IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 6TH JULY 2010 / 15TH ASHADHA 1932 WP(C).No. 2197 of 2009(J) ------------------------- PETITIONER(S): --------------- JAYAKUMAR.S., NOW WORKING AS HOSPITALITY ASSISTANT GOVT. GUEST HOUSE, KOVALAM, THIRUVANANTHAPURAM RESIDING AT OOTTUKUZHI KALLUVILA VEEDU, MANGALATHUKONAM, KATTACHALKUZHI PO, THIRUVANANTHAPURAM. BY ADV. SRI.BLAZE K.JOSE RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY, TOURISM DEPARTMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF TOURISM, PARK VIEW, THIRUVANANTHAPURAM. 3. ADMINISTRATIVE OFFICER TOURISM DEPARTMENT, THIRUVANANTHAPURAM. 4. T.P. SAJEEVKUMAR BUTLER/CARETAKER, GOVERNMENT GUEST HOUSE GURUVAYOOR. 5. B.GOPINATHAN NAIR BUTLER/CARETAKER, GOVERNMENT GUEST HOUSE THRISSUR. 6. V.M.ABDUL SALAM BUTLER/CARETAKER, GOVERNMENT GUEST HOUSE PONMUDI. 7. JAYAKRISHNAN.A. BUTLER/CARETAKER, GOVERNMENT GUEST HOUSE KOZHIKODE. GOVERNMENT PLEADER FOR R1 TO 3 SRI. ANTONY MUKATH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 2197 of 2009 APPENDIX EXHIBITS EXT.P1- TRUE COPY OF THE RELEVANT PORTIONS OF THE SPECIAL RULES FOR THE KERALA TOURISM SUB ORDINATES SERVICES, 1995 EXT.P2- TRUE COPY OF THE G.O.(MS) DATED 9.5.1995 EXT.P3- TRUE COPY OF THE CERTIFICATE OF THE DEPARTMENT OF TECHNICAL EDUCATION DATED 18.7.04 EXT.P4- TRUE COPY OF THE G.O.(MS).214/05/GAD DATED 27.6.05 EXT.P5- TRUE COPY OF THE PROVISIONAL SENIORITY LIST EXT.P6- TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT DATED 7.8.07 EXT.P7- TRUE COPY OF THE ORDER NO.E3-3984/2008 DATED 8.8.08 EXT.P8- TRUE COPY OF THE PROMOTION ORDER NO.E4- 16885/06 DATED 4.11.08 OF THE 1ST RESPONDENT EXT.P9- TRUE COPY OF THE REPRESENTATION DATED 21.12.08 SUBMITTED TO THE 3RD RESPONDENT EXT.P10- TRUE COPY OF THE ORDER NO.E4- 19294/08 DATED 26.12.08 FROM THE 3RD RESPONDENT (TRUE COPY) P.A TO JUDGE ANTONY DOMINIC, J ------------------- W.P.(C).2197/2009 -------------------- Dated this the 6th day of July, 2010 JUDGMENT The challenge in this writ petition is against Ext.P8 order promoting respondents 4 to 7 to the post of Butler in the Tourism Department. Petitioner joined service on 13.12.1999 as Bungalow Matey. Ext.P4 order shows that the post of Waiter/Room Attendant and Bungalow Matey were re-designated as Hospitality Assistant. 2. According to the petitioner, as per Ext.P1 Special Rules, Hospitality Assistants are entitled to be considered for promotion to the post of Butler for which qualifications prescribed includes Craft Certificate in Restaurant and Counter Service from Government Food Craft Institute or any other qualification recognized by Government as equivalent. It is stated that by Ext.P2, Government have renamed the Certificate Course in Restaurant and Counter Service as Certificate Course in Food and Beverages Service. According to the petitioner, he possesses the W.P.(C).2197/09 2 qualification prescribed in Ext.P1 Special Rules and as he is in the feeder category of Hospitality Assistant, he is entitled to be considered for promotion to the post of Butler. 3. It is the case of the petitioner that respondents 4 to 7 do not possess the qualification prescribed for promotion to the post of Butler and that in spite of it, by Ext.P8, they were promoted to the post of Butler. Petitioner represented against Ext.P8 by filing Ext.P9. By Ext.P10 reply, he was informed that it was based on the seniority of employees in the category of Hospitality Assistant, promotion was ordered by Ext.P8 and that the petitioner will also be considered for promotion as and when his turn comes. It is in these circumstances, this writ petition has been filed contending that the promotion of respondents 4 to 7 is illegal and also praying to quash Exts.P8 and P10 orders. There is a further prayer to direct the respondents to make appointment to the post of Butler in terms of the Special Rules and to appoint the petitioner to one of the vacancies. W.P.(C).2197/09 3 4. Counter affidavit has been filed by the 1st respondent and although notice has been issued, there is no appearance on behalf of respondents 4 to 7. In the counter affidavit, insofar as the eligibility of respondents 4 to 7 are concerned, it is stated thus:- “The feeder category of Butler post is the posts included in the category of Hospitality Assistant. But seniors of the petitioner in the feeder category has not acquired Craft Certificate from Food Craft Institute. However considering their seniority in the feeder category and considering provisions contained in the Special Rules, Department of Tourism had promoted six Hospitality Assistants as Butlers. Action is being taken by the Department of Tourism for sending them for training at Food Craft Institute for acquiring qualification. It is true that the petitioner was fully qualified for promotion to the post of Butler while promoting his unqualified seniors. But Department had to consider seniority also in the feeder category.” W.P.(C).2197/09 4 5. From the above, it is obvious that respondents 4 to 7 were not qualified at the time when they were promoted by Ext.P8. Such promotion is absolutely illegal and could not have been ordered. The fact that they were to be send for training subsequently, will not also validate the promotion that was invalidly given to them. Therefore, promotion of respondents 4 to 7 necessarily has to be set aside and I do so. Writ petition is therefore, disposed of quashing Exts.P8 and P10 and directing that the petitioner be considered for promotion to any one of the vacancies to which respondents 4 to 7 were promoted by Ext.P8. Orders in this behalf shall be passed as expeditiously as possible, at any rate, within four weeks of production of a copy of this judgment. ANTONY DOMINIC, Judge mrcs