IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 27TH NOVEMBER 2008 / 6TH AGRAHAYANA 1930 WP(C).No. 30288 of 2008(E) -------------------------- PETITIONERS: --------------- 1. T.Y.SHEYK PAREED, LASCAR, GOVERNMENT GUEST HOUSE, MALAMPUZHA, PALAKKAD. 2. P.PRABHAKARAN, LASCAR, GOVERNMENT GUEST HOUSE, SULTHAN BATHERY, WAYANAD. BY ADV. SRI.M.C.JOHN RESPONDENTS: --------------- 1. STATE OF KERALA REPRESENTED BY PRINCIPAL SECRETARY (TOURSIM) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR, DEPARTMENT OF TOURISM, PARK VIEW, THIRUVANANTHAPURAM. BY GOVT. PLEADER SMT.ANU SIVARAMA THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.N.RAVINDRAN, J ----------------------------- W.P.(C) NO:30288 of 2008 ----------------------------- Dated this 27th day of November, 2008 JUDGMENT Heard Sri.M.C.John, the learned counsel appearing for the petitioner and Smt.Anu Sivaraman, the learned Government Pleader appearing for the respondents. 2. The petitioners are Lascars working in the Tourism Department. They were appointed under the Dying-in-harness Scheme on 21-4-1994 and 19-12-1995 respectively. The post of Lascar is a last grade post. The petitioners have not passed the SSLC Examination. In Ext.P1 provisional seniority list of Watcher/Lascar in the Tourism Department as on 31-12-1996 the petitioners are serial Nos.40 and 42 respectively. It is submitted that out of the 42 persons included in Ext.P1 provisional seniority list, all the persons ranked above the petitioners have either retired from service or been promoted to higher post of Room Attendant. Serial No.41, who is junior to the first petitioner but senior to the second petitioner has retired form service. 3. Formerly a pass in the SSLC Examination was not insisted upon for appointment as Room Attendant. Later by Ext.P3 Government order dated 27-6-2005 the post of Hospitality Assistant was created by merging the categories of Watcher/Room wpc:30288 of 2008 2 Attendant/Bunglow Matey. As per Ext.P3, 50% for the posts of Hospitality Assistants are to be filled up by transferring last grade employees working in the Tourism Department based on their eligibility. The remaining 50% of the posts is to be filled up by direct recruitment. It is also stipulated that if qualified hands are not available for appointment by transfer, the said vacancies shall also be filled up by direct recruitment. 4. The qualifications prescribed in Ext.P3 for appointment to the post of Hospitality Assistant is (1) A pass in the SSLC Examination or its equivalent qualification. (2) Craft Certificate in Food and Bewerage Service from Government Food Craft Institute or any other qualification recognised by the Government as equivalent thereto. It is stipulated that those who were in service as on 27-6-2005 as Hospitality Assistant are exempted from possessing the said qualifications. Claiming promotion as Room Attendant which post has now merged in the category of Hospitality Assistant, petitioners had earlier filed W.P.(C) No.27072 of 2006 in this Court. By Ext.P2 judgment delivered on 3-11-2006, this Court directed the Director, Department of Tourism to consider the request made by the petitioners in their representation and pass final orders wpc:30288 of 2008 3 thereon. Pursuant to the said direction the Director of Tourism Department, considered the petitioners’ request and informed them in Ext.P4 letter dated 6-8-2008 that as the petitioners have not passed the SSLC Examination, they are not eligible to be promoted to the category of Hospitality Assistant. In this writ petition the petitioners challenge Exts.P3 and P4 and seek a writ in the nature of mandamus commanding the respondents to promote them to the category of Hospitality Assistant based on their length of service. 5. It is evident from Ext.P3 that a pass in the SSLC Examination is necessary for appointment by transfer or posting by direct recruitment as Hospitality Assistant in the Tourism Department. The petitioners admittedly do not possess the said qualification. They are therefore not eligible to be promoted to the category of Hospitality Assistant with effect from 27-6-2005 the date on which Ext.P3 Government order was issued. However, the fact remains that all the persons senior to the petitioners in service as on 31-12-1996 have been promoted to the category of Hospitality Assistant (formerly Room Attendant) based on the then prevailing rules which did not prescribe a pass in the SSLC Examination as one among the qualifications. wpc:30288 of 2008 4 According to the petitioners, all others except them have been thus promoted. The petitioners submit that in these circumstances, the Government ought to have considered their request in the light of Rule 39 of Part II of the Kerala State and Subordinate Services Rules and that without invoking the said provision, their request has been declined, without adverting to the significant fact that they alone have been denied promotion. 6. I have considered the submissions made at the Bar by the learned counsel appearing on either side. Ext.P1 seniority list discloses that the petitioners were the junior most Room Attendants in the Tourism Department. Their seniors have either retired from service or have been promoted as Hospitality Assistant (Formerly Room Attendant) based on their length of service though they did not possess a pass in the SSLC Examination. From the materials on record it is evident that the petitioners alone did not get promotion before Ext.P3 was passed. As on the date of Ext.P3 they had about 10 years of service as Lascars. In the light of these facts, I am of the considered opinion that the request made by the petitioners, requires to be examined in the light of Rule 39 of Part II of the Kerala State and Subordinate Services Rules. wpc:30288 of 2008 5 In the result I dispose of the writ petition with a direction to the petitioners to file an appropriate representation before the Secretary to Government Tourism Department, setting out their grievances and seeking promotion as Hospitality Assistant in relaxation of the qualifications prescribed in Ext.P3 and requesting the Government to invoke the provision under Rule 39 of Part II of the Kerala State and Subordinate Services Rules. Representations as directed shall be filed within two months from today. The Secretary, Tourism Department shall within a period of three months thereafter, consider the same and take a decision thereon after affording the petitioners an opportunity of being heard. P.N.RAVINDRAN, JUDGE bps