IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 20TH AUGUST 2010 / 29TH SRAVANA 1932 WA.No. 1408 of 2010() --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.2197/2009 Dated 06/07/2010 .................... APPELLANT(S)/RESPONDENTS 4 AND 7 : -------------- 1. T.P.SANJEEV KUMAR, BUTLER, GOVT.GUEST HOUSE, GURUVAYUR 2. JAYAKRISHNAN.A., BUTLER, GOVT.GUEST HOUSE, KOZHIKODE BY ADV. SRI.N.SUGATHAN SMT.VARSHA BHASKAR RESPONDENT(S): --------------- 1. JAYAKUMAR.S, NOW WORKING AS HOSPITALITY ASSISTANT, GOVT. GUEST HOUSE, KOVALAM, THIRUVANANTHAPURAM RESIDING AT OOTTUKUZHIKALLUVILA VEEDU, MANGALATHUKONAM, KATTACHALKUZHI P.O. THIRUVANANTHAPURAM 695 509 2. STATE OF KERALA, REPRESENTED BY SECRETARY, TOURISM DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM 695 001 3. THE DIRECTOR OF TOURISM, PARK VIEW, THIRUVANANTHAPURAM 695 007 4. THE ADMINISTRATIVE OFFICER, TOURISM DEPARTMENT, THIRUVANANTHAPURAM 695 007 5. B.GOPINATHAN NAIR, BUTLER/CARETAKER, GOVT. GUEST HOUSE, THRISSUR 680020 6. V.M.ABDUL SALAM, BUTLER/CARETAKER, GOVT.GUEST HOUSE, PONMUDI 685 546. BY ADV.SRI.BLAZE K.JOSE SR.GOVT.PLEADER SRI.BENNY GERVASIS THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 17/08/2010, THE COURT ON 20/08/2010 DELIVERED THE FOLLOWING: J.CHELAMESWAR, C.J. & P.N.RAVINDRAN, J. ----------------------------------------- W.A.No.1408 of 2010 ----------------------------------------- Dated this the 20th day of August, 2010 JUDGMENT Ravindran,J. The appellants are respondents 4 and 7 in W.P(C)No.2197 of 2009. The first respondent is the petitioner and respondents 2 to 6 are the other respondents therein. The writ petition was filed challenging the promotion given to the appellants and respondents 5 and 6 herein to the category of Butler/Caretaker. By the judgment under challenge the learned single Judge held that the appellants and respondents 5 and 6 herein (respondents 4 to 7 in the writ petition) were not qualified for appointment to the post of Butler/Caretaker and that their promotion is illegal and could not have been ordered. The writ petition was accordingly allowed and the official respondents were directed to consider the claim of the writ petitioner for promotion to the category of Butler/Caretaker. Hence this appeal. 2. We heard Sri.N.Sugathan, learned counsel appearing for the appellants and Sri.Blaze K.Jose, learned counsel appearing for the first respondent/writ petitioner. Learned counsel for the appellants contended that the appellants were appointed by Annexure II order W.A.No.1408 of 2010 -:2:- dated 19-7-2008, which was not under challenge in the writ petition and therefore, the learned single Judge erred in interfering with their appointment as Butler. The learned counsel also contended that the second appellant had undergone a course in Food and Beverage Service conducted by the Food Craft Institute Extension Centre, Trivandrum and therefore, he is qualified to be appointed as Butler/ Caretaker. Per contra, Sri.Blaze K.Jose, learned counsel appearing for the first respondent/writ petitioner contended that though the appellants were served they did not enter appearance or contest the writ petition and that the appellants cannot therefore, canvas the correctness of the decision of the learned single Judge on the grounds raised in the writ appeal. The learned counsel for the first respondent also contended that the appellants, who do not possess one of the essential qualifications prescribed by the Special Rules, could not have been appointed as Butler/Caretaker and that their appointments were, therefore, rightly set aside by the learned single Judge. 3. We have considered the rival submissions made at the Bar by learned counsel appearing for the appellants and the learned counsel appearing for the first respondent. We have also gone through the pleadings and the materials on record. The qualifications prescribed W.A.No.1408 of 2010 -:3:- for appointment to the category of Butler/Caretaker in the Special Rules for the Kerala Tourism Subordinate Services, 1995 are as follows:- “17. Butler/ By Transfer 1. Pass in Standard IV. Caretaker 2. Craft Certificate in Restaurant and Counter Service from Government Food Craft Institute or any other qualification recognised by Government as equivalent thereto. Note:- The existing incumbents in posts shall be exempted from the above qualifications. By Direct 1. Pass in Standard VII recruitment 2. Craft Certificate in Restaurant and Counter Service from Government Food Craft Institute or any other qualification recognised by Government as equivalent thereto.” The promotion given to the appellants and respondents 5 and 6 herein was challenged on the ground that they do not possess a Craft Certificate in Restaurant and Counter Service from Government Food Craft Institute or any other equivalent qualification. It is not in dispute that the name of the course, Craft Certificate in Restaurant and Counter Service, was later modified as Craft Certificate in Food and Beverages Service. The appellants however, do not dispute the W.A.No.1408 of 2010 -:4:- fact that before they were appointed to the category of Butler/Caretaker they had not obtained a Craft Certificate in Restaurant and Counter Service or Certificate in Food and Beverages Service from the Government Food Craft Institute. They have no case that they possess an equivalent qualification recognised by the Government. As a matter of fact the