IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 4TH NOVEMBER 2011 / 13TH KARTHIKA 1933 WP(C).No. 8698 of 2011(J) -------------------------------- PETITIONER(S): ------------------- THOMAS ULLAHEL L.D.STORE KEEPER ST.JOSEPH'COLLEGE,DEVAGIRI CALICUT-673008 BY ADV. SRI.JOSHI N.THOMAS RESPONDENT(S): --------------------- 1. STATE OF KERALA,REPRESENTED BY IT'S PRINCIPAL SECRETARY TO GEVERNMENT HIGHER EDUCATION DEPARTMENT,SECRETARIAT, THIRUVANANTHAPURAM-695001. 2. DIRECTOR OF COLLEGIATE EDUCATION VIKAS BHAVAN,P.M.G.JUNCTION THIRUVANANTHAPURAM-695003 3. THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION CALICUT-673001 4. THE PRINCIPAL,ST.JOSEPH' COLLEGE DEVAGIRI, CALICUT-673008. 5. THE MANAGER, ST.JOSEPH'S COLLEGE,DEVAGIRI, CALICUT-673008. R1 TO R3 BY GOVERNMENT PLEADER SMT. M.T. SHEEBA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs W.P.(C). NO. 8698/2011 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF ORDER NO.G2/ESST.NTS/10/2010 DATED 01/04/2010 ISSUED BY THE 5TH RESPONDENT. P2: COPY OF PAY FIXATION STATEMENT AND ASSUMPTION OF DUTY DATED 01/04/2010 ISSUED BY THE 4TH RESPONDENT. P3: COPY OF THE LETTER NO.ESTT./NTS/TUY/2762/10 DATED 21/10/2010 ADDRESSED TO 2ND RESPONDENT BY THE 4TH RESPONDENT. P4: COPY OF LETTER ES-60420/CELL EDN. DATED 13/03/2009 CONTAINING CATEGORY WISE SENIORITY LIST OF NON-TEACHING STAFF OF 4TH RESPONDENT COLLEGE ISSUED BY THE 5TH RESPONDENT. P5: COPY OF LETTER NO.ESTT.E1-45914/88/CELL-EDN. DATED 27/10/89 ISSUED BY THE 2ND RESPONDENT. P6: COPY OF ORDER NO.E3/50843/2010.COLL EDN. DEPT. DATED 23/01/2011 ISSUED BY THE 2ND RESPONDENT. P7: COPY OF ORDER NO.E3/50420/08/COLL EDN. DATED 13/03/2009 ISSUED BY THE 2ND RESPONDENT. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A. TO JUDGE. svs T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.8698 of 2011-J - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 4th day of November, 2011. JUDGMENT The petitioner who has been appointed as L.D. Storekeeper in the fourth respondent College, is aggrieved by Ext.P6 proceedings of the Director of Collegiate Education, refusing to approve the promotion on the plea that one Typist is functioning in the College in a supernumerary capacity. 2. The initial appointment of the petitioner is as a Last Grade Servant on 18.9.1989. He was promoted as Library Assistant with effect from 1.6.1996 which was approved by the second respondent as per Order No.Estt/83/11880/97(1) dated 17.4.1997. Ext.P1 shows that the promotion of the petitioner as L.D. Store-keeper is in the vacancy of one Shri T.L. Louis, L.D. Store-keeper as U.D. Clerk with effect from 1.4.2010. 3. What is projected in Ext.P6 as a reason for non approval, as already noticed, is that in the College one post of Typist alone is sanctioned as per the staff pattern and in terms of the seniority list dated 1.4.2010 two persons are working as Typists. The post of Typist is included in Group 5 in G.O.(MS) No.50/08 dated 9.5.2008 and therefore the vacancy which has wpc 8698/2011 2 arisen in a clerical post in the same group cannot be filled up by promotion. Learned counsel for the petitioner submitted that the post of L.D. Store Keeper has not been included in Group 5. It is different from the post of L.D. Clerk. It is therefore submitted that the assumption made in Ext.P6 cannot be supported. 4. In the counter affidavits filed on behalf of respondents 1 and 3, justification has been sought for passing the order Ext.P6. It is pointed out in the counter affidavit of the third respondent that the number of clerical posts sanctioned in the College are 6 and that of Typist is only one. The post of Typist is included in the fifth group. As one Typist is working as supernumerary, the petitioner is not entitled for promotion. 5. In the counter affidavit filed by the first respondent, reference is made to G.O.(Ms) No.56/2010 dated 6.3.2010 classifying various posts. Reliance is also placed on G.O.(MS) No.119/2004/H.Edn. dated 17.9.2004 which stipulates that no fresh recruitment shall be made if any surplus staff is found supernumerary. 6. The petitioner has produced Ext.P7 proceedings dated 13.3.2009 fixing the staff pattern for the College. Serial Nos.5 and 6 in the internal page 2 are respectively the post of Clerk and Store Keeper and the posts sanctioned are respectively 5 and 1. The number of employees working as wpc 8698/2011 3 on 1.11.2003 were 11. The Principal's certificate produced by the petitioner as Ext.P8 shows that six persons have retired between 1.11.2003 and 31.3.2010 and as a result of it there is no supernumerary hands working as Clerk/Store Keeper as on 1.4.2010. In fact, the respondents have also no such case also and what is pointed out is that there is a typist working as supernumerary. 