IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR THURSDAY, THE 9TH JULY 2009 / 18TH ASHADHA 1931 WA.No. 244 of 2008() AGAINST THE JUDGMENT IN WPC.3265/2006 DATED 3.8.2007 APPELLANTS: RESPONDENTS 1 AND 2 IN THE WP: 1. DIRECTOR OF TOURISM, DEPARTMENT OF TOURISM, PARK VIEW, THIRUVANANTHAPURAM. 2. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF TOURISM. BY SENIOR GOVERNMENT PLEADER SRI.BENNY GERVASIS RESPONDENTS: PETITIONER & ADDL.3RD RESPONDENT IN WP: 1. M.G. SUSEELAN, CHAUFFEUR, DEPARTMENT OF TOURISM, RAMANILAYAM, GUEST HOUSE, THRISSUR. 2. V.J. PAULSON, STEWARD, KERALA HOUSE, KANYAKUMARI. BY ADV. SRI.M.C.JOHN FOR R2 SRI.P.RAVINDRAN, SENIOR ADVOCATE FOR R1 SRI. ANIL SIVARAMAN FOR R1 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 09/07/2009 ALONG WITH WA NO.1017 OF 2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & C.T. RAVIKUMAR, JJ. --------------------------------------------- W.A. NOS.244 & 1017 OF 2008 --------------------------------------------- Dated this the 9th day of July, 2009 JUDGMENT Balakrishnan Nair, J. W.A. No.244 of 2008 W.P.(C) No.3265 of 2006 filed by the respondents herein was disposed of along with O.P. No. 3734 of 2003 filed by one Mr.V.J. Paulson. The respondents in W.P.(C) No. 3265 of 2006 are the appellants herein. The brief facts of the case are the following: 2. The first respondent/writ petitioner was appointed as Chauffeur Grade II in the Department of Tourism on 17.7.1979. He was promoted as Chauffeur Grade I on 11.11.1987 and still later as Higher Grade Chauffeur. He was desirous of being appointed as Steward. The qualification and method of appointment to the said post was prescribed by the Government by Ext.P1 series orders. As per the said orders, the W.A. NOS. 244 & 1017/2008 2 post of Chauffeur was not a feeder category for appointment to the post of Steward. Ext.P1 specifically stated that the feeder categories for appointment to the post of Steward will be Caretakers, Butlers and Waiters. The said order also prescribed the qualification for promotion to the post of of Steward. By Ext.P1(a), the qualifications were modified. As per Ext.P1(b), 50% of the vacancies of Stewards was set apart to be filled up by promotion from among the qualified regular employees in the Tourism Department. This statement in Ext.P1(b) when read alone, may give the impression that employees like Chauffeurs were also eligible for promotion to the post of Stewards. Based on the said contention, the writ petitioner moved this Court. This Court by Ext.P2 judgment upheld his contention and ordered to consider his application. But, in appeal, the Division Bench vacated the finding of the learned Single Judge that the petitioner is eligible to apply for the post of Steward and left the matter to be decided by the appointing authority, after hearing all parties. Pursuant to the direction in the judgment in the Writ Appeal, the claim of the petitioner for promotion as Steward was considered and rejected by Ext.P3 order dated 24.9.1995. In the meantime, the Government issued Special Rules dated 29.9.1995, prescribing the qualifications and method of appointment to the post of Steward. Chauffeur Grade II was included W.A. NOS. 244 & 1017/2008 3 in the feeder category, for appointment by transfer to 25% of the vacancies. The qualifications for appointment to the said post by promotion/transfer were the following: Category: Method of : Qualification appointment ............................................................................................ 9. Steward By transfer/ 1. Pass in Standard IV. promotion 2. Experience in Bungalow Management and Catering in Indian, European and other foreign styles. 3. Knowledge of keeping accounts of catering and stock of houses. 4. Minimum five years' service in the Department of Tourism. 3. The petitioner filed O.P. No.17620 of 1995 challenging Ext.P3 order. That Original Petition was dismissed by judgment dated 25.10.1996. In Writ Appeal, a Division Bench of this Court, by Ext.P5 judgment, directed consideration of the representation filed by the petitioner and others. The main claim raised by the petitioner and others in their representation was that they may be sent for training, so that they will acquire the qualification for being considered for appointment by transfer as Steward. But, the said claim was considered and rejected by Ext.P6 order dated 3.1.1997. That order was challenged by the petitioner W.A. NOS. 244 & 1017/2008 4 and another by filing O.P. No.2429 of 1997 which was dismissed by Ext.P7 judgment dated 13.11.2001. The petitioners filed W.A. No. 741 of 2002 against the said judgment. During the pendency of the Writ Appeal, relying on the submissions of the appellants in that appeal (the first appellant was the writ petitioner herein) that their juniors are being sent for training, this Court ordered to send them also for training. By Ext.P9 order dated 3.2.2003, the petitioner herein and three others were sent for training, so that they can acquire the qualifications prescribed in the Special Rules for appointment by transfer as Steward. In the said order, it was specifically stated that “their seniority in the Steward cadre will be fixed from the day on which their officiation in the category”. On completion of training, the petitioner was reverted to the cadre of Chauffeur Grade II by Ext.P10 order dated 17.5.2003 and further promoted as Steward by Ext.P11order dated 23.5.2003. The petitioner filed Ext.P12 detailed representation claiming that he may be promoted to the cadre of Steward with retrospective effect from 4.11.1994. In the meanwhile, W.A. No. 741 of 2002, which was pending before this Court was disposed of directing the competent authority to consider the representation of the petitioner, the first appellant therein. The Director, Department of Tourism, Thiruvananthapuram considered the said W.A. NOS. 244 & 1017/2008 5 representation and rejected the same by Ext.P14 order dated 19.12.2005. Feeling aggrieved by the said order, the Writ Petition was filed seeking the following reliefs: a) call for the records leading to Ext.P14 and quash the same by the issue of a writ in the nature of certiorari or any other appropriate writ, order or direction. b) issue a writ in the nature of mandamus directing the respondents to refix the petitioner's seniority in accordance with the declaration contained in Ext.P2 judgment. c) issue a writ of mandamus directing the respondents to give retrospective promotion and its consequential benefits on the basis of his length of service as chauffeur as per the special rules. d) declare that the petitioner was entitled to appointment to the post of steward from the date of Ext.P2 judgment. 