IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 27TH OCTOBER 2009 / 5TH KARTHIKA 1931 W. A. No. 893 of 2008 ----------------------------------- AGAINST THE JUDGEMENT IN WPC.15596/2005 Dated 25/03/2008 .................... APPELLANT(S): 4TH RESPONDENT -------------------- D. VARGHESE, KIZHAKKETHERIVILLA VEEDU NEYYATTINKARA, THIRUVANANTHAPURAM. BY ADVS. SRI.D.SOMASUNDARAM & SRI.D.SREEKUMAR RESPONDENT(S): PETITIONER AND RESPONDENTS NO.1 TO 3 ------------------------- 1. T.M. JOHN ROBERT, LOWER DIVISION CLERK, CHRISTIAN COLLEGE, KATTAKADA, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF COLLEGATE EDUCATION, THIRUVANANTHAPURAM. 3. THE MANAGER, CHRISTIAN COLLEGE, KATTAKADA, KATTAKADA P.O., THIRUVANANTHAPURAM 695572. 4. THE PRINCIPAL, CHRISTIAN COLLEGE, KATTAKADA, KATTAKADA P.O., THIRUVANANTHAPURAM. R1 BY ADVS. SRI.K.JAJU BABU, SMT.M.U.VIJAYALAKSHMI & SRI.BRIJESH MOHAN. R2 BY GOVT. PLEADER SMT. R. BINDU. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 27/10/2009, ALONG WITH WA NO. 1442 OF 2008 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & P. BHAVADASAN, JJ. ------------------------------ W.A.Nos.893 and 1442 of 2008 ------------------------------ Dated this, the 27th day of October, 2009 JUDGMENT Balakrishnan Nair, J. W.A.No.1442 of 2008 is filed against the judgment of the learned Single Judge in O.P.No.9822 of 2003 dated 25.3.2008. The said Original Petition was disposed of along with W.P.(C) No.15596 of 2005, filed by the first respondent in W.A.No.893 of 2008. W.A.No.893 of 2008 is filed by the fourth respondent in W.P.(C) No.15596 of 2005, who is none other than the petitioner in O.P.No.9822 of 2003 and the appellant in W.A.No.1442 of 2008. 2. For the purpose of referring to the exhibits, we will refer to O.P.No.9822 of 2003. The appellant was a peon working in the second respondent's College. Sri.T.M.John Robert, the petitioner in W.P.(C) No.15596 of 2005 was working as a Gardner in the said college. It is common ground that, Sri.John Robert commenced service earlier and therefore was senior to the appellant, if the total length of service in the college was taken WA Nos.893 & 1442/08 - 2 - into account. A vacancy of Lower Division Clerk (for short, 'LDC') arose in the college on 1.12.2000. Sri.John Robert staked his claim for that post, but ignoring his claim, the appellant herein was promoted on 28.3.2000. Later, he was reverted and in his place Sri.John Robert was promoted on 1.12.2000. The dispute between them for promotion to the post of L.D.C. was carried before the statutory authorities and the Director of Collegiate Education finally held in favour of the appellant as per Order No.E1-43081/02/Coll.Edn. dated 2.5.2005, a copy of which is produced as Ext.P8 in W.P.(C) No.15596 of 2005. Sri.John Robert challenged that order in the said Writ Petition and sought consequential reliefs. The appellant herein filed O.P.No.9822 of 2003 claiming posting as L.D.C. and to allow him to function as L.D.Clerk. Both the writ petitions were heard and disposed of by a common judgment dated 25.3.2008. W.P.(C) No.15596 of 2005 was allowed and the writ petitioner therein Sri.John Robert was held to be entitled to get promoted as L.D.C. The O.P.No.9822 of 2003 filed by the appellant was dismissed. Feeling aggrieved by the said common judgment, the appellant WA Nos.893 & 1442/08 - 3 - has preferred these two appeals. 2. According to the appellant, the first respondent in W.A.No.893 of 2008 is a gardner and therefore, he is not a member of the last grade staff and so, ineligible to be considered for the post of L.D.C. According to him, the Statute 41 of Chapter 3 of Kerala University (Conditions of Service of Teachers and Members of Non-Teaching Staff) First Statutes, 1979, (for short, 'the Statute') enumerate various posts sanctioned in private colleges. The said Statute does not mention about Gardner. So, according to the appellant, the first respondent Sri.John Robert could not have been promoted as L.D. Clerk. The above said respondent, on the other hand, pointed out that item No.13 in Statute 41 of the aforementioned statute is Last Grade