IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 28TH JULY 2010 / 6TH SRAVANA 1932 WP(C).No. 32774 of 2009(N) ------------------------------------ PETITIONER(S): ---------------------- 1. BABU VATHUKACHALIL, AGED 33 YEARS, S/O.LATE K.P.KRISHNAN, PEON, MUNICIPAL OFFICE, MATTANNUR, RESIDING AT KARIYIL HOUSE, NADUVATTAM KUNNU - ILLAM MOOLA, P.O. MATTANNUR, KANNUR DISTRICT. 2. SHYNI M.J. W/O.WILSON BABU K.J., PEON, MUNICIPAL OFFICE,KANNUR,NEAR R.C.CHURCH, P.O. MATTOOL (SOUTH),KANNUR DISTRICT. 3. BABU ASSANTE CHALIL, S/O.KRISHNAN K.V. AGED 37 YEARS, PEON, MUNICIPAL OFFICE, THALASSERY, 'SRAVASS' R.V.METTA, P.O. ERIVERI, KANNUR DISTRICT. BY ADV. SRI.P.U.SHAILAJAN RESPONDENT(S): ------------------------ 1. STATE OF KERALA, REP.BY CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE SECRETARY, MINISTRY OF LOCAL SELF GOVERMENT INSITUTIONS OF THE STATE OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM. 3. THE DIRECTOR, OFFICE OF THE DIRECTOR OF KERALA MUNICIPAL SERVICE,THIRUVANANTHAPURAM. SUPPLEMENTAL 4TH RESPONDENT 4. KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, THIRUVANANTHAPURAM. GOVERNMENT PLEADER MR.ANTONY MUKKATH STANDING COUNSEL MR.ALEXANDER THOMAS THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. ~~~~~~~~~~~~~~~ W.P.(C) No.32774 of 2009 ~~~~~~~~~~~~~~~~~~ Dated this the 28th day of July 2010 J U D G M E N T Petitioners are working as Peons in the Municipal Common Service. Ext.P9 is the seniority list where their names are included in serial Nos.14, 16 & 17 respectively. Their claim is for promotion to the post of Lower Division Clerk/Bill Collector. According to the petitioners up to serial No.13 have already been promoted and relying on Ext.P5, they say there are 3 more vacancies in existence. It is stated that despite that, they are not promoted. Reason according to the petitioners is that in Ext.P7 Government Order dated 17.3.1980, it was provided that 5% of the posts in the Lower Division Clerk/Bill Collector category will be earmarked for the Last Grade Servants provided that they pass in the examination conducted by the PSC with 40% W.P.(C) No.32774 of 2009 -: 2 :- marks. It is stated that the requirement specified in Ext.P7, has been deleted by Ext.P8 Government Order dated 26.10.2005 and therefore the stand taken by the respondents that the petitioners should pass the examination held by the PSC as a condition for promotion is illegal. They also refer Exts.P1 to P3 and submits that persons mentioned therein were promoted without passing the examination conducted by the PSC. 2. Therefore what arises for consideration is whether the petitioners should pass the examination conducted by the PSC as stated in Ext.P7 for promotion to the post of Lower Division Clerk/Bill Collector. 3. Ext.P7, Government Order dated 17.3.1980 provided that 5% of the posts in the Lower Division Clerk category will be reserved for by transfer appointment of Last Grade Servants in the Municipalities and Corporations provided they pass the examination conducted by the PSC with minimum 40% marks. It is also stated that in respect W.P.(C) No.32774 of 2009 -: 3 :- of such candidates pass in SSLC will not be insisted. Pursuant to the directions by this Court in Writ Petition No.11221/2005, government issued Ext.P8 dated 26.10.2005. Paragraph 4 of the Ext.P8 reads as under:- “Taking into consideration of all the above circumstances, Government are pleased to issue orders reserving 10% of the post of Lower Division Clerk/Bill Collector in Municipal Common Service for 'by transfer method' appointment from among the low paid employees (Class IV) in regular services of Municipal Common Service possessing the educational qualification of SSLC, modifying the existing provision of reservation of 5% by direct recruitment from low paid employees, provided the ratio/percentage has to be applied to the total cadre strength of the post of Lower Division Clerk/Bill Collector in Municipal Common Service.” A reading of the above paragraph of Ext.P8 shows that 5% mentioned in Ext.P7 is enhanced by 10% and henceforth educational qualification of pass in SSLC will be insisted. Therefore, apart from modifying the provision in the percentage and the educational qualification, the requirement of pass in the examination conducted by the W.P.(C) No.32774 of 2009 -: 4 :- PSC insisted in Ext.P7 has not undergone any change even in spite of Ext.P8. Therefore, in spite of the modification to Ext.P8, the requirement of the pass in the examination continues as a condition for claiming by transfer appointment to the post of Lower Division Clerk/Bill Collector in Municipal Common Service. In that view of the matter, the stand taken by the Government in the statement filed on behalf of the 3rd respondent that, the petitioners cannot claim appointment to the post of Lower Division Clerk/Bill Collector in Municipal Common Service without passing the examination and getting themselves included in the ranklist of PSC, cannot be faulted. 4. However, in paragraph 5 of the statement, it is also stated that a clarification regarding the letter of PSC was sought from the Government and no clarification has been received so far. If as stated in the statement, a clarification regarding the requirement of passing of examination is awaited from the Government and if the W.P.(C) No.32774 of 2009 -: 5 :- Government clarifies that the passing of examination is not necessary, it will be open to the petitioners to claim appointment as Lower Division Clerk/Bill Collector on that basis. Writ petition is disposed of as above. ANTONY DOMINIC, JUDGE. Jvt