IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 16TH JUNE 2010 / 26TH JYAISTHA 1932 WP(C).No. 37049 of 2009(A) ---------------------------------------- PETITIONER(S): ------------------------- PAULSON.I.P., JUNIOR INSTRUCTOR, GOVERNMENT I.T.I., KALAMASSERY. BY ADVS. SRI.ELVIN PETER P.J., SMT.POOJA SURENDRAN. RESPONDENT(S): ---------------------------- 1. THE DIRECTOR OF TRAINING, INDUSTRIAL TRAINING DEPARTMENT, THYCAUD, THIRUVANANTHAPURAM. 2. THE JOINT DIRECTOR OF TRAINING, DIRECTORATE OF TRAINING, THYCAUD, THIRUVANANTHAPURAM. 3. SRI.SHYBI JOHN, SENIOR INSTRUCTOR, NOW POSTED AS ARITHMETIC CUM DRAWING INSTRUCTOR, GOVERNMENT I.T.I., MANEEDU, ERNAKULAM DISTRICT. R1 & R2 BY GOVERNMENT PLEADER SRI. ANTONY MUKKATH R3 BY ADVS. SRI.JOHN K.GEORGE, SRI.P.K.VARGHESE. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.37049/2009 A APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE ORDER DTD. 22/03/2004 ISSUED BY THE 2ND RESPONDENT. P2: COPY OF THE ORDER DTD. 25/09/2007 ISSUED BY THE 1ST RESPONDENT. P3: COPY OF THE APPLICATION DTD. 27/06/2009 SUBMITTED BY THE PETITIONER. P4: COPY OF THE ORDER DTD. 3/10/2009 ISSUED BY THE 2ND RESPONDENT. P5: COPY OF THE REPRESENTATION DTD. 26/11/2009 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. P6: COPY OF THE REPRESENTATION DTD. 10/12/2009 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. P7: COPY OF THE COMMUNICATION DTD. 8/12/2009 ISSUED BY THE STATE PUBLIC INFORMATION OFFICER. P8: COPY OF THE JUDGMENT DTD. 10/09/2009 IN WPC.NO.21307/2009 ETC. OF THIS HON'BLE COURT. P9: COPY OF G.O. DTD. 19/06/2009. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss ANTONY DOMINIC, J. ------------------------- W.P.(C.) No.37049 of 2009 --------------------------------- Dated, this the 16th day of June, 2010 J U D G M E N T Petitioner is working as Junior Instructor in Government ITI, Kalamassery. In this writ petition, he challenges Ext.P4 to the extent the 3rd respondent, a Senior Instructor, is transferred and posted as Junior Instructor - Arithmetic cum Drawing Instructor at Government ITI, Maneedu in Ernakulam District. According to the petitioner, by Ext.P3, he had applied for a transfer and posting to Government ITI Maneedu and if Ext.P4 order transferring and posting the 3rd respondent was not issued, he would have been the person eligible to be posted in her place. It is with this grievance, this writ petition has been filed. 2. Contention raised by the learned counsel for the petitioner is that by Ext.P9, when the Government sanctioned 10 ITIs, including the Government ITI at Maneedu, 17 new posts each were allowed to be created that included the posts of Junior Instructor and Arithmetic cum Drawing Instructor, which are posts WP(C) No.37049/2009 -2- in the equivalent cadre and that post of Senior Instructor was not created. It is contended that the 3rd respondent is a Senior Instructor and therefore, she could not have been posted as Junior Instructor and Arithmetic cum Drawing Instructor. Apart from Ext.P9, learned counsel for the petitioner made reference to the provisions contained in the Kerala Craftsmen Training Subordinate Service Rules. In Rule 2 providing for constitution of service Senior Instructor / Millwright Instructor is at category No.2, where as Junior Instructor including Arithmetic cum Drawing Instructor is at Category No.3. It is also shown that the post of Senior Instructor / Millwright Instructor is the promotion post of Junior Instructor. Therefore, the contention is that the post of Senior Instructor / Millwright Instructor carrying a higher scale of pay is a post higher to that of Junior Instructor and that unless the 3rd respondent, who is a Senior Instructor, is reverted, it is not possible for the respondents to transfer and post her against the post of Junior Instructor and allow her to draw salary as applicable to Senior Instructors. 3. The learned Government Pleader, on instructions, contended that in terms of the Government Order issued in 1988, in WP(C) No.37049/2009 -3- Government ITIs Senior Instructor and Junior Instructors are to be posted in the ratio of 1 :1. It is stated that it is in pursuance to the said Government Order that the impugned order of posting was issued. 4. Learned counsel for the 3rd respondent contended that in Ext.P9 Government Order, though the post of Senior Instructor was not created, in Ext.P4, several Senior Instructors were posted as Junior Instructors. It is stated that it was apparently pursuant to the policy decision of the Government to post Senior Instructors in the vacancies of Junior Instructors in order to maintain ratio of 1:1 that she and other Senior Instructors were posted. 5. As already seen, going by the Special Rules, the post of Junior Instructors to be filled up by Direct Recruitment and the post of Senior Instructors, on carrying higher scale of pay, has to be filled up by promotion from among Junior Instructors. Ext.P9 shows that the post created is only that of Junior Instructors. If so, the post of Junior Instructor at Government ITI, Maneedu, could have been filled up only by transfer and posting a Junior Instructor, and posting of a Senior Instructor is possible only if reversion is ordered and posting is made. In this case, nothing of that sort has been done. On the WP(C) No.37049/2009 -4- other hand, the 3rd respondent, a Senior Instructor, is posted in the vacancy of a Junior Instructor and is allowed to draw salary as applicable to Senior Instructors. Since the service is governed by Special Rules referred to above such a posting is impermissible. Posting of an employee working in the cadre of Senior Instructor in the vacancy of a Junior Instructor can not be justified on the ground of policy also, for the simple reason that even a policy decision cannot be taken contrary to the statutory Rules, which govern the field. The ratio of 1:1 canvassed by the learned Government Pleader also will not help the respondents to sustain the impugned order. The ratio, at best, will enable the respondents to post Senior Instructor and Junior Instructor as per the ratio, but that does not mean that a Senior Instructor can be posted against the vacancy of Junior Instructor. Therefore, the posting of the 3rd respondent as Junior Instructor in the Government ITI, Maneedu ordered by Ext.P4 cannot be sustained. However, fact remains that the 3rd respondent was transferred from ITI, Pallikkathodu and if she is transferred out without suitable accommodation, grave prejudice will be caused to her. Therefore, clarifying that the posting of the 3rd respondent as Junior Instructor WP(C) No.37049/2009 -5- at the Government ITI, Maneedu and directing that necessary consequential orders, considering Ext.P3 application made by the petitioner and also for suitable accommodation of the 3rd respondent will be passed by the 1st respondent, this writ petition is disposed of. (ANTONY DOMINIC, JUDGE) jg