IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 21ST DECEMBER 2009 / 30TH AGRAHAYANA 1931 WP(C).No. 25925 of 2007(J) ---------------------------------------- PETITIONER(S): ------------------------- 1. SUDHAKARAN K.D., BOAT LASCAR, C.C.NO.4364, SWTD, REGIONAL OFFICE, ERNAKULAM (S/O. DAMODARAN, AGED 48, KOCHITHIAKKAL HOUSE, SOUTH PARUR, ERNAKULAM). 2. SIVADASAN K.K., BOAT LASCAR, C.C.NO.6225, SWTD, REGIONAL OFFICE, ERNAKULAM (S/O. KRISHNANKUTTY, AGED 43, KOCHICHIRAYIL HOUSE, AROOKUTTY P.O.,CHERTHALA). 3. G. RAMESAN, BOAT LASCAR, C.C.NO.6196, SWTD, VAIKKOM STATION (S/O. K.GOVINDAN, AGED 45, KEEZHANJALITHARA, HARIKRIPA, THEKKENADA P.O., VAIKKOM). 4. K.K. SUGUNAN, BOAT LASCAR, C.C.6945, SWTD, VAIKKOM STATION. (S/O. KRISHNAN, AGED 51, NIKARTHIL COLONY, T.V.PURAM P.O., VAIKKOM). BY ADVS.MR.K.S.MADHUSOODANAN MR.K.B.SUJAI KUMAR MR.T.V.JAYAKUMAR NAMBOODIRI MR.THUSHAR NIRMAL SARATHY SMT.K.M.RAMYA RESPONDENT(S): ------------------------- 1. STATE OF KERALA TO BE REP. BY SECRETARY, WATER TRANSPORT DEPARTMENT,GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 2. DIRECTOR, STATE WATER TRANSPORT DEPARTMENT, HEAD OFFICE ALAPPUZHA. W.P.(C) NO.25925/2007 3. JOSEPH THOMAS, LASCAR, C.C.NO.7053, WORKING AS BOAT MASTER,SWTD, STATION OFFICE, PULINKUNNU, ALAPPUZHA. 4. K. RAJU, LASCAR, C.C.7166, WORKING AS BOAT MASTER, SWTD, STATION OFFICE, ALAPPUZHA. 5. D. AJAN, LASCAR, C.C. 6355, WORKING AS BOAT MASTER, SWTD STATION OFFICE, PANAVALLY, CHERTHALA. 6. S. JOHNSON, LASCAR, C.C.NO.8354, PROMOTED AS BOAT MASTER, SWTD, REGIONAL OFFICE, ERNAKULAM. 7. K.G. SWATHIKAN, LASCAR, C.C.NO.8382, WORKING AS BOAT MASTER, SWTD, STATION OFFICE, ALAPPUZHA. 8. T.R. JOY, LASCAR, C.C.NO.8781, PROMOTED AS BOAT MASTER, SWTD, NEDUMUDI, ALAPPUZHA. 9. K.G. ANANDAN, LASCAR, C.C.NO.8369, WORKING AS BOAT MASTER, SWTD, REGIONAL OFFICE, ERNAKULAM. 10. S.P. SAJIMON, LASCAR, C.C.NO.8602, WORKING AS BOAT MASTER, SWTD, REGIONAL OFFICE, EDATHWA, ALAPPUZHA. 11. MANOJ KUMAR, LASCAR, C.C.NO.8812, PROMOTED AS BOAT MASTER, SWTD, PULINKUNNU, ALAPPUZHA. R1 BY GOVT. PLEADER MR.ANTONY MUKKATH R3 TO R11 BY ADVS. SMT.AYSHA YOUSEFF, SMT.MOLLY JACOB. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/12/2009, ALONG WITH WPC NO. 30192 OF 2007 THE COURT ON 21/12/2009 DELIVERED THE FOLLOWING: W.P.(C) NO.25925/2007 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE CERTIFICATE OF COMPETENCY OF BAOT MASTER ISSUED TO IST PETITIONER DTD. 8.4.97. P1(a):- COPY OF THE CERTIFICATE OF COMPETENCY OF BOAT MASTER ISSUED TO 4TH PETITIONER DTD. 4.10.97. P2:- COPY OF THE CIRCULAR NO.E1-15457/01 DTD. 17.8.06 ISSUED BY THE 2ND RESPONDENT. P3:- COPY OF THE CIRCULAR NO.E1-17348/02 DTD. 23.12.02 ISSUED BY THE 2ND RESPONDENT. P4:- COPY OF THE ORDER NO.E1-15471/01 DTD. 912.05 ISSUED BY THE 2ND RESPONDENT. P5:- COPY OF THE ORDER NO.E1-15457/01 DTD. 14.8.07 ISSUED BY THE 2ND RESPONDENT . R9(a):- NO OBJECTION DTD. 9.6.2000 ISSUED BY 2ND RESPONDENT. R9(b):- GO(RT) 225.05/TRAN. DTD. 23.6.05. TRUE COPY P.S. TO JUDGE tss P.N.RAVINDRAN,J. -------------------------------------------------- W.P.(C) Nos. 25925 & 30192 of 2007 ------------------------------------------------- Dated 21st December, 2009 Judgment Common questions arises in these writ petitions. They were therefore heard together and are being disposed of by this common judgment. W.P.(C) No.25925 of 2007 is treated as main case and except otherwise mentioned documents referred to are those produced therein. 2. The petitioners in these writ petitions are presently working as Boat Lascars in the State Water Transport Department. Petitioners 1 and 2 in W.P.