IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR FRIDAY, THE 11TH APRIL 2008 / 22ND CHAITHRA 1930 WP(C).No. 29920 of 2005(J) -------------------------- PETITIONER: ------------ VINOD. P., LECTURER (SENIOR SCALE) IN CIVIL ENGINEERING, COLLEGE OF ENGINEERING, THIRUVANANTHAPURAM. BY ADV. SRI.P.GOPAL RESPONDENTS: ------------- 1. THE STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF TECHNICAL EDUCATION OFFICE OF THE DIRECTOR OF TECHNICAL EDUCATION, THIRUVANANTHAPURAM. 3. THE PRINCIPAL SECRETARY, HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER MR.P.A.SALIM THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/04/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC 29920 OF 2005 APPENDIX PETITIONER'S EXHIBITS : EXT.P1 TRUE COPY OF THE GO(P)NO.81/90/H.EDN. DT.27.3.1990 EXT.P2 TRUE COPY OF THE GO(MS)NO.20/2003/H.EDN.DT.19.3.2003 EXT.P3 TRUE COPY OF THE REPRESENTATION DT.12.5.2003 OF THE PETITIONER SUBMITTED TO THE 3RD RESPONDENT EXT.P4 TRUE COPY OF THE LETTER OF THE DIRECTOR OF TECHNICAL EDUCATION OBTAINED BY THE PETITIONER ON APPLICATION GIVEN UNDER RI ACT TRUE COPY PA TO JUDGE K.BALAKRISHNAN NAIR, J. -------------------------------------------------------------------------------- Writ Petition (C) No.29920 of 2005-J -------------------------------------------------------------------------------- Judgment The petitioner was working as a Lecturer (Senior Scale) in Civil Engineering in the Department of Technical Education. While so, two vacancies in the post of Assistant Professor in Civil Engineering arose on 26.10.2002 and one vacancy on 01.01.2003. The DPC which met, considered the claims of the incumbents in the feeder category and published Ext.P2 list dated 19.03.2003. The petitioner was rank no.3 in that list. The persons ranked 1 and 2 were already promoted. Though a third vacancy was available, the petitioner was not promoted as Assistant Professor. In the above background, this Writ Petition was filed seeking a writ of mandamus to the Government to promote him as Assistant Professor w.e.f. 01.01.2003. 2. The Government have filed a counter affidavit in which it is submitted that the DPC again met on 23.04.2003 and decided to review the inclusion of the petitioner in the DPC list. But, no further proceedings like issuance of notice to him etc. took place. It is also submitted that the claim of one WPC 29920/05 2 Dr.Sheela Evangeline, who was a Lecturer in Civil Engineering was not considered for promotion as Assistant Professor. She is admittedly senior to the petitioner. Her claim was not considered because in the column concerning qualification in the seniority list, she was shown as a B.Tech. Degree holder. At the relevant time, she was on leave without allowance for study purposes granted under Rule 91A of Part I KSR. When she returned after the completion of the course, she represented about the mistake in the qualification shown in the seniority list. She submitted that she was an M.Tech. degree holder from 1995. In view of the said representation, when a temporary vacancy arose in the post of Assistant Professor, she was promoted provisionally under Rule 31(a) of Part II KS & SSR by GO dated 02.11.2005 in preference to the petitioner. It is also submitted that her claim was not considered for promotion as she was on leave without allowance for study purposes. In fact, the said leave was not a disqualification for considering her for promotion. That aspect was overlooked. The Technical Education Service Rules were amended with effect from 24.01.2003 and based on the amended Rules, the petitioner's claim was considered and he was promoted as Assistant Professor by GO dated 11.09.2006 based on the DPC list published on WPC 29920/05 3 27.12.2005. Since there was a decision of the DPC to exclude the petitioner and as the DPC never met thereafter, before the amendment of the Rules, the petitioner was not promoted based on Ext.P2 list, it is submitted. The petitioner has filed a reply affidavit and along with that, he has produced Ext.P4 communication of the Director of Collegiate Education dated 26.12.2003 recommending to promote the petitioner. 3. Heard the learned counsel on both sides. Since there was a qualified senior available, the petitioner cannot claim promotion with effect from 01.01.2003 unless she was suffering from some intervening disqualification on that date. The petitioner was already included in Ext.P2 DPC list. Later, it was decided to exclude him. In view of the above circumstances, the DPC is directed to afford an opportunity of being heard to the petitioner and also the above said Dr.Sheela Evangeline and take a decision as to who is eligible to be promoted to the vacancy which arose w.e.f. 01.01.2003. This, the DPC shall do within three months from the date of receipt of a copy of this judgment. If the petitioner is found eligible to be promoted in preference to Dr.Sheela Evangeline, he shall be promoted with retrospective effect from 01.01.2003 and the benefits payable in accordance with law shall also be released to him. WPC 29920/05 4 The Writ Petition is allowed as above. 11.04.2008 K.BALAKRISHNAN NAIR,JUDGE sta