IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 18TH JULY 2008 / 27TH ASHADHA 1930 WP(C).No. 32934 of 2007(U) -------------------------- PETITIONER: ------------ K.RAVINDRAN, S/O.KOCHUCHERUKKAN, AGED 48 YEARS, WORKING AS ELECTRICIAN, MAHATMA GANDHI UNIVERSITY, KOTTAYAM, RESIDING AT KOTTAPURATHU HOUSE, OLAKETTIYAMBALAM P.O. MAVELIKKARA, ALAPPUZHA DISTRICT. BY ADV. SRI.P.B.SURESH KUMAR SRI.LEO GEORGE RESPONDENTS: ------------- 1. MAHATMA GANDHI UNIVERSITY, REPRESENTED BY ITS REGISTRAR, MAHATMA GANDHI UNIVERSITY, PRIYADARSINI HILLS, KOTTAYAM. 2. REGISTRAR, MAHATMA GANDHI UNIVERSITY, PRIYADARSINI HILLS, KOTTAYAM. 3. P.KRISHNAKUMAR, OVERSEER GRADE II (ELECTRICAL), ENGINEERING UNIT, MAHATMA GANDHI UNIVERSITY, PRIYADARSINI HILLS, KOTTAYAM. BY ADV. SRI. T.A. SHAJI, SC, M.G.UNIVERSITY FOR R1,2 BY ADV. SRI.P.RAMAKRISHNAN FOR R3 BY G.P. SMT. T.B.REMANY THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE ORDER ISSUED BY THE SECOND RESPONDENT DATED 5.6.99 EXT.P2 TRUE COPY OF THEORDER ISSUED BY THE SECOND RESPONDENT DATED 20.1.2005 EXT.P3 TRUE COPY OF THE SENIORITY LIST OF THE TECHNICAL STAFF IN THE ENGINEERING UNIT OF THE UNIVERSITY PUBLISHED ON 3.1.2007 EXT.P4 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO THE SECOND RESPONDENT DATED 20.3.2007 EXT.P5 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO THE SECOND RESPONDENT DATED 9.4.2007 EXT.P6 TRUE COPY OF THE MEMO ISSUED TO THE PETITIONER BY THE SECOND RESPONDENT DATED 13.6.2007 //TRUE COPY// “C.R.” K.T. SANKARAN,J. -------------------------------------- W.P.(C) No.32934 of 2007 U -------------------------------------- Dated this the 18th day of July, 2008. J U D G M E N T The petitioner is working as Electrician in the Engineering Unit of Mahatma Gandhi University (hereinafter referred to as “University”). The third respondent is working as Overseer Grade II(Electrical) in the Engineering Unit of the University. 2. The dispute involved in this Writ Petition centers round the method by which the promotion to the post of Overseer Grade I (Electrical) should be made. As per Ext.P1 order dated 5.6.1999 issued by the University, ratio of 1:1 was provided for promotion from among Overseers Grade II(Electrical) and Electricians. The relevant portion of Ext.P1 order reads as follows:- “This office consequent to the decision of the Syndicate vide paper (1) read above, created 3 posts of Grade I Overseers (Electrical) to be filled by promotion from among Overseers Grade II (Electrical) and Electricians in the ratio of 1:1 on the basis of seniority.” WP(C) No.32934/2007 2 3. It is an admitted case that in the year 1999, for the purpose of filling up the three posts of Overseers Grade I (Electrical), no one from among the category of Overseer Grade II(Electrical) was available and the three posts were filled up by promoting Electricians. It is also an admitted case and it is clear from Ext.P3 provisional seniority list that on 20.1.2005, one Shri Pratap P.Thankappan was promoted as Overseer Grade I (Electrical) while working as Overseer Grade II (Electrical). According to the learned counsel for the petitioner, this was following the ratio as provided in Ext.P1 University Order dated 5.6.1999. Now a vacancy of Overseer Grade I (Electrical) exists. According to the petitioner, that vacancy is to be filled up from among the Electricians; and admittedly the petitioner being the senior-most Electrician, he is entitled to be promoted as Overseer Grade I (Electrical). According to the third respondent, the ratio is to be decided not on the basis of the vacancies to be filled up for the present, but on the basis of the cadre strength. The learned counsel for the third respondent submits that three Electricians having been promoted in the year 1999 as Overseer Grade I (Electrical), the vacancy which exists now is to be filled up by promoting an Overseer Grade II (Electrical) and not by promoting an Electrician. If an Overseer Grade II (Electrical) is to be promoted as contended by the third respondent, he should get the promotion as he is the senior-most person in that category. On a representation