7. The crucial question therefore is whether the post of L.D. Store Keeper has been grouped along with the post of Typist. The two Government Orders, viz. G.O.(MS) No.50/2008 dated 9.5.2008 and G.O. (MS) NO.46/2010 dated 6.3.2010 have been placed for perusal. The first order, viz. the order dated 9.5.2008 classifies the non teaching post in different groups. Group 5 therein is reproduced below: “Group 5 L.D. Clerk, U.D. Clerk, Head Accountant, Junior Superintendent, Senior Superintendent, Administrative Assistant.” Evidently, the post of L.D Store-keeper is not included therein. The post of Library Assistant is included in Group 1 along with the post of Peon, Sweeper, etc. The said order is modified by G.O.(MS) No.46/10/G\H.Edn. dated 6.3.2010 stating that the post of Typist has not been included in any group and the same is therefore included along with group 5 which includes wpc 8698/2011 4 the posts of L.D.C., U.D.C., Head Accountant, Junior Superintendent, Senior Superintendent and Administrative Assistant. Therefore, the said order is issued in modification of the earlier one, to that extent alone. 8. In G.O.(MS) No.50/2008 dated 9.5.2008 the post of L.D. Storekeeper is not included in any group. The post of Typist was also not included in any Group. By G.O.(MS) No.46/2010 dated 6.3.2010 the post of Typist alone is included in group 5. Significantly, the post of L.D. Storekeeper is not included in group 5. 9. Under Chapter 3 of the Calicut University First Statutes, 1979, Statute 41 provides for the qualifications for appointment to various categories of non-teaching staff in private colleges. Serial No.5 is L.D.C./L.D. Store-keepers/L.D. Accountants. The qualification is SSLC or equivalent qualification and with a pass in the Manual of Office procedure for earning the third increment. In the first proviso, it is stipulated that “the non-clerical staff, i.e. Library/Laboratory Assistants and Peons including technical staff like Gas man, Specimen Collectors, etc. who are matriculates and who are either in regular permanent service or have pout in 3 years of service as on 31.03.1971 are eligible for appointment in the order of their seniority as L.D. Clerks.” Learned Government Pleader submitted that since the posts of LDC/LD Store-keepers/L.D. Accountants are wpc 8698/2011 5 included as serial No.5 in Statute 41, it can be seen that they have been grouped together. Evidently, the said posts have been shown together therein only to mention about the qualifications for appointment and not for any other purpose. It is clear that the Library Assistants having the qualifications could get promotion as L.D. Store-keeper also. 10. As regards the grouping for the purpose of filling up of the existing vacancies, they are exclusively governed by the Government Orders dated 9.5.2008 and 6.3.2010. As already noticed, group 5 does not include the post of L.D. Store-keeper. Even in the amendment made, only the inclusion of typist category in the said group alone is seen. 11. In that view of the matter, it can be seen that the post of L.D. Store-keeper is not included among group 5. Thus, the objection that a Lower Division Typist is working in supernumerary category, cannot be one which could be raised to deny the approval of appointment of the petitioner. Even in the order Ext.P7 fixing the staff pattern, the post of Clerk is serial No.5 and Store-keeper is serial No.6. They are separately shown as different posts altogether. 12. For all these reasons, the petitioner is entitled to succeed in the writ petition. Therefore, Ext.P6 is quashed. It is declared that the petitioner is entitled for approval of his promotion as L.D. Store-keeper. There will be wpc 8698/2011 6 a direction to the second respondent to pass appropriate orders approving the promotion of the petitioner, within a period of two months from the date of receipt of a copy of this judgment and the petitioner will be entitled for the consequential monetary benefits also. The writ petition is allowed as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/