(C) No.25925 of 2007 entered service on 5.11.1994, the third petitioner on 7.11.1994 and the fourth petitioner on 2.4.1995, as Boat Lascars. The petitioner in W.P. © No.30192 of 2007 entered service as Boat Lascar on 11.11.1994. Petitioners 1 to 3 in W.P. © No.25925 of 2007 passed the Boat Masters Examination on 8.4.1997 and the fourth petitioner on 4.10.1997. The petitioner in W.P. © No.30192 of 2007 passed the Boat Masters Examination on 8.4.1997. Thereupon, certificates of competency in Form 'H' W.P.(C) Nos.25925 & 30192/2007 2 under rule 118 of the Public Canals and Public Ferries Rules, 1100 (Travancore) were issued to them. 3. Respondents 3 to 11 in these writ petitions are juniors to the petitioners in the category of Boat Lascars. In the gradation list of Boat Lascars as on 1.4.2005, the petitioners in these writ petitions are ranked above respondents 3 to 11. It is stated that a seniority list of Boat Lascars who possess the Boat Masters Licence and are eligible for promotion as Boat Master was published by Ext.P2 circular dated 17.8.2006 issued by the Director, Water Transport Department and that in the seniority list appended to Ext.P2, the petitioners in W.P.(C) No.25925 of 2009 are ranked above respondents 3 to 11. The petitioner in the connected case who was away on leave without allowances for taking up employment abroad during the period from 1.3.2005 to 22.8.2006 claims that he ought to have been included between Sl. Nos.10 and 11 in the list appended to Ext.P2. After the petitioners obtained the Boat Masters Certificate, by Ext.P3 circular dated 23.12.2002, the Director of Water Transport Department directed that Boat Lascars who are in service should obtain a no objection certificate from the Department when they apply to obtain W.P.(C) Nos.25925 & 30192/2007 3 another licence. Thereafter, by Ext.P4 order dated 9.12.2005, the Director of Water Transport Department promoted five Boat Lascars who had before 23.12.2002 obtained the Boat Masters Licence earlier than the petitioners without obtaining a no objection certificate from the Department. The grievance voiced by the petitioners in these writ petitions that ignoring their seniority, respondents 3 to 11 who are their juniors were promoted as Boat Masters as per Ext.P5 order dated 14.8.2007. In these writ petitions, the petitioners challenge the promotion given to respondents 3 to 11. 4. The petitioners contend that as they are seniors, the promotion of respondents 3 to 11 is arbitrary and illegal. They contend that as they had obtained the Boat Masters Licence in the year 1997 before Ext.P3 circular was issued and as Ext.P3 circular has only prospective operation, they are not liable to be superseded on the ground that they had not applied for a no objection certificate before obtaining the Boat Masters Licence. The petitioners rely on Ext.P4 order whereby senior Boat Lascars similarly placed were promoted on 9.12.2005. In these writ petitions, the petitioners challenge Ext.P5 and seek promotion as Boat Masters on the basis of their seniority as W.P.(C) Nos.25925 & 30192/2007 4 reflected in the list appended to Ext.P2. 5. A counter affidavit has been filed on behalf of first respondent. It is contended that in an enquiry conducted by the Vigilance and Anti-Corruption Bureau during the period from 11.6.2002 to 31.12.2005, it was found that many Boat Lascars of the Water Transport Department had obtained other licenses while on duty as Boat Masters in violation of the Rules. It is stated that the Vigilance Department had pointed out that there were lapses on the part of the officials in the Directorate of State Water Transport Department in the matter. It is contended that thereupon, disciplinary action was taken against the erring officials and that they were warned to avoid such lapses in future. It is contended that respondents 3 to 11 were promoted earlier than the petitioners for the reason that they had obtained the Boat Masters Licence in accordance with the directions issued by the Department and the Rules after obtaining a no objection certificate. As regards the petitioners, it is contended that the petitioners did not follow the departmental instructions and Rules while obtaining the Boat Masters Licence. As regards the rank and seniority assigned to the petitioners in the list appended to Ext.P2, it is contended W.P.