IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 2ND DECEMBER 2010 / 11TH AGRAHAYANA 1932 WP(C).No. 27848 of 2003(M) ---------------------------------- PETITIONERS: --------------- 1. K.G. PADMANABHANKUTTY, ASSISTANT GRADE II, MATSYA FED DISTRICT OFFICE, TRISSUR. 2. K.SURENDRAN, ASSISTANT GRADE II, MATSYA FED DISTRICT OFFICE, KANNUR. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) RESPONDENTS: ----------------- 1. STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, FISHERIES & PORTS DEPARTMENT, TRIVANDRUM. 2. THE DIRECTOR OF FISHERIES AND REGISTRAR OF FISHERIES CO-OPERATIVES, VIKAS BHAVAN, TRIVANDRUM. 3. THE KERALA STATE CO-OPERATIVE FEDERATION FOR FISHERIES DEVELOPMENT LTD., (MATSYAFED) TRIVANDRUM, REPRESENTED BY ITS MANAGING DIRECTOR. ADV. SRI.MATHEW ZACHARIAH, SC, MATSYAFED FOR R3 SRI.P.K.VIJAYA MOHANAN, SC, MATSYAFED FOR R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 27848 of 2003 APPENDIX PETITIONERS' EXHIBITS EXT.P1: COPY OF THE GOVERNMENT ORDER DTD 18.2.89. EXT.P1(a): COPY OF THE APPENDIX IV OF EXT.P1. EXT.P1(b): COPY OF THE APPENDIX V OF EXT.P1. EXT.P2: COPY OF THE TENTATIVE SENIORITY LIST OF ASSISTANT GRADE II IN THE MATSYAFED AS ON 1.6.1998. EXT.P3: COPY OF THE ORDER DTD 12.4.1991 BY R1. EXT.P3(a): COPY OF THE APPENDIX TO EXT.P3. EXT.P4: COPY OF THE LETTER DTD 17.3.1998 BY R2. EXT.P5: COPY OF THE ORDER DTD 19.3.1998 OF R3. EXT.P6: COPY OF THE ORDER DTD 19.5.2000 BY R3. EXT.P7: COPY OF THE ORDER DTD 30.5.2000 ISSUED BY R3. EXT.P8: COPY OF THE NOTIFICATION ISSUED BY R3. EXT.P9: COPY OF THE INSTRUCTION CHART FOR THE POST OF ASSISTANT GRADE II ISSUED BY R3. EXT.P10: COPY OF THE JUDGMENT DTD 15.7.2002 IN O.P.NO.18921/2002 BEFORE THE HON'BLE HIGH COURT OF KERALA. EXT.P11: COPY OF THE LETTER DTD 28.8.2002 BY R3 ADDRESSED TO R1. EXT.P12: COPY OF THE SENIORITY LIST OF ASSISTNAT SECRETARIES OF THE DISTRICT SOCIETIES IN MATSYAFED. EXT.P13: COPY OF ORDER DTD 13.2.2004. TRUE COPY PA TO JUDGE. S. SIRI JAGAN, J. ----------------------------------- W.P.(C) No.27848 OF 2003 --------------------------------------- Dated this the 2nd day of December, 2010 JUDGMENT The petitioners were appointed as Junior Assistants in the Inland Fisheries Development Corporation of the Government of Kerala on 1.7.1982. Later on, the Government of Kerala formed the Kerala Co-operative Federation of Fisheries Development Limited, (popularly known as Matsyafed) by amalgamating three Government owned Corporations namely, Kerala Fisheries Corporation, Kerala Inland Fisheries Development Corporation and Kerala Fishermen Welfare Corporation. On amalgamation, the petitioners, who were Junior Assistants in the Inland Fisheries Development Corporation, were absorbed as Assistants Gr.II in the Matsyafed, the third respondent herein. Ext.P1 is the Government Order dated 18.2.1989 effecting the amalgamation and absorption. Ext.P1(a) contains the list of persons so absorbed. Serial Nos.2 and 3 in Ext.P1(a) are the petitioners 2 and 1 respectively herein. Their scale of pay was also fixed as W.P.(C)No.27848/03 2 `.640-1000. Ext.P2 is the seniority list of Assistants Gr.II of Matsyafed as on 1.6.1998, in which the first petitioner is serial No.3 and the second petitioner is serial No.4. By Ext.P1, the Government revised the scales of pay of employees of the Matsyafed, wherein the scale of pay of Assistant Gr.II was revised from `.640-1000 to `.825-1290. The same also provided that a ratio of 1:1 will be maintained between Assistant Gr.II on `.825-1290 and Assistant Gr.I on `.950- 1590. Similar ratio promotions were provided for other employees also like the Project Officers, confidential Assistants etc. According to the petitioners, neither the petitioners nor the persons in the other categories namely, Project officer, Confidential Assistant etc., who were absorbed from the other Corporations possessed the prescribed qualifications as per the Kerala Co-operative Societies Rules. By Ext.P4, the second respondent accorded sanction for implementation of Ext.P3 pay revision order. By Ext.P5, in implementation of Ext.P3, the Project Officers were given ratio promotion as provided in Ext.P3. Although by Ext.P6 the petitioners were also given the ratio promotion, by Ext.P7, the promotion granted by W.P.