4. The appellants filed a detailed counter affidavit resisting the prayers in the Writ Petition. After hearing both sides, the learned Single Judge held that out of the four qualifications prescribed for the post of Steward, which we have already quoted above, qualification Nos.2 and 3 will not be applicable to incumbents claiming appointment by transfer W.A. NOS. 244 & 1017/2008 6 from categories like Telephone Operator, Plumber, Chauffeur etc. If persons belonging to those categories have a pass in Standard IV and have completed the minimum five years' of service in the Department of Tourism, they should be considered for promotion to the post of Steward, according to their length of service in the Department. So, the learned Single Judge directed reconsideration of the claim of the petitioner for being appointed to the post of Steward in the 25% quota reserved for persons in the light of qualification Nos.1 and 4 only. It was also ordered that if any persons are affected, they should be given notice and a fresh decision, concerning appointment by transfer, should be taken. Apparently, the appointments made in the transfer quota, after commencement of the Special Rules, have to be reviewed and regulated in the light of the declaration made by the learned Single Judge. Feeling aggrieved by the direction of the learned Single Judge, this Writ Appeal is filed. 5. The appellants would submit that the direction to ignore two qualifications for appointment by transfer is unsustainable in law. The Government have no obligation to send the persons in the feeder category for training. When the Government sent the first batch for training, the W.A. NOS. 244 & 1017/2008 7 petitioner was included in the list and immediately thereafter, he was appointed as Steward also. It is pointed out that the reliefs granted were not reliefs sought in the Writ Petition. First respondent did not have any such case in his representations or in the Writ Petition. Therefore, the present direction issued by the learned Single Judge is liable to be vacated, it is submitted. 6. We heard Sri. P. Ravindran, learned senior counsel for the first respondent. According to him, once the Special Rules came into force, the appellants have a duty to send the persons in the feeder category for training, for appointment by transfer, according to their seniority reckoned with reference to their length of service in the Department. The appellants did not discharge that duty and have finally decided to send for training the first respondent and other claimants only in 2003. To redress the above injustice, the learned Single Judge issued the above mentioned directions. 7. Having regard to the job requirement of the post of Steward, the rule making authority in its wisdom prescribed qualifications. Only those who are qualified as per the Special Rules alone can be considered for W.A. NOS. 244 & 1017/2008 8 appointment. Of course, to give promotional avenues to persons working in various categories in the Department, they were included in the feeder category, so that, if they are qualified, they can also be considered for promotion. On including them in the feeder category, the appellants did not owe any duty to send them for training, so that they will acquire the qualification. The appellants have chosen to send persons in the feeder category for training for the first time in 2003. The list for the same was prepared for the first time in 2002. The first respondent/writ petitioner was included in the first batch and on completion of his training, he was appointed also. We find nothing illegal or irrational in the said action of the appellants. In Ext.P9, there was a specific stipulation that the seniority of the transferee appointee in that post will be counted only from the date on which he commences officiation in that category. No one has challenged Ext.P9 and it has become final also. Even otherwise, having regard to the facts of the case, on acquisition of qualification at the earliest point of time, the first respondent/writ petitioner was posted as Steward. The appellants never had any obligation under the Rules to send the claimants for training, so that they acquire the qualification. Therefore, the claim made in the Writ Petition was plainly untenable. We fully agree with the appellants that the declaration made by the learned W.A. NOS. 244 & 1017/2008 9 Single Judge to ignore two qualifications is unsustainable. Even in a Writ Petition where the rules are challenged, we think, this Court will not be justified in making such a declaration. 8. In the result, the Writ Appeal is allowed. The judgment of the learned Single Judge is reversed and the Writ Petition is dismissed. W.A. No. 1017 of 2008 The judgment in W.A. No.244 of 2008 will govern this Writ Appeal also. Accordingly, it is disposed of. (K. BALAKRISHNAN NAIR) JUDGE (C.T. RAVIKUMAR) JUDGE sp/ W.A. NOS. 244 & 1017/2008 10 K.BALAKRISHNAN NAIR & C.T. RAVIKUMAR, JJ. W.A. NOS.244 & 1017/2008 JUDGMENT 9th July, 2009 W.A. NOS. 244 & 1017/2008 11