IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 3RD FEBRUARY 2010 / 14TH MAGHA 1931 OP.No. 29763 of 2002(R) ----------------------- PETITIONER(S): --------------- K.J. DAVID, ENGINEERING INSTRUCTOR (MECHANICAL), TECHNICAL HIGH SCHOOL, SHORNUR, PALAKKAD DISTRICT. BY ADV. SRI.B.KRISHNA MANI SRI.V.PREMCHAND RESPONDENT(S): --------------- 1. THE DIRECTOR OF TECHNICAL EDUCATION, GOVERNMENT OF KERALA, PADMAVILASOM RAOD, THIRUVANANTHAPURAM. 2. THE JOINT DIRECTOR, (POLY TECHNIC STREAM), OFFICE OF THE DIRECTOR OF TECHNICAL EDUCATION, PADMAVILASOM ROAD, THIRUVANANTHAPURAM. 3. THE STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. BY GOVT. PLEADER SMT. M.R. SREELATHA THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 03/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: shg/ OP.No. 29763 of 2002(R) PETITIONER'S EXHIBITS: P1. COPY OF THE RELEVANT PORTION OF APPOINTMENT ORDER DATED 17.5.1983. P2. COPY OF THE ORDER DATED 17.10.1996 PROMOTING THE PETITIONER AS WORKSHOP FORMAN. P3. COPY OF THE ORDER DATED 26.6.1998 POSTING THE PETITIONER AS AN ASST. LECTURER AT MAHARAJAS TECHNICAL INSTITUTE, THRISSUR. P4. COPY OF THE RELEVANT PORTION OF THE ORDER DATED 4.5.2000 REPOSTING THE PETITIONER AS AN ENGINEERING INSTRUCTOR AT TECHNICAL HIGH SCHOOL, KODUNGALLUR. P5. COPY OF THE ORDER DATED 30.5.2000 POSTING THE PETITIONER AS AN ENGINEERING INSTRUCTOR AT TECHNICAL HIGH SCHOOL, SHORNUR. P6. COPY OF THE PROVISIONAL DEGREE CERTIFICATE DATED 13.8.2001 ISSUED BY THE UNIVERSITY OF CALICUT. P7. COPY OF THE MARK LIST DATED 13.8.2001. P8. COPY OF THE MARK LIST DATED 24.5.1999. P9. COPY OF THE MARK LIST WITH REGISTRATION NO.7333. P10. COPY OF THE APPLICATION DATED 30.11.2000 FOR REVALUATION P11. COPY OF THE MARK LIST WITH REGISTRATION NO.2445. P12. COPY OF THE MEMO DATED 10.8.2001 RECEIVED BY THE PETITIONER. P13. COPY OF THE REVISED MARK LIST DATED 10.8.2001. P14. COPY OF THE REVISED MARK LIST DATED 10.8.2001 BEARING REGISTRATION NO.2445. P15. COPY OF THE MEMO DATED 23.8.2001 ISSUED BY THE UNIVERSITY OF CALICUT. P16. COPY OF THE CIRCULAR ALONG WITH THE REVISED PROVISIONAL SENIORITY LIST OF ENGINEERING INSTRUCTOR ETC. ISSUED BY THE DIRECTOR OF TECHNICAL EDUCATION DATED 24.5.2001. P17. COPY OF THE REPRESENTATION DATED 16.8.2001 FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. P18. COPY OF THE ORDER DATED 20.12.2000. P19. COPY OF THE ORDER DATED IN O.P. NO.26237/2001 OF THE HON'BLE HIGH COURT. P20. COPY OF THE COMMUNICATION DATED 4.12.2001 ISSUED BY THE 1ST RESPONDENT. P21. COPY OF THE REPRESENTATION DATED 25.1.2001 SENT BY THE PETITIONER TO THE 1ST RESPONDENT. P22. COPY OF THE ORDER DATED 6.7.2002 ISSUED BY THE GOVERNMENT. P23. COPY OF THE REPRESENTATION DATED 27.6.2002 FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. P24. COPY OF THE APPLICATION DATED 12.2.2003 SUBMITTED BY THE PETITIONER. RESPONDENTS' EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE shg S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - O.P. No. 29763 of 2002 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of February, 2010 J U D G M E N T The petitioner entered service of the Department of Technical Education of the Government of Kerala as a Workshop Instructor on 01.06.1983. At that time he had only the qualification of Diploma in Mechanical Engineering. He was later promoted as Workshop Forman by order dated 17.10.1996. The post of Workshop Forman and Assistant Lecturer are interchangeable posts. Petitioner was posted as Assistant Lecturer at Maharajas Technical Institute, Thrissur. Later, the petitioner was re-posted as an Engineering Instructor, which is another interchangeable post, at Technical High School, Kodungallur by order dated 04.05.2000. Finally the petitioner was posted as an Engineering Instructor at Technical High School, Shornur. He filed this original petition while he was working there. The next promotion O.P. No. 29763 of 2002 -2- post to which the petitioner can aspire for is the post of Lecturer, but for the same he should have the qualification of degree in Engineering. He joined part-time course for 4 year B.Tech Degree. Originally he did not pass in some papers. He applied for revaluation. Ultimately the petitioner succeeded in the revaluation. But because of the delay in completing the revaluation process although the petitioner passed with effect from 29.05.2001, he could not produce the certificate regarding acquiring of the degree qualification before the respondents in time. By the time he produced the same others got promotion and they became senior to the petitioner. Later on, the petitioner was considered and was promoted as Workshop Superintendent. Petitioner's contention is that petitioner was eligible to be promoted as Lecturer and not as a Workshop Superintendent. According to the petitioner persons who are promoted as Workshop Superintendent is to retire as such since there is no promotion avenue for them. On the other hand the lecturers have further avenues for O.P. No. 29763 of 