(C)No.27848/03 3 Ext.P6 was kept in abeyance. This according to the petitioners was on the basis that the petitioners did not possess the qualification of JDC prescribed by the Kerala Co-operative Societies Rules. According to the petitioners, even after the amalgamation, for appointments into the Matsyafed itself, the Matsyafed did not insist on JDC as a qualification for appointment as Assistant Gr.II, as is evident from Exts.P8 and P9. Ext.P8 is the notification inviting applications in 1994 for various posts including Assistant Gr.II, where the qualification stipulated was degree. Ext.P9 is the instruction chart for the selection to the post of Assistant Gr.II, where the term 'not qualified' was stated to mean “not having the prescribed qualification ie; graduation in any subject”. The petitioners were also not given the benefit of time bound higher grades in respect thereof. The first petitioner and another similarly placed persons approached this Court by filing O.P.No.18921/2002, in which, by Ext.P10 judgment, this Court directed grant of higher grades to the petitioners. According to the petitioners, pursuant to the said judgment, the petitioners were given higher grade promotion, but not in the scale of pay W.P.(C)No.27848/03 4 applicable to Assistant Gr.I, but in the intermediate standard scale prescribed as per the pay revision orders on the ground that the petitioners did not possess the qualifications prescribed for Assistant Gr.II and therefore, they are entitled to only the intermediate scale applicable to unqualified persons. In respect thereof, the petitioners have filed another writ petition namely, W.P.(C)No.12163/2006, which is also posted along with this writ petition for hearing. The petitioners point out that in Ext.P11, Matsyafed themselves had addressed the Government requesting to give exemption to persons like the petitioners from acquiring the educational qualification, in view of the peculiar circumstances of the case. According to the petitioners, in Ext.P11 there is a specific admission that for granting ratio promotion to other categories of persons, the educational qualifications were not reckoned. The petitioners submit that the petitioners have been singled out for hostile discrimination in the matter of grant of ratio promotion, whereas for other categories of posts, the ratio promotions were given to the incumbents without insisting on the qualifications prescribed in the Kerala Co-operative Societies W.P.(C)No.27848/03 5 rules. It is under the above circumstances, the petitioners have filed this writ petition seeking the following reliefs: “(i) declare that the petitioners are entitled to be promoted as Senior Assistant wef from 1.9.90 as view of Exhibit P3 and P3(a) and the promotion policy and staff regulation of the 3rd respondent. (ii) Declare that the petitioners are entitled to be promoted as Senior Assistant/Assistant Grade I with effect from 1.9.90 and also subsequent promotion as Superintendent and Assistant Manager.” 2. No counter affidavit has been filed in this writ petition by the respondents. But, the third respondent refers to the judgment of the Division Bench in W.A.No.1057/2003, which is produced as Ext.R3(b) along with the counter affidavit filed by the third respondent in W.P.(C)No.12163/2006. Based on the said judgment, the learned counsel for the third respondent would argue that this Court has held that promotions to the post of Assistant Gr.I cannot be given without the incumbents obtaining qualifications prescribed under the Kerala Co-operative Societies Rules. 3. I have considered the rival contentions in detail. I am not inclined to apply the decision of the Division Bench in W.A.No.1057/2003 to the facts of this case, insofar as W.P.