IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 5TH JANUARY 2011 / 15TH POUSHA 1932 WP(C).No. 10749 of 2008(D) --------------------------------------- PETITIONER(S): ----------------------- MADHAVAN E.K., S/O. KUTTAPPAN NAIR K., ATTENDER, SEVAMANDIR TEACHERS TRAINING INSTITUTE, RAMANATTUKARA, MALAPPURAM DISTRICT. BY ADV. SRI.K.P.SUDHEER RESPONDENT(S): -------------------------- 1. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DEPUTY DIRECTOR OF EDUCATION, MALAPPURAM. 3. THE DISTRICT EDUCATIONAL OFFICER, MALAPPURAM. 4. THE MANAGER, SEVAMANDIR TEACHERS TRAINING INSTITUTE, RAMANATTUKARA, PUTHUKODE, MALAPPURAM DISTRICT. 5. N.T.SUJESH, CLERK, SEVAMANDIR TEACHERS TRAINING INSTITUTE, RAMANATTUKARA, MALAPPURAM DISTRICT. R1 TO R3 BY GOVERNMENT PLEADER SRI.T.T.MUHAMOOD R4 BY ADV. SRI.T.R.RAVI SRI.P.S.MURALI SRI.T.R.RAVI SRI.P.S.MURALI R5 BY ADV. SRI.SAJU.S.A THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C) NO.10749/2008 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE SENIORITY LIST OF NON-TEACHERS BELONGED TO THE 4TH RESPONDENT'S SCHOOL AS ON 01/01/2006. P2 COPY OF THE ORDER DATED 9/10/2006 ISSUED BY THE 2ND RESPONDENT. P3 COPY OF THE GO NO.5336/2007/GEDN. DATED 22/11/2007 ISSUED BY GOVT. OF KERALA, GENERAL EDUCATION (D) DEPARTMENT. P4 COPY OF THE GO (P) 327/2002/GEDN. DATED 31/10/2002 ISSUED BY GOVT. OF KERALA, GENERAL EDUCATION (J) DEPARTMENT. P5 COPY OF THE APPEAL PETITION DATED 25/5/2006 SUBMITTED BY THE PETITIONER BEFORE THE DEPUTY DIRECTOR OF EDUCATION, MALAPPURAM. P6 COPY OF THE JUDGMENT DATED 9/7/2007 IN WP(C) NO. 20964/2007 PASSED BY THIS HON'BLE COURT. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A.TO.JUDGE sts T.R.RAMACHANDRAN NAIR,J. ------------------------------------- W.P.(C)No.10749 Of 2008 ----------------------------------------------------- DATED THIS THE 5th DAY OF JANUARY, 2011 J U D G M E N T The petitioner is aggrieved by the order passed by the Government Exhibit P3, whereby his claim for promotion was rejected and it was found that the 5th respondent is the valid claimant for the promoted post. 2. The petitioner claims promotion based on length of service. He commenced his service as Contingent Menial with effect from 1.12.1981 and continued upto 30.1.1985. Thereafter, he was again appointed with effect from 9.7.1990 and on 15.12.1991 he was appointed as a Full Time Menial. He acquired SSLC qualification in March, 2005. 3. The 5th respondent was appointed as an attender from 5.11.1999. The main contention raised by the petitioner is that going by the seniority list, the petitioner is senior to the 5th respondent and therefore, in the vacancy which arose on 1.4.2006 due to the death of one B.Ramakrishnan as Clerk, the petitioner should have been promoted. Actually, the petitioner was initially appointed as a Clerk; but the approval was refused W.P.(C)No.10749/08 -2- by the statutory authority and thereafter, the 5th respondent was appointed on 19.5.2006, as Clerk. 4. The reasoning adopted by the Government in Exhibit P3 is that going by the amendment to Explanation II of Rule 1 Chapter XXIV(A) of KER, while considering the claim for promotion to the post of Clerk, the feeder category includes attender, who should be given preference. Therefore, it is held that the 5th respondent is the rightful claimant. 5. The learned counsel for the petitioner submitted that as per Rule 7 of Chapter XXIV -B rules regarding appointment, probation, seniority, etc. contained in Chapter XIV-A are mutatis mutandis applicable in the matter of promotion to non-teaching staff also. If that be so, Rule 43 of Chapter XIV A will govern the matter and hence on the basis of seniority; ie; based on the length of service in the School , the petitioner is entitled for promotion. 6. The petitioner also challenges the validity of the amendment introduced as per Exhibit P4. 7. Explanation II to Rule 1 of Chapter XXIV-A reads as follows: W.P.(C)No.10749/08 -3- “The post of Lower Division Clerk shall be filled up by promotion of (attenders), Peons, Sweepers and other staff, if they possess the qualification prescribed for the post of Lower Division Clerk in sub-rule(1) or rule 2. If there are more than one claimant for appointment as Clerk under these categories preference shall be given in the order of (attenders) Peons, Sweepers and other staff. If there are more than one claimant under a particular category, the order of preference shall be according to the date of the first appointment. If the date of first appointment be the same, then preference shall be given with reference to age, the older being given first preference.” 8. Evidently, it specifies that post of LDC will have to be filled up in the order of preference provided therein ie; attenders, peons, sweepers and other staff. The second limb therein that when there are different claimants, the order of preference should be as provided therein clinches the issue against the petitioner. The learned counsel for the petitioner tried to distinguish the same by relying on Rule 43 of Chapter XIV A. Evidently the provisions of Rule 43 of Chapter XIV A provides that claim for promotion will have to be considered in terms of seniority. Explanation II to Rule 1 of Chapter XXIV A provides the feeder category for promotion to the post of Lower Division Clerk namely W.P.(C)No.10749/08 -4- attender, peon, sweeper and other staff if they have got the prescribed qualification for the post in question. There is nothing wrong in prescribing a feeder category for promotion. In that view of the matter, the challenge against amendment to Explanation II to Rule 1 of Chapter XXIV-A by which the attenders have been included before the category of peons cannot survive. If the relevant provisions of the Rules entitle a person in the category of full time menial to get promotion purely on the basis of seniority; i.e., based on length of service, the petitioner could have got a consideration. But herein, going by the feeder category provided, attenders are given specific preference. In that view of the matter, the order Exhibit P3 passed by the Government cannot be said to be illegal. Apart from that so fas as the post of full time menial is concerned, the qualification is good physique, whereas for the post of attenders, it is SSLC. It is pointed out by the learned Government Pleader that as far as full time menials are concerned, they are entitled for promotion as Peons also, which has been declared by this Court in Sasikumar v. State of Kerala (2008(4) KLT 35). 9. The learned counsel for the petitioner relied upon a decision of a learned Single Judge of this Court in K.J.Sulatha v. W.P.(C)No.10749/08 -5- State (1993(2) KLJ 370). In paragraph 6 of the judgment while interpreting the provisions of Chapter XIV-B as well as Chapter XIV-A this Court held that in the light of Rule 7 of Chapter XIV B, a qualified peon, sweeper or a member of other staff will be eligible for appointment as a Clerk. Evidently, therein this Court was considering the claims between a person working as a full time menial who aspires for promotion as LDC, and a fresh hand. In the said context, the above dictum was laid down by relying upon the judgment in Writ Appeal No.309/93. Herein the position is different. The claim between a full time menial and an attender who is covered by the feeder category provided in the Explanation II will have to abide by the order of preference provided therein. In that view of the matter the said decision may not help the case of the petitioner. For all these reasons, the petitioner is not entitled to succeed in the Writ Petition and the same is dismissed. No costs. Sd/-(T.R.RAMACHANDRAN NAIR, JUDGE). dsn