IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 25TH MARCH 2008 / 5TH CHAITHRA 1930 OP.No. 9822 of 2003(T) ---------------------- PETITIONER: ------------ D.VARGHESE, KIZHAKKE THERIVILA VEEDU, THIRUPURAM P.O., NEYYATTINKARA, THIRUVANANTHAPURAM DISTRICT. BY ADV. SRI.D.SOMASUNDARAM RESPONDENTS: ------------- 1. THE DIRECTOR OF COLLEGIATE EDUCATION, THIRUVANANTHAPURAM. 2. THE MANAGER, CHRISTIAN COLLEGE, KATTAKKADA, KATTAKKADA P.O., THIRUVANANTHAPURAM. BY ADV. SRI.SASTHAMANGALAM S. AJITHKUMAR SRI.SUMAN CHAKRAVARTHY GOVT. PLEADER SMT. M.R. SREELATHA THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 25/03/2008, ALONG WITH WPC NO. 15596 OF 2005 THE COURT ON THE SAME DAY, DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: O.P.NO. 9822/2003. --------------------------------------------------------------- EXT.P1 TRUE COPY OF PROMOTION ORDER DT. 28-3-2000. EXT.P2 JUDGMENT IN O.P.NO. 30181/2001. EXT.P3 ORDER DT. 6-9-2002. EXT.P4 ORDER DT. 27-1-2003 IN C.M.P.49945/2002 IN O.P.29445/2002. EXT.P5 REPRESENTATION DT. 20-2-2003. EXT.P6 REPRESENTATION DT. 5-2-2003. EXT.P7 LETTER DT. 19-6-2001. EXT.P8 ORDER OF R2. EXT.P9 ORDER DT. 1-8-1995. RESPONDENTS' EXHIBITS: ------------------------------------- EXT.R2(a) LETTER DT. 15-12-2000. EXT.R2(b) PROCEEDINGS DT. 23-7-2001. EXT.R2(c) DO. DT. 15-7-2002. EXT.R2(d) ORDER DT. 26-7-2002. EXT.R2(e) TRUE COPY OF STATEMENT. EXT.R2(f) PROMOTION ORDER DT. 1-12-2000. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= O.P. No. 9822 of 2003 and W. P (C) No. 15596 of 2005 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 25th March, 2008. J U D G M E N T These two cases bring up the issue of competing claims between the petitioners in the two cases for promotion to the post of L.D. Clerk in the Christian College, Kattakkada, an aided private college, in the vacancy which arose on 28-3-2000. Originally, the petitioner in O.P.No. 9822/2003, who was a Peon in the college, was promoted by Ext. P1 order dated 28-3-2000 in that original petition. Before the appointment was approved, he was suspended from service. While he was under suspension, the petitioner in W.P(C) No. 15596/2005, a Gardener in the college, was promoted to the said vacancy. That appointment was rejected by the Director of Collegiate Education on the ground that the post of Gardner is not a feeder category for promotion to the post of L.D. Clerk. Subsequently, the suspension of the petitioner in O.P.No. 9822/2003 was revoked. But, he was reinstated only as a Peon. Therefore, the petitioner in O.P.No. 9822/2003 has filed that original petition seeking a direction to the respondents to allow the petitioner to rejoin duty as L.D. Clerk and to function as such on the basis of his original appointment. 2. Against the order refusing approval of promotion of the petitioner in W.P(C) No. 15596/2005, he filed O.P.No. 29445/2002. That original petition was disposed of by a learned Single Judge of this Court directing the Director of Collegiate Education to re-consider the matter in the light of two orders, whereby Gardeners were actually given promotion as L.D. Clerk in other similar aided private colleges. Pursuant thereto, by Ext. P8 order in that writ petition, the Director of Collegiate Education again refused to grant approval of the petitioner in W.P(C) No. 15596/2005 giving the reasoning that as O.P.9822/2003 & W.P.C. 15596/2005 -: 2 :- per Government letter No. 30517/D3/97/H.Edn. dated 24.11.1998, Gardener can be considered for promotion to other higher posts when no other eligible candidate for promotion as L.D. Clerk is available and since the petitioner in O.P.No. 9822/2003 who joined as last grade staff on 1-2-1997 was available, the petitioner who was only a Gardener cannot be given promotion. In W.P(C) No. 15596/2005, the petitioner is challenging that order on the ground that as per the Kerala University First Statutes, 1979, last grade staff are included as feeder category for the post of L.D. Clerk. The petitioner would point out that the Special Rules for the Kerala Last Grade Service enumerate Gardener as Category No. IV and therefore Gardener is a last grade servant. The petitioner therefore submits that Ext. P8 order is patently wrong in so far as, as per the recruitment rules applicable, the post of Gardener is also a feeder category for the post of L.D. Clerk and the petitioner in W.P(C) No. 15596/2005 being senior to the petitioner in O.P.No. 9822/2003 among last grade staff, he is entitled to be preferred to the petitioner in O.P.No. 9822/2003 for promotion as L.D. Clerk. 