IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 27TH OCTOBER 2011 / 5TH KARTHIKA 1933 WP(C).No. 6440 of 2009(Y) ------------------------------ PETITIONER(S): ------------------ 1. M.M.SAGEER,S/O.M.P.MAKKAR,MOOTHEDAN HOUSE,KANDANTHARA, ALLAPRA,PERUMBAVOOR, ERNAKULAM DISTRICT. 2. M.M.ERSHAD, S/O.M.P.MAKKAR,MOOTHEDAN HOUSE, KANDANTHARA,ALLAPRA, PERUMBAVOOR, ERNAKULAM DISTRICT. BY ADV. SRI.RAJESH VIJAYAN RESPONDENT(S): ------------------- 1. SUB INSPECTOR OF POLICE,PERUMBAVOOR, ERNAKULAM DISTRICT. 2. DEPUTY SUPERINTENDENT OF POLICE, PERUMBAVOOR, ERNAKULAM DISTRICT. 3. I.N.T.U.C., HEAD LOAD WORKERS UNION, REP.BY ITS SECRETARY, PULIYANPILLY UNIT. 4. C.I.T.U,HEAD LOADL WORKERS UNION, REP.BY ITS SECRETARY,PULIYANPILLY UNIT. 5. S.T.U.HEAD LOAD WORKERS UNION,REP.BY ITS SECRETARY,PULIYANPILLY UNIT. WP(C).No. 6440 of 2009(Y) -2- 6. ASSISTANT LABOUR OFFICER,PERUMBAVOOR. *(REP. BY ITS CONVENOR) *[THE WORDS REP. BY CONVENOR OF R6 DELETED VIDE ORDER DT.03/03/09 IN I.A.3137/09] ADV. SRI.JOICE GEORGE FOR R3 TO 5 GOVT. PLEADER SRI.DHANESH MATHEW MANJOORAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/10/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.N.RAVINDRAN, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= W.P.(C) No. 6440 of 2007 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 9th day of June, 2009 JUDGMENT Heard Sri.P.Santhoshkumar, the learned counsel appearing for the petitioner and Smt. Anu Sivaraman, the learned Senior Government Pleader appearing for the respondents. 2. The petitioner is presently working as a Lascar in the Minor Irrigation Department. He entered service on 23-1-2006 on advice by the Kerala Public Service Commission . As per the special rules, the method of appointment of Drivers in various departments is by promotion from any other class or category in the General Subordinate Service or by transfer from any other service. In the absence of suitable candidates for appointment by promotion or by transfer, direct recruitment can be resorted to. The Note to rule 5 of the Special Rules provided that the practical test for candidates seeking appointment by direct recruitment will be conducted by the Kerala Public Service Commission and for candidates seeking appointment by transfer or promotion by the Coordinating Agency specified in G.O.(P) W.P.(C) No. 6440/09 2 No.202/72/PD dated 22-5-1972. 3. The special rules were amended by G.O.(P) No.23/2003/P&ARD dated 14-8-2003. As per the amended special rules, appointments by promotion/transfer and by direct recruitment have to be made in the ratio of 1:3. The Note to rule 5 was deleted and it was stipulated that proficiency in driving light motor vehicle is to be proved by a practical test conducted by the Kerala Public Service Commission. Overlooking this amendment, which came into force on 14-8-2003, the Government permitted District Employment Officers to conduct the practical test in terms of G.O.(P) No.202/72/PD dated 22-5-1972. A selection was conducted in which the petitioner participated. He was selected and included in the list as Sl. No. 4. There were admittedly four vacancies. All the persons ranked above the petitioner were appointed as Drivers by transfer.. The petitioner was not appointed. This writ petition was thereupon filed seeking a writ in the nature of mandamus commanding the respondents to appoint the petitioner as Driver by transfer in one of the vacancies existing in the offices of respondents 3 and 4. 4. The fact that a selection was conducted on 4-5-2005 is not in dispute. It is also not in dispute that three persons ranked above the petitioner were appointed by transfer as Drivers. The short question that W.P.(C) No. 6440/09 3 arises for consideration in this writ petition is whether in the light of the stipulations in the amended special rules, the petitioner's claim for appointment by transfer is tenable, since the practical test was admittedly not conducted by the Kerala Public Service Commission. 5. As per the special rules as it stood prior to 14-8-2003, the District Employment Officer, the Coordinating Agency specified in G.O.(P) No.202/72/PD dated 22-5-1972 was competent to conduct the practical test to select candidates for appointment by transfer or promotion as Drivers.. With the amendment of the special rules that came into force with effect from 14-8-2008, the District Employment Officer ceased to be the Co- ordinating Agency. Thereafter the practical test has to be conducted by the Kerala Public Service Commission. The petitioner was admittedly not selected after following the prescribed procedure. Therefore, the selection of the petitioner was not in accordance with the special rules. The mere fact that the persons selected along with the petitioner have been appointed as Drivers by transfer will not entitle the petitioner to contend that though he was selected in violation of the amended special rules, he should be given appointment by transfer as Driver. Since the claim made by the petitioner is not sustainable as per the amended special rules, the reliefs prayed for by the petitioner cannot be granted. W.P.(C) No. 6440/09 4 I accordingly hold that there is no merit in this writ petition. The writ petition fails and is dismissed without prejudice to the right of the petitioner to be considered for appointment by transfer as Driver as per the special rules. P.N.RAVINDRAN, JUDGE. mn.