IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 6TH FEBRUARY 2008 / 17TH MAGHA 1929 OP.No. 25641 of 2001(C) ----------------------- PETITIONER: ------------ K.V.OUSEPH, INSTRUCTOR GRADE II, M.A.COLLEGE OF ENGINEERING, KOTHAMANGALAM. BY ADV. SRI.KRB.KAIMAL SRI.M.V.PAULOSE REJI RAMACHANDRAN RESPONDENTS: ------------- 1. STATE OF KERALA, REPRESENTED BY THE COMMISSIONER AND SECRETARY, HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETARIATE, THIRUVANANTHAPURAM. 2. DIRECTOR OF TECHNICAL EDUCATION, THIRUVANANTHAPURAM. 3. C.K.ISAAC, INSTRUCTOR GRADE I, M.A.COLLEGE OF ENGINEERING, KOTHAMANGALAM. 4. K.G.MATHAI, INSTRUCTOR GRADE I, M.A.COLLEGE OF ENGINEERING, KOTHAMANGALAM. 5. CHAIRMAN, GENERAL BODY, M.A. COLLEGE ASSOCIATION, KOTHAMANGALAM. BY SENIOR GOVERNMENT PLEADER,SRI.T.T.MUHAMOOD SRI.T.P.MATHAI SRI.C.HARIKUMAR SRI.GEORGE JACOB (JOSE) SRI.R.RENJITH SRI.M.T.SURESHKUMAR THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 06/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP NO.25641/2001/C ORDER ON CMP NO.41801/2001 IN OP NO.25641/2001 DISMISSED SD/- 6.2.2008 S.SIRI JAGAN, JUDGE APPENDIX PETITIONER'S EXHIBITS: EXT. P1: COPY OF THE APPOINTMENT ORDER NO.B1-547/71 DATED 1.4.1977 ISSUED TO THE PETITIONER. EXT. P2: COPY OF THE CIRCULAR NO.B1-45/73 DATED 20.8.77. EXT. P3: COPY OF THE APPLICATION DATED 22.8.1977 FOR THE POST OF 1ST GRADE INSTRUCTOR SUBMITTED BY THE PETITIONER. EXT. P4: COPY OF THE LETTER NO.145/J2/95/H.EDN. DATED 28.4.1997 ISSUED BY THE GOVERNMENT. EXT. P4(A): COPY OF THE ORDER NO.6080/J298 DATED 25.2.99 ISSUED BY THE GOVERNMENT. EXT. P5: COPY OF THE RELEVANT EXTRACT OF THE REGULATIONS OF THE KERALA UNIVERSITY. EXT P6: COPY OF THE PROMOTION ORDER NO.B1-33/78 DATED 21.10.1978 ISSUED BY THE 5TH RESPONDENT. EXT. P7: COPY OF THE FACT FINDING REPORT OF THE DEPUTY ACCOUNTANT GENERAL DATED 27.12.1999. EXT. P8: COPY OF THE REPRESENTATION DATED 19.1.2000 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXT. P9: COPY OF THE REPRESENTATION DATED 17.5.2000 SUBMITTED BY THE PETITIONER BEFORE THE GOVERNMENT. EXT. P10: COPY OF THE JUDGMENT DATED 6.9.2000 IN W.A. NO.1852 OF 2000 OF THE HON'BLE COURT. EXT. P11: COPY OF THE COMMUNICATION NO.26539/J3/2000/H.EDN. DATED 27.7.2001 FROM THE GOVERNMENT TO THE PETITIONER. EXT. P12: COPY OF THE RELEVANT EXTRACT OF THE SPECIAL RULES FOR KERALA TECHNICAL EDUCATION SERVICE. EXT. P13: COPY OF THE ORDER G.O.RT.NO.769/82/EDN. DATED 4.5.1982 ISSUED BY THE GOVERNMENT. OP NO.25641/2001/C RESPONDENT'S EXHIBITS: EXT. R4(A): COPY OF JUDGMENT DATED 2.7.1982 IN O.P. NO.2483/1980. EXT. R4(B): COPY OF THE PROCEEDINGS DATED 20.8.1982 ISSUED BY THE 2ND RESPONDENT. EXT. R4(C): COPY OF THE COMMUNICATION DATED 18.11.1976 ADDRESSED TO THE PRINCIPAL OF THE COLLEGE BY THE 2ND RESPONDENT. /TRUE COPY/ P.A. TO JUDGE JP S.SIRI JAGAN, J. ======================= O.P. No. 25641 of 2001 (C) ======================= Dated this the 6th day of February, 2008 JUDGMENT The petitioner retired as Instructor Grade II in Civil Engineering of M.A. College of Engineering, Kothamangalam. He was appointed as Instructor Grade II on 1.4.1977. The post of Instructor Grade II is a feeder category for promotion to the post of Instructor Grade I. The qualification prescribed for that post is diploma and 8 years' experience in a reputed engineering workshop. On 20.8.1977 the Principal of that College called for applications from among Instructor Grade II, for consideration for promotion to the post of Instructor Grade I. The petitioner also submitted his option for being considered for promotion. However, the respondents 3 and 4, who were seniors to the petitioner were promoted on 31.1.1972. Much later in 2000 by Ext.P7 audit report, the petitioner came to understand that the respondents 3 and 4 did not possess the experience qualification O.P. No. 25641/2001/C -2- prescribed for the post. Therefore, petitioner submitted Ext.P8 representation for