IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 25TH SEPTEMBER 2008 / 3RD ASWINA 1930 WP(C).No. 35490 of 2007(Y) ----------------------------------------- PETITIONER: -------------------- V.V. SOBHANA, ASSISTANT ENGINEER (FULL ADDL.CHARGE OF ASSISTANT EXECUTIVE ENGINEER), TRISSUR DIVISION,KERALA STATE HOUSING BOARD, AYYANTHOLE, TRISSUR-3. BY ADV. SRI.P.P.JACOB SRI.B.MANIMOHAN RESPONDENTS: ------------------------- 1. KERALA STATE HOUSING BOARD, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY. 2. THE SECRETARY, KERALA STATE HOUSING BOARD, THIRUVANANTHAPURAM. 3. SMT. K.P.LAKSHMIKUTTY AMMA, ASSISTANT EXECUTIVE ENGINEER,ALAPPUZHA DIVISION OFFICE, KERALA STATE HOUSING BOARD, ALAPPUZHA. BY SRI. POOVAPPALLY M.RAMACHANDRAN NAIR, SC – R1 TO R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.35490/2007 Y APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE JUDGMENT DTD. 19/09/07 OF THE HON'BLE HIGH COURT IN WP9C) 27887/07. EXT.P2: COPY OF ORDER DTD. 16/11/2007 OF THE SECRETARY, K.S.H.B. EXT.P3: COPY OF PAGE NO.6 OF 1995 REGULATION OF KSHB. EXT.P4: COPY OF PAGE NO.7 OF 2006 REGULATION OF KSHB. EXT.P5: COPY OF PAGE NO.31 OF 1995 REGULATION OF KSHB. EXT.P6: COPY OF PAGE NO.31 OF 2006 REGULATION OF KSHB. EXT.P7: COPY OF THE ORDER DTD. 18/02/2006 OF THE SECRETARY, KSHB, IN FAVOUR OF THE THIRD RESPONDENT. RESPONDENT'S EXHIBITS: EXT.R1(A): COPY OF G.O.(P) NO.25/2003 P & ARD DTD. 21/08/2003. EXT.R1(B): COPY OF NOTIFICATION DTD. 25/11/2006. EXT.R1(C): COPY OF BOARD DECISION DTD. 08/02/2006. EXT.R1(D): COPY OF ORDER NO.HBO-82/ADLL(a) 2540/06 DTD.18/02/06. EXT.R1(E): COPY OF ORDER NO.HBO-74/ADLL (a)2540/06 DTD. 14/02/06. /TRUE COPY/ P.S.TO JUDGE Kss P.N.Ravindran, J. ===================== W.P(C).No.35490 of 2007 ===================== Dated this the 25th day of September, 2008. JUDGMENT The petitioner entered service as Draftsman in the Kerala State Housing Board, hereinafter referred to as the “Board” for short on 7.1.1981. She was promoted as Assistant Engineer with effect from 31.5.1989. Claiming promotion as Assistant Executive Engineer, she filed a representation before the Secretary of the Board. By Ext.P1 judgment delivered on 19.9.2007 this Court directed the Board to take a decision in the matter. Thereafter, Ext.P2 order was passed on 16.11.2007 turning down the petitioner's request on the ground that she does not possess the qualifications prescribed for the post. The plea of the petitioner that as she has crossed 50 years of age, she is exempted from passing the departmental test was also repelled. The Secretary of the Board held in Ext.P2 that as the petitioner has not passed the tests except Account test (Lower), she is not entitled to be promoted. Ext.P2 is under challenge in this Writ Petition. 2. I have heard Sri.B.Manimohan, the learned counsel appearing for the petitioner and Sri.M.Ramachandran Nair, the learned Standing Counsel appearing for the respondents. The learned counsel for the petitioner, relying on Rule 4(2) of the Kerala State Housing Board Establishment (Qualification and Method of Appointment) Regulations, WP(C)35490/07 -: 2 :- 2006, hereinafter referred to as the “Regulations” for short, contends that as the petitioner has completed 50 years of age, she is exempted from passing the obligatory departmental tests in terms of Rule 13B of Part II of the Kerala State and Subordinate Services Rules, 1958, hereinafter referred to as the “KS & SSR” for short, and therefore Ext.P2 is liable to be invalidated. The learned counsel for the petitioner contends that the Secretary of the Board has not applied his mind to relevant and material aspects when he passed Ext.P2. Per contra, the learned counsel for the Board contended that the qualifications prescribed in the Regulations for appointment to the post of Assistant Executive Engineer, namely, a pass in the Account test, pass in PWD test and pass in the test on Kerala State Housing Board Act and Rules conducted by the Kerala Public Service Commission are basic and essential qualifications and have not been prescribed as Departmental tests and therefore, the petitioner cannot rely on Rule 13B of Part II of the KS & SSR or Regulation 4(2) of the Regulations to contend that she is exempted from passing the said tests. The learned counsel for the Board also refers to and relies on the decision of a Division Bench of this Court in Sarojini Amma v. State of Kerala - 2002(3) K.L.T. 573. 