(C)No.27848/03 6 admittedly in that case the question considered was the eligibility for cadre promotion and not either ratio promotion or time bound higher grade promotion. No doubt, for cadre promotion certainly the rules in Kerala Co-operative Societies Rules would have to be followed and only persons having the required qualifications can be regularly promoted to posts in Co-operative Societies. 4. But, the facts are different in the case of the petitioners. First of all, they are not seeking cadre promotion but, only ratio promotions as per the pay revision order. The petitioners are a vanishing category. They were absorbed in the Matsyafed from the Kerala Inland Fisheries Development Corporation. Nobody has any case that at the time of appointment in the Inland Fisheries Development Corporation, the petitioners did not have the qualifications prescribed for the post, in which they were so appointed. They were absorbed in the Matsyafed on amalgamation of three Government entities including Inland Fisheries Development Corporation. Ext.P1 is the order containing conditions for such amalgamation. Ext.P1 order does not stipulate anything about W.P.(C)No.27848/03 7 the qualifications of the persons so absorbed. When Ext.P1 was issued, they were absorbed in the Matsyafed without any condition regarding qualifications for absorption in Matsyafed. At the time of absorption of the petitioners, the qualifications prescribed in the Co-operative Societies Rules were in existence. Therefore, the petitioners were absorbed in the Matsyafed by the Government knowing fully well that the petitioners did not have the qualifications so prescribed in the Kerala Co-operative Societies Rules. Perhaps, taking into account that fact only, the ratio promotion was prescribed in the pay revision orders. Pursuant to the pay revision orders, admittedly, other categories of persons like the Project Officers were given ratio promotions without insisting on educational qualifications prescribed. If that be so, it defies logic as to why the petitioners in the category of Assistant Gr.II alone should be denied the benefit of ratio promotion given to the others. In fact, realising all these, the Matsyafed had addressed the Government by Ext.P11 to exempt such persons from the requirement of educational qualifications. In the above circumstances, I am of opinion that the petitioners cannot be W.P.(C)No.27848/03 8 denied the benefit of ratio promotion. In this connection, I also note the fact that the Government are liberally giving exemption from qualifications prescribed in the Kerala Co- operative Societies Rules, for promotions in exercise of the powers given under Rule 185 of the Kerala Co-operative Societies Rules, to employees of other Co-operative Societies. I am also of opinion that the case of the petitioners is an eminently fit case for the Government to exercise the said power to exempt these persons from possessing the required qualifications, in view of the very peculiar circumstances, particularly, the fact that they were absorbed from the Inland Fisheries Development Corporation and they are vanishing category in the Matsyafed. In this connection it may further be noted that the petitioners have already retired from service. In the above circumstances, I hold that the petitioners are entitled to ratio promotion as provided in Exts.P3 and P3(a) with effect from the date of Ext.P6. Orders in this regard shall be passed and arrears of salary given to the petitioners as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment. I also direct the W.P.(C)No.27848/03 9 first respondent to consider and pass orders on Ext.P11 request of the Matsyafed for exempting the persons like the petitioners from the requirement of educational qualifications for further promotion, which shall be done as expeditiously as possible, at any rate, within three months from the date of receipt of a copy of this judgment. The writ petition is allowed as above. S. SIRI JAGAN, JUDGE acd W.P.(C)No.27848/03 10 W.P.(C)No.27848/03 11