3. In answer to these contentions, the petitioner in O.P.No. 9822/2003 would contend that the University Statute do not recognise the post of Gardener in any aided private school and therefore the petitioner in W.P(C) No. 15596/2005 is not eligible to be considered for promotion to the post of L.D. Clerk at all. 10. I have considered the rival contentions in detail. 11. As per the Kerala University First Statutes, 1979 relating to conditions of service of members of non-teaching staff of private colleges, the post of L.D. Clerk is to be filled up from among non- clerical staff like Library/Laboratory Assistants, Gasman/Specimen Collector and last grade staff who have 5 years' service with S.S.L.C O.P.9822/2003 & W.P.C. 15596/2005 -: 3 :- who have passed clerical test conducted by the Public Service Commission, on the basis of common seniority in the lower cadre. Under the Kerala Government Service, as per the Special Rules for the Kerala Last Grade Service, the post of Gardener is also included as category IV of last grade servants. In fact, the existence of Gardeners in private colleges is not disputed by the Director of Collegiate Education in the order impugned in W.P(C) No. 15596/2005. More over, that order recognises the right of a Gardener for promotion to higher post when no other eligible candidate for promotion to the post of L.D. Clerk is available. More over, that order refers to a Government letter, which recognises promotion of Gardener in the absence of other eligible category candidates. Further, it is not disputed before me that the petitioner in W.P(C) No. 15596/2005 is being paid salary by the Government in the post of Gardener. In view of the above circumstances, I am not inclined to accept the contention of the petitioner in O.P.No. 9822/2003 that there is no post of Gardener existing in an aided private college. Therefore, Ext. P8 order of the Director of Collegiate Education in W.P(C) No. 15596/2005 is clearly unsustainable in so far as the Kerala University First Statutes do prescribe that last grade staff is a feeder category to the post of L.D. Clerk and going by the categorisation in the Special Rules for Kerala Last Grade Service, the post of Gardener is included in the last grade staff, which categorisation can safely be accepted for the present purpose. The petitioner has produced Ext. P9 seniority list, which is not disputed by the petitioner in O.P.No. 9822/2005 wherein, admittedly, the petitioner in W.P(C) No. 15596/2005 is senior to the petitioner in O.P.No. 9822/2003. The Special Rules stipulate that the promotion shall be on the basis of common seniority in the lower cardre. In the common seniority O.P.9822/2003 & W.P.C. 15596/2005 -: 4 :- among last grade servants, the petitioner in W.P(C) No. 15596/2005 is clearly senior to the petitioner in O.P.No. 9822/2003. Therefore, he is eligible to be promoted to the post of L.D. Clerk in preference to the petitioner in O.P.No. 9822/2003. Accordingly, Ext. P8 in W.P(C) No. 15596/2005 is quashed. It is declared that the petitioner in W.P(C) No. 15596/2005 is entitled to be promoted to the post of L.D. Clerk in preference to the petitioner in O.P.No. 9822/2003, who is also the 4th respondent in W.P(C) No. 15596/2005. Appropriate orders in this regard shall be issued by the 1st respondent and arrears of salary disbursed to the petitioner in W.P(C) No. 15596/2005 within a period of two months from the date of receipt of a copy of this judgment. The petitioner in W.P(C) No. 15596/2005 raises the contention that the petitioner in O.P.No. 9822/2003 does not possess the qualification of SSLC and 5 years' service prescribed for the post of L.D. Clerk. I have not considered the same since I have accepted his other contentions, which are sufficient to grant him relief. That contention is left open to be agitated if necessity arises in future. Consequently, O.P.No. 9822/2003 is dismissed. Sd/- S. Siri Jagan, Judge. Tds/