3. I have considered the submissions made at the Bar by the learned counsel appearing on either side. The qualifications prescribed for the post of Assistant Executive Engineer (Civil) in the Regulations are as follows: WP(C)35490/07 -: 3 :- “(v) Assistant By promotion from 1.Must be an approved Executive the category of probationer in the Engineer Assistant Engineer category of Asst. (Civil) (Civil). (In the ratio Engineer (Civil). 3:1 among Degree 2.Must have rendered and Diploma holders) service as Assistant Engineer(Civil) for not less than (a) 2 years in the case of Degree holders. (b) 5 years in the case of diploma holders. 3.Must have Account Test (Lower),PWD Test and the test on KSHB Act & Rules conducted by the PSC.” It is not in dispute that the petitioner has not passed the PWD test and the test on Kerala State Housing Board Act and Rules conducted by the Kerala Public Service Commission. The question that arises for consideration is whether Regulation 4(2) of the Regulations read with Rule 13B of Part II of the KS & SSR entitles the petitioner to be promoted as Assistant Executive Engineer without passing the aforesaid tests. It is evident from a reading of the Regulations that the qualifications aforementioned have been prescribed as the basic qualifications and not as departmental tests. It is not discernible from the Regulations that the aforesaid qualifications have been prescribed as departmental tests. A Division Bench of this Court in Sarojini Amma v. State of Kerala (supra) after considering the scope of Rule 13B of Part II of the KS & SSR in the light of the Special Rules governing the Survey and Land Records WP(C)35490/07 -: 4 :- Subordinate Service held that Rule 13B can be invoked only to claim exemption from passing the departmental tests. Rule 4(b) of the Special Rules for the Survey and Land Records Subordinate Service prescribes a pass in various tests including Account test (Lower) as qualification for promotion to the post of Head Surveyor. Repelling the argument that these tests are to be treated as departmental tests this Court held that a pass in the said tests is prescribed as the basic qualification and not as obligatory departmental tests. 4. After hearing the learned counsel appearing on either side, I am of the considered opinion that the principles laid down by the Division Bench of this Court in Sarojini Amma v. State of Kerala (supra) applies squarely to the case on hand. It is evident from a reading of the Regulations that pass in Account test (Lower), pass in PWD test and pass in test on Kerala State Housing Board Act and Rules are all basic qualifications and have not been prescribed as departmental tests. This being the situation, the challenge made by the petitioner to Ext.P2 relying on Rule 13B of Part II of the KS & SSR and Regulation 4(2) of the Regulations is plainly untenable and without any merit. Further, the learned counsel for the Board submitted that the Departmental Promotion Committee convened for the purpose of selecting Assistant Engineers for promotion to the post of Assistant Executive Engineer has not found the petitioner suitable for promotion and that the petitioner has not challenged his supersession in these proceedings. WP(C)35490/07 -: 5 :- For the reasons stated above, I hold that the challenge to Ext.P2 is without merit. The Writ Petition fails and it is accordingly dismissed. P.N.Ravindran, Judge. ess 26/9