of 2007 is liable to be dismissed, Ext.P6 cannot be sustained. The grievance of the petitioners in W.P(C) No.2128 of 2009 is that though they were appointed as Tradesman in the vacancies that arose on the promotion of the petitioners in the other two writ petitions, their appointments have not yet been approved because of the pendency of the said writ petitions. Their grievance will stand redressed with the disposal of the other two writ petitions. For the reasons stated above, I hold that there is no merit in W.P(C) No.4723 of 2007. The writ petition fails and is accordingly dismissed. W.P(C) No.19573 of 2008 is allowed, Ext.P6 is quashed and the Director of Technical Education is directed to pass orders approving the petitioner's promotion as Trade Instructor Gr.II within one month from the date of receipt of a certified copy of this judgment. W.P.(C) No.2128 of 2009 is disposed of with a direction to the Principal, M.A.College of Engineering, Kothamangalam to forward the proposal to approve the appointments of the petitioners therein to the Director of Technical Education expeditiously. The Director of Technical Education shall pass orders thereon within 2 months from the date on which, the proposal is received from the Principal. Sd/- P.N.RAVINDRAN ab JUDGE