considering him for promotion in the place of respondents 3 and 4. This Court directed the Government to consider Ext.P8 representation. Pursuant thereto, Ext.P11 order was passed, by which the Government rejected the representation. Ext.P11 order is under challenge before me. 2. The petitioner does not now dispute that the 4th respondent does have the qualification prescribed for the post. As far as the 3rd respondent is concerned the petitioner contends that in Ext.P7 audit report, it was specifically found that the 3rd respondent did not possess the experience qualification of 8 years in a reputed workshop. He points out that in Ext.P7 audit report, it has been specifically found that the 3rd respondent had only less than 6 years experience and therefore he was not qualified to be considered for promotion as Instructor Grade I. Petitioner submits that the question of sufficiency of the experience qualification of the 3rd respondent was not considered by the Government in Ext.P10, instead in Ext.10 O.P. No. 25641/2001/C -3- what was considered was only the case of the 4th respondent. 3. In so far as the petitioner does not dispute the sufficiency of qualification of the 4th respondent, I need consider only the case of the petitioner as against the 3rd respondent. According to the 3rd respondent, the original petition suffers from the vice of delay and laches, in so far as the promotion was in 1977, which is being challenged by the petitioner only in 2000. He would further submit that Ext.P7 audit objection in respect of the 3rd respondent has subsequently been dropped on the explanation offered by the appointing authority. Regarding the merits of the contention of the petitioner, he would submit that as is clear from Ext.P12 itself the qualifications have to be considered as per the rules applicable in 1972. 5 years' experience in a Laboratory or Workshop of an engineering institution/concern after obtaining the diploma is the alternate experience qualification which the 3rd respondent did possess is the contention raised by the 3rd respondent. 4. In answer to the contentions of the 3rd respondent, O.P. No. 25641/2001/C -4- the petitioner would submit that he did not challenge the promotion earlier since the fact that the 3rd respondent did not have the requisite experience qualification was made known to the petitioner only through Ext.P7 audit report. Immediately on receipt of that he has taken steps to challenge the promotion. Regarding the 2nd contention, the petitioner would contend that the fact that audit objection was subsequently dropped is not relevant because the 3rd respondent in fact did not possess the experience qualification. On the contention of the 3rd respondent, the counsel for the petitioner would contend that the experience qualification mentioned is in a laboratory or workshop of engineering institution and as is clear from Ext.P7, the experience of the 3rd respondent is in Poismac Industries, South Vazhakulam and Premier Tyres Ltd., Kalamassery which cannot qualify as laboratory or workshop of an engineering institution. 5. I have considered the rival contentions in detail. I am not inclined to countenance the contentions of the petitioner for more than one reason. First is that, admittedly, the promotion O.P. No. 25641/2001/C -5- was in 1977 and the petitioner raised objection against the same in 2000. Secondly, the department itself dropped the audit objection against the 3rd respondent. The question as to whether M/s. Poismac Industries and Premier Tyres Limited is laboratory or workshop of engineering institution is a matter which should be decided by experts who have duly considered the same and finally dropped the audit objection against the 3rd respondent. Therefore, I am not inclined to interfere with the promotions given to the respondents 3 and 4 and accordingly, the original petition is dismissed. S.SIRI JAGAN, JUDGE jp