appellants did not enter appearance in the writ petition and contest the writ petition. The case now set out in the memorandum of writ appeal is that after the appellants were appointed to the category of Butler/Caretaker the second appellant had undergone a refresher course in Food and Beverage Service from the Food Craft Institute Extension Centre, Thiruvananthapuram. Yet another contention raised is that the order appointing the appellants to the category of Butler/Caretaker was not challenged. In our opinion there is no merit in any one of the said contentions. Annexure I, which is relied on by the appellants to contend that the second appellant possesses the qualification, does not disclose that he possesses a Craft Certificate in Restaurant and Counter Service or Craft Certificate in Food and Beverages Service issued by the Food Craft Institute. All that Annexure I states is that the second appellant has successfully completed a Special Refresher W.A.No.1408 of 2010 -:5:- Course in Food and Beverage Service conducted during July-August 1999 at the Food Craft Institute Extension Centre, Thiruvananthapuram. The mere fact that the second appellant had undergone a Special Refresher Course in Food and Beverage Service for a period of one month cannot be a ground to hold that he possesses the requisite qualification. The appellants have no case that the certificate evidenced by Annexure I is the Craft Certificate recognised by the Special Rules. The contention that the appellants possessed the requisite qualification when they were appointed as Butler/Caretaker cannot therefore be sustained. 4. The next ground raised is that the appellants were promoted by Annexure II order dated 19.7.2008 and that the said order was not challenged in the writ petition. By Annexure II order dated 19.7.2008 the appellants and two others were promoted to the category of Butler/Caretaker. By Ext.P8 order impugned in the writ petition, which was passed on 4-11-2008, Annexure II order was modified by cancelling the promotion given to Sri.A.G.Giri and Sri.B.Rajendran Pillai and in their place respondents 5 and 6 were promoted. The first respondent/writ petitioner thereupon submitted a representation objecting to the promotion of the appellants and respondents 5 and 6. W.A.No.1408 of 2010 -:6:- The said representation was rejected on the ground that promotions were effected based on seniority and that the writ petitioner's claim for promotion will be considered as and when his turn arises. The writ petition was thereupon filed challenging Exts.P8 and P10 and seeking the following reliefs:- “i) Issue a writ of certiorari or any other appropriate writ order or direction calling for the records leading to Ext.P8 and P10 orders and quash the same. ii) Declare that all transfer/promotions granted to Hospitality Assistants in the service of Tourism Department to the post of Butler/Caretaker and Steward without taking into account the qualifications prescribed by the Special Rules for the Kerala Tourism Subordinate Service, 1995 is illegal and therefore liable to be cancelled. iii) Writ of mandamus or any other appropriate writ, order or direction commanding the respondents to appoint Hospitality Assistants by transfer/ promotion in the service of Tourism Department to the post of Butler/Caretaker and thereafter to Steward only on the basis of qualifications prescribed by the Special Rules for the Kerala Tourism Subordinate Service, 1995 and by seniority among the qualified hands. iv) Writ of Mandamus or any other appropriate writ, order or direction commanding the respondents to W.A.No.1408 of 2010 -:7:- promote the petitioner to the post of Butler/Caretaker retrospectively with effect from the date of his turn for transfer/promotion on the basis of his qualification and seniority, with all attended benefits and backwages.” 5. In our opinion, in the nature of the reliefs prayed for, the omission of the writ petitioner to challenge Annexure II order cannot be said to be fatal to the writ petition. The writ petitioner had, apart from challenging Ext.P8 order, sought a declaration that the appointment by transfer of Hospitality Assistants to the category of Butler/Caretaker without taking into account the qualifications prescribed by the Special Rules is illegal and is liable to be cancelled. He had also prayed for consequential reliefs including a direction to the official respondents to appoint Hospitality Assistants to the category of Butler/Caretaker only on the basis of qualifications prescribed in the Special Rules. The appellants did not enter appearance in the writ petition notwithstanding service of notice. In such circumstances they cannot be heard to contend that the judgment of the learned single Judge is liable to be set aside for the mere reason that the order promoting them had not been specifically challenged. In any case, having regard to the nature of the reliefs prayed for and the admitted fact that the appellants do not possess the qualifications prescribed in W.A.No.1408 of 2010 -:8:- the Special Rules the said contention is liable to be rejected. We accordingly hold that there is no merit in the writ appeal. The writ appeal fails and is dismissed. J.CHELAMESWAR, Chief Justice P.N.RAVINDRAN, Judge. ahg. J.CHELAMESWAR, C.J. & P.N.RAVINDRAN, J. --------------------------- W.A.No.1408 of 2010 ---------------------------- JUDGMENT 20th August, 2010