IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 15TH OCTOBER 2009 / 23RD ASWINA 1931 WP(C).No. 37883 of 2007(I) ------------------------------------ PETITIONER(S): ------------------------ CHERIYAN POULOSE.M., S/O.M.C.POULOSE, AGED 50 YRS, MASTER DRILLER, (HIGHER GRADE), GROUND WATER DEPARTMENT, DISTRICT OFFICE, KOTTAYAM. BY ADVS.MR.V.R.KESAVA KAIMAL MR.N.M.MADHU RESPONDENT(S): ------------------------- 1. THE PRINCIPAL SECRETARY TO GOVERNMENT, WATER RESOURCES (G.W) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR, GROUND WATER DEPARTMENT, JALAVINJANA BHAVAN, AMBALAMUKKU, KAVADIYAR, THIRUVANANTHAPURAM. GOVERNMENT PLEADER MR.T.K.ARAVINDAKUMAR BABU THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.37883/2007 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE FINAL SENIORITY LIST OF MASTER DRILLERS IN THE GROUND WATER DEPARTMENT AS ON 1.6.05. P2:- COPY OF THE FINAL SENIORITY LIST OF MASTER DRILLERS IN THE GROUND WATER DEPARTMENT AS ON 1.6.05. P2:- COPY OF THE RELEVANT PAGES OF THE SPECIAL RULES DTD. 30.7.93 SHOWING THE CONDITIONS OF PROMOTION TO THE POST OF ASST. ENGINEER. P3:- COPY OF THE ORDER DTD. 6.12.06. P4:- COPY OF THE JUDGMENT DTD. 20.9.07 IN WPC. NO.23184/07. P5:- COPY OF THE REPLY DTD. 24.10.07. P6:- COPY OF THE ORDER DTD. 27.2.08. P7:- COPY OF THE APPLICATION DTD. 22.6.09. P8:- COPY OF THE REPLY DTD. 23.7.09. P9:- COPY OF THE ORDER DTD. 28.4.09. TRUE COPY P.A. TO JUDGE tss ANTONY DOMINIC, J. ================ W.P.(C) NO. 37883 OF 2007 (I) ===================== Dated this the 15th day of October, 2009 J U D G M E N T Petitioner is a Certificate holder in Mechanical Engineering. He was appointed in the Water Resources Department as a Drilling Assistant on 15/10/1979 and was posted as Driller w.e.f. 10/6/80. He was promoted as Senior Driller w.e.f. 20/4/83 and as Master Driller from 17/10/85. According to the petitioner, he is now conferred Higher Grade as well. 2. Petitioner claims that he is eligible for promotion to the post of Assistant Engineer and in terms of Ext.P2 Special Rules introduced w.e.f. 30th of July 93, ITI holders like him, having rendered six years of service as Master Driller, are eligible for promotion in the ratio of 6:3:1 between Graduate, Diploma Holders and ITI holders respectively. Petitioner points out that by Ext.P3 order issued on 6/12/06, 4 certificate holders like him, who are all his seniors, were temporarily promoted as Assistant Engineers. According to him, at the time when Ext.P3 was issued, 7 vacancies were available and that he was the next one to be promoted. His case is that it was due to political rivalry that he WPC 37883/07 :2 : was left out. 3. He filed writ petition at that stage as WP(C) NO.23184/07 resulting in Ext.P4 judgment directing consideration of his claims. Accordingly, Ext.P5 order was issued informing him that the persons who were promoted by Ext.P3 are all his seniors and that there were only four vacancies. It was thereupon that this writ petition is filed. 4. Subsequently along with IA No.7261/08, petitioner has produced Ext.P6 to indicate that vacancies are still available. Again, along with IA No.9796/09, petitioner has produced Exts.P7 and P8 application made under the Right to Information Act and it is answered suggesting the existence of three more vacancies. He also has produced Ext.P9 to indicate the existence of vacancies. Of this contention, petitioner submits that his claim for provisional promotion as Assistant Engineer ought to be considered. 5. Counter affidavit filed by the respondent show that the cadre strength of Assistant Engineers is 17, which is to be filled up in the ratio of 50:50 between the direct recruitees and promotees. It is stated that 9 vacancies are earmarked for promotees quota, WPC 37883/07 :3 : which is to be filled up in the ratio of 6:3:1 among the graduate, diploma holders and ITI certificate holders. It is stated that it was in order to meet an emergency situation that the provisional promotion by Ext.P3 was ordered and that there was no vacancies available to promote the petitioner. 6. If as stated by the respondents, out of the 17 posts available in the cadre, only 9 are to be filled up by promotion and that too in the ratio of 6:3:1, in the absence of any vacancy available to the petitioner's quota, he cannot claim promotion as a matter of right. However, the petitioner places his claim to Exts.P3 and P6 to P9, which indicates that provisional promotion ignoring the quota has been ordered and that vacancies are still available. 7. Inspite of it, in view of the fact that the respondents have offered explanation through the counter affidavit that Ext.P3 was issued in order to meet the exigencies of service, unless such exigencies are still existing, this Court will not be justified in even issuing any positive direction requiring the respondents to promote anybody beyond the quota available. 8. However, having regard to the fact that by Ext.P3, WPC 37883/07 :4 : temporary promotions have been effected, and Exts.P6 to P9 suggests the existence of vacancies, it is for the respondents to consider whether the exigencies of service demands any further provisional promotions applying the same yardsticks as were applied in the case when promotions were ordered by Ext.P3. 9. Therefore, the 2nd respondent is directed to consider the case of the petitioner for provisional promotion to the cadre of Assistant Engineer, if such an arrangement is warranted in the exigencies of service, applying the same yardsticks as were adopted when Ext.P3 order was issued. Orders in this behalf shall be passed as expeditiously as possible, at any rate within 6 weeks of production of a copy of this judgment. Writ petition is disposed of as above. ANTONY DOMINIC, JUDGE Rp