made by the petitioner on 9.4.2007 to the University, the University issued Ext.P6 memo dated 13.6.2007 which reads as follows:- WP(C) No.32934/2007 3 “With reference to the subject cited, Sri. Ravindran, K., Electrician is informed that the Legal Advisor, Mahatma Gandhi University has clarified that the promotion to the post of Overseer Grade I should be made as per the existing U.O. In this regard cited (1) above. As per this U.O., the posts of Overseer Grade I (Electrical) are to be filled by promotion from among Overseer Grade II and electrician in the ratio 1:1 on the basis of seniority. Three Electricians and one Overseer Grade II (Electrical) were promoted as Overseer Grade I (Electrical) till date. So the next vacancies in the post of Overseer Grade I (Electrical) must be filled by promoting the eligible Overseer Grade II (Electrical) till the post of Overseer Grade II (Electrical) attain the strength for maintaining the ratio as per the U.O. Cited (1) above.” 4. In the counter affidavit filed by respondents 1 and 2, it is stated that the ratio 1:1 was fixed by the Syndicate not for the purpose of appointment, but for promotion as Overseer Grade I (Electrical) from among Overseers Grade II (Electrical) and Electricians. It is also stated that Shri Pratap P.Thankappan was appointed following the ratio 1:1 as mentioned in Ext.P1 University Order. According to the University, by the appointment of Shri Pratap P.Thankappan, the ratio has not been fully satisfied. It is made clear in paragraph 7 of the counter affidavit that two more posts of Overseer Grade I WP(C) No.32934/2007 4 (Electrical) have to be filled from Overseer Grade II (Electrical) to maintain the ratio of 1:1. The stand taken by the University is that in the next arising vacancy of Overseer Grade I (Electrical), the third respondent is entitled to be promoted. 5. Learned counsel for the petitioner relied on the decisions of the Supreme Court in Paramjit Singh Sandhu v. Ram Rakha Mal ((1982) 3 SCC 191) and Direct Recruit Class II Engineering Officers' Association v. State of Maharashtra and others ((1990) 2 SCC 715). In (1982) 3 SCC 191, the Supreme Court held thus - “............What this Court meant while saying that when a quota rule is prescribed for recruitment to a cadre it meant that quota should be co-related to the vacancies which are to be filled in. Who retired and from what source he was recruited may not be very relevant because retirement from service may not follow the quota rule. Promotees who come to the service at an advanced age may retire early and direct recruits who enter the service at a comparatively young age may continue for a long time. If, therefore, in a given year larger number of promotees retire and every time the vacancy is filled in by referring to the source from which the retiring person was recruited it would substantially disturb the quota rule itself. Therefore, while making recruitment quota rule WP(C) No.32934/2007 5 is required to be strictly adhered to. That was what was meant by this Court when it said : (SCC p.486, para 14: SCC (L&S) p.318) The quota rule would apply to vacancies and recruitment has to be made keeping in view the vacancies available to the two sources according to the quota. The quota in the present case is 4:1 that is, four promotees to one direct recruit. Therefore, whenever vacancies occur in the service the appointing authority has to go on recruiting according to quota. In other words, whenever vacancies occur, first recruit four promotees irrespective of the factors or circumstances causing the vacancies and as soon as four promotees are recruited bring in a direct recruit. That was what was meant by this Court when it said that a roster has to be introduced and this roster must continue while giving confirmation.............” In (1990) 2 SCC 715, while summing up the judgment, the Supreme Court stated thus - “(C) When appointments are made from more than one source, it is permissible to fix the ratio for recruitment from WP(C) No.32934/2007 6 the different sources, and if rules are framed in this regard they