Staff. But, which are the last grade staff are not specified. So, the learned Single Judge referred to Special Rules for Last Grade Service and found that Gardner is a post included in the said service under the Government. Therefore, the Gardner in a private college is also a Last Grade Staff. If that be so, by virtue of method of appointment provided under Category 5 under the WA Nos.893 & 1442/08 - 4 - aforementioned statute 41, he is eligible for promotion, it was held. 3. The relevant portion of the Statute 41 reads as follows: Posts Qualifications 5 Lower Division Clerk/ Lower Division Store Keeper/ Lower Division Accountant S.S.L.C.or equivalent qualification and with a pass in the Manual of Office Procedure for earning the third increment. The non-clerical staff like Library/Laboratory Assistants, Gasmen/Specimen Collectors, Last Grade Staff who have 5 years service with S.S.L.C. and have passed the Clerical Test conducted by the Public Service Commission may be promoted on the basis of common seniority in Lower cadre. Herbarium Keeper/Taxidermist who have 3 years service with S.S.L.C. and have passed the Clerical Test conducted by the Public Service Commission may be promoted on the basis of common seniority in the lower cadre. Lower Division Typists with S.S.L.C. and have passed Clerical Test conducted by the Public Service Commission may be promoted on the basis of common seniority in the lower cadre. Qualified hands if available, shall be given preference before recruiting persons from outside. Provided that the Lower Division Typist, Herbarium Keeper/Taxidermist, Library/Laboratory Assistants, Gasmen, Specimen Collectors, Attenders and Last Grade Staff who are either in regular permanent service or have put in 3 years of service as on 31.3.1971 are eligible for appointment in the order of their seniority as L.D.Clerks. Their continuance as Lower Division Clerks shall, however, be subject to their passing in one of the four consecutive annual competitive tests conducted by the Kerala Public Service Commission for the low-paid employees for appointment as Clerks etc, after the commencement of the Statutes. Such of those who remain unqualified in the test even after the four consecutive chances shall be reverted to their original posts. In the case of any person whose promotion has already been approved by the Director of Collegiate Education before the commencement of these Statutes, such promotion shall be deemed to have been validly made. WA Nos.893 & 1442/08 - 5 - Going by the above quoted statute, it is clear that, a last grade servant, subject to satisfying the conditions specified therein, is eligible for promotion. Gardner is a post borne on the Kerala Last Grade Service under the Kerala Government. While filling up vacancies in various posts, qualification and method of appointment in similar Government Institutions have to be followed by virtue of Statute 66 of the aforementioned Statute. Statute 66 reads as follows:- “66. Filling up of vacancies.- Subject to the rules in force in similar Government Institutions regarding qualifications and method of appointment, the vacancies in the higher grades shall be filled up by promotion from the next lower categories, if qualified persons are available, according to seniority in the case of non-selection posts, and according to merit and seniority in the case of selection posts and if there are no candidates available for promotion to the higher grades, the posts shall be filled up by direct recruitment by inviting applications and selection by the management in the manner laid down in these statutes.” WA Nos.893 & 1442/08 - 6 - 4. In view of the above provision, we think the view taken by the learned Single Judge that Gardner is also a last grade staff has to be upheld. In the absence of any enumeration of last grade staff under the Statute, there is nothing wrong in relying on the enumeration of such posts under the Kerala Last Grade Service. In the result, the Writ Appeals fail and they are accordingly dismissed. Sd/- K. Balakrishnan Nair, Judge. Sd/- P. Bhavadasan, Judge. DK. (True copy)