IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR FRIDAY, THE 26TH DAY OF AUGUST 2011/4TH BHADRA 1933 WP(C).No. 19442 of 2011 (E) --------------------------- PETITIONER : -------------------- R.MURALEEDHARAN NAIR LABORATORY ATTENDER, MINING & GEOLOGY DIRECTORATE THIRUVANANTHAPURAM. BY ADVS.SRI.PIRAPPANCODE V.S.SUDHIR SRI.T.K.ANANDAKRISHNAN SRI.JELSON J.EDAMPADAM RESPONDENT(S): -------------------------- 1. STATE OF KERALA, REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT INDUSTRIES (A) DEPARTMENT, GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM - 695 001. 2. PRINCIPAL SECRETARY TO GOVERNMENT INDUSTRIES (A) DEPARTMENT, GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM - 695 001. 3. THE DIRECTOR, DIRECTORATE OF MINING & GEOLOGY, TRIVANDRUM-4. 4. E.T.SUBHESH KUMAR LABORATORY ASSISTANT, DIRECTORATE OF MINING & GEOLOGY, KESAVADASAPURAM, PATTOM PALACE THIRUVANANTHAPURAM - 695 032. R1 TO R3 BY GOVT. PLEADER SMT. SMITHA SUKUMAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26-08-2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn ...2/- WP(C).No. 19442 of 2011 (E) APPENDIX PETITIONER'S EXHIBITS : EXT.P1 : COPY OF THE LETTER NO. 30097/L2/90/ID DATED 22.1.1991 OF THE 1ST RESPONDENT. EXT.P2 : COPY OF THE LETTER NO. 3051/EA2/90 DATED 18.2.1991 OF THE PROJECT DIRECTOR. EXT.P3 : COPY OF THE G.O.(MS) NO. 65/96/ID DATED 20.3.1996. EXT.P4 : COPY OF THE JUDGMENT OF THIS HON'BLE COURT DATED 6.11.1998 IN O.P. NO. 9934/1995. EXT.P5 : COPY OF THE ORDER DATED 22.6.1999 OF THIS HON'BLE COURT IN C.MP. NO. 13796/1999 IN O.P. NO. 9934/1995. EXT.P6 COPY OF THE G.O.(MS) NO. 37/2001/ID DATED 27.2.2001. EXT.P7 COPY OF THE ORDER NO. 770/2000-2001/1806/E2/2001 DATED 1.3.2001 OF THE 2ND RESPONDENT. EXT.P8 COPY OF THE LETTER NO. 9378/A2/07/ID DATED 4.8.2007 OF THE PRINCIPAL SECRETARY, INDUSTRIES DEPARTMENT, ADDRESSED TO THE DIRECTOR, MINING AND GEOLOGY. EXT.P9 COPY OF THE LETTER NO. 7664/E1/08 DATED 30.8.2008 OF THE STATE PUBLIC INFORMATION OFFICER ATTACHED TO THE MINING AND GEOLOGY DEPARTMENT. EXT.P10 COPY OF THE ORDER NO. 1/2002-2003/7365/E2/2002/DMG DATED 22.4.2002 OF THE 3RD RESPONDENT. EXT.P11 COPY OF THE CERTIFICATE DATED 30.6.1980 ISSUED BY SRI.B.J.VAN RIEL -UN MINERALOGIST. EXT.P12 COPY OF THE CERTIFICATE DATED 13.1.1981 ISSUED BY THE ASSISTANT GEOLOGIST - KERALA MINERAL EXPLORATION. (Contd...) WP(C).No. 19442 of 2011 (E) EXT.P13 COPY OF THE CERTIFICATE DATED 18.2.1983 ISSUED BY THE DEPUTY DIRECTOR - KERALA MINERAL EXPLORATION AND DEVELOPMENT PROJECT. EXT.P14 COPY OF THE SPECIAL RULES FOR THE KERALA GEOLOGY SUBORDINATE SERVICE ISSUED BY THE 1ST RESPONDENT BY G.O.(P) NO. 162/96/ID DATED 4.10.1996. EXT.P15 COPY OF THE LETTER DATED 12.5.2009 OF THE DIRECTOR, GEOLOGICAL SURVEY OF INDIA, KERALA UNIT, CARRYING THE ENDORSEMENT OF THE 3RD RESPONDENT THAT THE PETITIONER SHOULD PREPARE 77 THIN SECTIONS AND ONE POLISHED SECTION. EXT.P16 COPY OF THE REPRESENTATION DATED 1.1.2010 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. EXT.P17 COPY OF THE MEMO NO. 3814/E1/2010 DATED 19.5.2010 OF THE STATE PUBLIC INFORMATION OFFICER, ATTACHED TO THE OFFICE OF THE 3RD RESPONDENT. EXT.P18 COPY OF THE LETTER NO. 5209/E1/2009 DATED 19.1.2010 OF THE 3RD RESPONDENT ADDRESSED TO THE 2ND RESPONDENT. EXT.P19 COPY OF THE G.O.(P) NO. 154/2009/FIN DATED 24.4.2009. EXT.P20 COPY OF THE LETTER NO. 1114/E1/2011 DATED 25.2.2011 OF THE STATE PUBLIC INFORMATION OFFICER ATTACHED TO THE OFFICE OF THE 3RD RESPONDENT. EXT.P21 COPY OF THE ORDER NO. 753/2010-11/5209/E1/2008 DATED 31.1.2011 OF THE 3RD RESPONDENT PROMOTING THE 4TH RESPONDENT IN THE POST OF LABORATORY ASSISTANT. EXT.P22 COPY OF THE LETTER NO. 1605/A2/2010/IND. DATED 18.12.2010 OF THE 1ST RESPONDENT ADDRESSED TO THE 3RD RESPONDENT. EXT.P23 COPY OF THE REPRESENTATION DATED 11.4.2011 SUBMITTED BY THE PETITIONER BEFORE THE DIRECTOR. RESPONDENT'S EXHIBITS : NIL //TRUE COPY// P.A. TO JUDGE Mn C.T. RAVIKUMAR, J - - - - - - - - - - - - -- - - - - - - - - - - - - - - - W.P.(C)No. 19442 OF 2011 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 26th day of August, 2011 J U D G M E N T The petitioner who is presently working as Laboratory Attender under the Directorate of Mining and Geology at Thiruvananthapuram filed this writ petition mainly challenging Exts.P21 and P22 and also seeking issuance of a writ of mandamus commanding the respondents 1 to 3 to promote the petitioner to the post of Laboratory Assistant in the vacancy that had occurred on 1.6.2009 and for that matter from 1.4.2010 with all consequential benefits. 