must ordinarily be followed strictly. (D) If it becomes impossible to adhere to the existing quota rule, it should be substituted by an appropriate rule to meet the needs of the situation. In case, however, the quota rule is not followed continuously for a number of years because it was impossible to do so the inference is irresistible that the quota rule had broken down. (E) Where the quota rule has broken down and the appointments are made from one source in excess of the quota, but are made after following the procedure prescribed by the rules for the appointment, the appointees should not be pushed down below the appointees from the other source inducted in the service at a later date.” 6. The learned standing counsel for the University submitted that Note 3 to Rule 5 of Part II of Kerala State & Subordinate Services Rules, 1958 would apply in the case on hand. Rule 5 of Part II of the Kerala State & Subordinate Services Rules, 1958 along with Notes is extracted below for easy reference:- WP(C) No.32934/2007 7 “5. Method of recruitment.- Where the normal method of recruitment to any service, class or category is neither solely by direct recruitment nor solely by transfer, but is both by direct recruitment and by transfer - (a) the proportion or order in which the Special Rules concerned may require vacancies to be filled by persons recruited direct and by those recruited by transfer shall be applicable only to substantive vacancies in the permanent cadre; (b) a person shall be recruited direct only against a substantive vacancy in such permanent cadre, and only if the vacancy is one which should be filled by a direct recruit under the Special Rules referred to in clause (a); and (c) recruitment to all other vacancies shall be made by transfer. Note.- (1) All permanent vacancies and temporary vacancies except those of short duration shall be treated as substantive vacancies. WP(C) No.32934/2007 8 (2) Leave vacancies and vacancies of less than 6 months' duration shall be treated as vacancies of short duration. (3) Whenever a ratio or percentage is fixed for different methods of recruitment/appointment to a post the number of vacancies to be filled up by candidates from each method shall be decided by applying the fixed ratio or percentage to the cadre strength of the post to which the recruitment/transfer is made and not to the vacancies existing at that time.” 7. On a careful consideration of Note 3 to Rule 5 of Part II of the Kerala State & Subordinate Services Rules, 1958, I am of the view that Note 3 to Rule 5 of Part II of the Kerala State & Subordinate Services Rules, 1958 would apply only when a ratio or percentage is fixed for different methods of recruitment/appointment to a post. In the present case, there is only one method of recruitment/appointment. Different methods of recruitment may arise as mentioned in Rule 5, i,.e., by direct recruitment or by transfer, etc. In the present case, the promotion is from the category of Overseer Grade II (Electrical) and from the category of Electrician. A ratio is fixed, as per Ext.P1, as 1:1. Note 3 to Rule 5 of Kerala State & Subordinate Services Rules, 1958 would have no application to such a situation. The ratio is to be followed in respect of the vacancies as they exist. There is nothing in Ext.P1 or any other rule, which WP(C) No.32934/2007 9 would indicate that the cadre strength is to be taken into account while applying the ratio. Therefore, I am inclined to accept the contention put forward by the petitioner, on the basis of the principles laid down by the Supreme Court in the decisions aforesaid. The petitioner being a senior-most Electrician, by applying the 1:1 ratio, he is entitled to be promoted as Overseer Grade I (Electrical), since on the earlier occasion Overseer Grade II(Electrical) was promoted as Overseer Grade I (Electrical). For the aforesaid reasons, the Writ Petition is allowed. Ext.P6 memo dated 13.6.2007 is quashed. Respondents 1 and 2 shall make the promotion to the post of Overseer Grade I (Electrical) on the basis of the aforesaid findings. K.T. SANKARAN, JUDGE. cks