(C) Nos.25925 & 30192/2007 5 that that list was prepared based solely on the date of entry in service. 6. Respondents 3 to 11 have filed a counter affidavit contending that the petitioners obtained the Boat Masters Licence while in service as Boat Lascars without obtaining a no objection certificate from the Department and that even before Ext.P3 circular was issued, it was the practice in the Department to obtain no objection certificates. Reliance is placed on Ext.R9 (a) no objection certificate issued on 9.6.2000 to Sri.R.Shaji, Driver to enable him to obtain Syrang Licence. Respondents 3 to 11 contend relying on rule 115 of the the Public Canals and Public Ferries Rules, 1100 (Travancore) that a Boat Masters Licence can be issued only if the person to whom it is issued has served one year at sea and one year as Second Master or Chief Helmsman of an inland steam vessel of not less than 30 nominal horse power or has served three years on an inland steam vessel of not less than 30 nominal horse power, the last one year of which shall have been as the Second Master or Chief Helmsman. They contend that the experience of three years on an inland steam vessel can be obtained by a person in service only if he avails leave and that W.P.(C) Nos.25925 & 30192/2007 6 as the petitioners had not availed leave before they obtained the Boat Masters Licence while in service as Boat Lascars, it is evident that the Boat Masters Licence obtained by the petitioners cannot confer any benefit on them. 7. I have considered the submissions made at the Bar by the learned counsel appearing on either side. As per the Special Rules for Kerala State Water Transport Subordinate Service (Operating Wing), Boat Masters are appointed either by direct recruitment or by promotion from among Lascars. The qualifications for promotion are a pass in the SSLC Examination or equivalent qualification and possession of Boat Masters Licence. The qualifications for obtaining Masters Certificate of Competency are prescribed in rule 115 of the Public Canals and Public Ferries Rules, 1100 (Travancore) which reads as follows: “115. Qualification for Master:- The qualifications to be required of a person desirous of obtaining a Master's certificate of competency shall be as follows:- (1) He shall be able to read and write English or Malayalam. (2) He shall be not less than 24 years of age. (3) He shall either (a) have served one year at sea and one year as 2nd master of Chief helmsman of an inland steam vessel of not less than 30 nominal horse power or (b) have served three years on an inland steam W.P.(C) Nos.25925 & 30192/2007 7 vessel of not less than 30 nominal horse power, the last one year of which shall have been as 2nd master or chief helmsman. (4) He shall unless already holds a Board of Trade sea-going certificate as Mate or Master, satisfy the Examining Board of his ability to distinguish colours. (5) He shall pass a satisfactory viva voce examination in the following subjects: (a) The general principles of river and backwater navigation. (b) The management of steam vessels under all contingencies of meeting, passing and overtaking vessels. © Questions regarding the exercise of seamanship in case of difficulty and danger eg: when a vessel has grounded when anchors and chains are carried out, when a vessel has to be got afloat, when the hull is injured or leaking or what steps to take in case of fire or other accident to the vessel. (d) The provisions of the public canals and public ferries act and the rules thereunder.” 