2. Essentially, the petitioner raised two grounds to substantiate the claim for the aforesaid reliefs. According to the petitioner the date of occurrence of vacancy against which he seeks promotion occurred on 1.6.2009 and not on 1.4.2010. Secondly, it is contended that on the date of occurrence of vacancy the 4th respondent was unqualified. 3. The petitioner is working as Laboratory Attender and the 4th respondent was working as Section Cutter. Both the said categories formed feeder categories for promotion to the WPC.No.19442/2011 : 2 : post of Laboratory Assistant. As per Ext.P22 the 4th respondent was promoted to the said post. 4. The first contention of the petitioner is that the post in question fell vacant only on 1.6.2009 and not on 1.4.2010. The incumbent who held the post of Laboratory Assistant retired from the service on 31.3.2010. The contention of the petitioner is that the said incumbent attained the age of superannuation on 1.6.2009 and continued in service thereafter, only on account of the Government Order of unification of the age of retirement. Therefore, it is contended that for all purpose the date of his retirement from service should be taken as 1.6.2009, the date of which that incumbent attained the age of superannuation and merely because, on account of the G.O. the date of his retirement was postponed cannot be a reason for treating the occurrence of vacancies as 1.4.2010. I am afraid that the said contention cannot be countenanced in view of a decision of this Court in Kunjachan v. State of Kerala reported in 2009(4)KLT 648. Going by the said decision the amendment brought to Rule 60 of Part I of Kerala Service Rules was upheld. In view of the said decision, the contention of the petitioner that the date of occurrence of vacancies should be taken as 1.6.2009 WPC.No.19442/2011 : 3 : despite the actual retirement of the incumbent holding the post from service on 31.3.2010 cannot be upheld. 5. The other ground raised by the petitioner for challenging promotion of the 4th respondent is that as on the date of occurrence of vacancies 4th respondent was unqualified. The 4th respondent was directly recruited as a Section Cutter in to the service of the 3rd respondent on 5.10.2006. The contention of the petitioner is that if the date of occurrence of vacancy is taken as 1.6.2009 the 4th respondent has to be held as unqualified on account of non- possession of prescribed years of experience. For promotion to the post of Laboratory Assistant the prescribed qualifications are a pass in Std VII or equivalent qualification and minimum service of 3 years in the category of Section Cutter. Thus, it is obvious that the petitioner himself admits the fact that the 4th respondent is a person belonging to the feeder category for promotion to the post of Laboratory Assistant. Paragraph 15 of the writ petition would reveal that the 4th respondent commenced his service under the 3rd respondent on 5.10.2006. A scrutiny of the contention raised by the petitioner would reveal that the latter contention of the petitioner is also founded on the contention that the date of WPC.No.19442/2011 : 4 : occurrence of vacancy in question was 1.6.2009 and not 1.4.2010. Since the first contention of the petitioner with respect to the date of occurrence of vacancy was rejected, this contention is also liable to be rejected. For the purpose of deciding the entitlement of the 4th respondent for promotion to the post in question his experience has to be looked into only with reference to the date of occurrence of vacancy viz., 1.4.2010. Undoubtedly, if 1.4.2010 is taken as the date of occurrence of vacancies one cannot say that the 4th respondent was unqualified on the date of occurrence of vacancies as he had more than three years of service as on that date in the post of Section Cutter. For foregoing reasons, I find no merit in this writ petition. Accordingly, it is dismissed. Sd/- (C.T. RAVIKUMAR, JUDGE) jma //true copy// P.A to Judge