2002 -3- promotion. The petitioner's contention is that going by his seniority in the post of Assistant Lecturer, he should have been promoted as Lecturer. The petitioner therefore seeks the following reliefs: “(A) Call for records leading to Exhibit P22 and quash the same in so far as it relates to the promotion of the petitioner as Superintendent. (B) Declare that the petitioner is entitled to be promoted as a Lecturer in Mechanical Engineering (Polytechnics). (C ) Issue a writ of mandamus or any other appropriate writ, direction or order directing the respondents to promote the petitioner as a Lecturer in Mechanical Engineering forthwith. (D) Issue a writ of mandamus or any other appropriate writ, direction or order directing the respondents to include the name of the petitioner in Ext.P16 as serial No.6 thereby giving him his due seniority. (E) Issue a writ of mandamus or any other appropriate writ, direction or order directing the respondents to treat the petitioner as having passed B.Tech examination from 29.05.2001 in terms of Ext.P15 and accord him all consequential benefits. (F) Issue an interim direction directing the respondents to promote the petitioner as a lecturer in Mechanical Engineering forthwith. 2. I have heard the learned Government Pleader also. The respondents have not filed any counter affidavit. But the learned Government Pleader points out that going by the Special Rules for Kerala Technical Education Service O.P. No. 29763 of 2002 -4- contention of the petitioner are misplaced. The Government Pleader submits that as per the method of appointment for the post of Lecturer, at the first instance the post has to be filled up by transfer from the Kerala Technical Education Subordinate Service from the category of Instructor Grade-I in Engineering Colleges and Workshop Superintendents of Technical High School. Only if qualified candidates in that category are not available, Assistant Lecturer /Instructor in Engineering, Draughtsman Grade-I/Forman belonging to the branch of Engineering can be considered for by transfer appointment to the post of Lecturer. Going by the same, first, Workshop Superintendent have to be considered in accordance with seniority and only if there is no sufficient persons in that category available Assistant Lecturer can be considered for by transfer appointment. After accommodating the first category claimants, there were no sufficient vacancies in the post Lecturer for accommodating the petitioner at the relevant time. She further submits that the post of Workshop Superintendent which is an equivalent O.P. No. 29763 of 2002 -5- and interchangeable post of Lecturer also has to be filled up by transfer from Assistant Lecturer etc. of the Kerala Technical Education Subordinate Service. After accommodating the seniors of the petitioner, as Lecturer, there were only vacancies of Workshop Superintendents, to which the petitioner was accommodated. According to the learned Government Pleader, since the posts of Workshop Superintendent and Lecturer are interchangeable posts as and when vacancies arise in the post of Lecturer, the petitioner's claim can also be considered in accordance with seniority in the cadre of Workshop Superintendent. She also points out that although the two posts carry the same scale of pay the petitioner's aspiration for becoming Lecturer is because of the fact that for consideration to the next higher post of Head of Section, three years' experience as Lecturer is mandatory qualification. 3. I have considered the rival contentions in detail. On a perusal of the Special Rules for Technical Education Service I find full support therein for the contentions raised O.P. No. 29763 of 2002 -6- by the learned Government Pleader. As is clear therefrom, the post of Lecturer is to be first filled up by transfer from Workshop Superintendent and other equivalent categories and only if qualified candidates in that category are not available Assistant Lecturers can be considered. Going by the Special Rules the posts of Lecturer and Workshop Superintendent are equivalent posts and interchangeable. The petitioner has admittedly been promoted as Workshop Superintendent. That being so, as and when the post of Lecturer falls vacant the petitioner can request for category change as Lecturer which has to be considered in accordance with seniority. 4. As far as the dispute raised by the petitioner regarding seniority is concerned, I do not think that the respondents can be found fault with, since the petitioner produced evidence of acquiring the required qualification before them belatedly for which respondents cannot be faulted even if the same was because of delay on the part of the University is declaring the revaluation results. As such O.P. No. 29763 of 2002 -7- I do not find any merit in the claim of the petitioner for seniority on the basis that he acquired the qualification on a prior date. The writ petition is disposed of as above. S. SIRI JAGAN JUDGE shg/