8. From a reading of sub-rule (3) of rule 115, it is evident that a person aspiring for a Masters Certificate of Competency has to serve for three years in an inland steam vessel of not less than 30 nominal horse power, the last one year of which shall have been as Second Master or Chief Helmsman. The petitioners in these writ petitions obtained the Boat Masters W.P.(C) Nos.25925 & 30192/2007 8 Licence while they were in service as Boat Lascars in the year 1997 after the test held in March, 1997. Petitioners 1 to 3 in W.P.(C) No.25925 of 2007 and the petitioner in W.P.(C) No. 30192 of 2007 entered service in November, 1994. The fourth petitioner in W.P.. © No. 25925 of 2007 entered service in April, 1995. When they obtained the Boat Masters Licence in the year 1997 they did not have three years service in the Department. They did not also take leave and serve for three years in an inland steam vessel of not less than 30 nominal horse power as stipulated in sub-rule (3) of rule 115 of the the Travancore Public Canals and Public Ferries Rules, 1100. Since the petitioners had not availed leave while they were working as Boat Masters in the State Water Transport Department, it cannot be said that they had served for the requisite period of three years before Boat Masters Certificate was issued to them. As Government servants, the petitioners could not have served on an inland steam vessel for the requisite period without availing leave. The Rules issued under the Public Canals and Public Ferries Act, 1096 prescribe the terms and conditions subject to which a Masters Certificate of Competency can be issued. The Rules are framed in public interest and intended to W.P.(C) Nos.25925 & 30192/2007 9 equip persons who seek appointment as Boat Masters with the necessary experience and expertise. The petitioners who did not satisfy the stipulations under the Rules by serving for a minimum period of three years cannot, in my opinion, be heard to contend that though they were on duty as Boat Lascars in the Water Transport Department, they had served in an inland steam vessel for the requisite period. The petitioners contend that Ext.P3 circular was issued only on 23.12.2002 and therefore, it was not necessary for them to obtain a no objection certificate for the purpose of serving in an inland steam vessel for the requisite period of three years. In view of Ext.R9 (a), it cannot be said that there was no practice in the Department of taking leave and getting the consent of the Department for obtaining another licence. The petitioners admittedly did not obtain a no objection certificate or take leave. Therefore, even though Boat Masters Certificates have been issued to theim, this Court will not be justified in holding that while the petitioners were service in the Department as Boat Lascars, they had also served as Second Master or Chief Helmsman of an inland steam vessel or that they had served for three years on an inland steam vessel of not less than 30 W.P.(C) Nos.25925 & 30192/2007 10 nominal horse power the last one year of which was as Second Master or Chief Helmsman. This Court cannot in exercise of the jurisdiction under Article 226 of the Constitution of India issue a direction which runs counter to rule 115 of the Public Canals and Public Ferries Rules, 1100 (Travancore) and direct the respondents to promote the petitioners based on the Boat Masters Certificates obtained by them otherwise than in accordance with the Rules. I accordingly hold that there is no merit in these writ petitions. The writ petitions fail and are dismissed. No costs. P.N.RAVINDRAN Judge vaa