IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 4TH FEBRUARY 2011 / 15TH MAGHA 1932 WP(C).No. 29686 of 2008(H) ---------------------------------------- PETITIONER(S): ------------------------ 1. ABDUL RAHMAN T.M. SECURITY GUARD, COCHIN UNIVERSITY OF SCIENCE & TECHNOLOGY, KALAMASSERRY, COCHIN-22, ERNAKULAM DIST. 2. KARTHIKEYAN K.K. SECURITY GUARD, COCHIN UNIVERSITY OF SCIENCE & TECHNOLOGY, KALAMASSERRY, COCHIN-22, ERNAKULAM DIST. BY ADV. SRI.KALEESWARAM RAJ RESPONDENT(S): --------------------------- 1. COCHIN UNIVERSITY OF SCIENCE & TECHNOLOGY (CUSAT) REPRESENTED BY ITS VICE CAHANCELLOR, COCHIN UNIVERSITY OF SCIENCE & TECHNOLOGY, KALAMASSERRY,COCHIN -22. 2. THE REGISTRAR COCHIN UNIVERSITY OF SCIENCE & TECHNOLOGY KALAMASSERRY,COCHIN -22. 3. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT DEPARTMENT OF HIGHER EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM. 4. MATHEW, SECURITY GUARD COCHIN UNIVERSITY OF SCIENCE & TECHNOLOGY KALAMASSERRY,COCHIN -22. 5. MURALEEDHARAN ,SECURITY GUARD COCHIN UNIVERSITY OF SCIENCE & TECHNOLOGY KALAMASSERRY,COCHIN -22. sts WP(C)NO.29686/2008 6. THAMPI , SECURITY GUARD COCHIN UNIVERSITY OF SCIENCE & TECHNOLOGY KALAMASSERRY,COCHIN -22. R1 & R2 BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAI,SC,COCHIN U R2 BY GOVERNMENT PLEADER SMT.N.SUDHA DEVI R4 BY ADV. SRI.SUNILNATH SMT.M.R.ANUPAMA SRI.S.K.HARISH R5 BY ADV.SRI.SHEJI P.ABRAHAM R6 BY ADV. SRI.ANTONY M. AMBAT THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/02/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C)NO.29686/2008 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE U.O.NO.AD.A3/22274/80 DATED 17/7/1981. P2 COPY OF THE RELEVANT PART OF THE MINUTES DATED 28/3/2005. P3 COPY OF THE CIRCULAR DATED 27/9/2005. P4 COPY OF THE CIRCULAR DATED 20/2/2006 P5 COPY OF THE CIRCULAR DATED 24/6/2006. P6 COPY OF THE INTERVIEW MEMO DATED 6/11/2006 ISSUED TO THE 1ST PETITIONER. P7 COPY OF THE INTERVIEW MEMO DATED 6/11/2006 ISSUED TO THE 2ND PETITIONER. P8 COPY OF THE NEW REPORT WHICH APPEARED IN MATHRUBHUMI DAILY DATED 21/11/2006. P9 COPY OF THE JUDGMENT DATED 2/12/2005 IN WP(C)NO.29746/2005. P10 COPY OF THE RELEVANT PAGES OF THE SSLC BOOK OF THE 1ST PETITIONER. P11 COPY OF THE RELEVANT PAGES OF THE SSLC BOOL OF THE 2ND PETITIONER. P12 COPY OF THE JUDGMENT DATED 4/4/2007 IN WP(C)NO.32299 OF 1999. P13 COPY OF THE JUDGMENT DATED 18/6/2008 IN WP(C) NO.17735/2008. P14 COPY OF THE SENIORITY LIST OF SECURITY GUARDS IN THE UNIVERSITY. P15 COPY OF THE APPLICATION DATED 20/6/2006 SUBMITTED BY THE 1ST PETITIONER. P16 COPY OF THE SELECT LIST (NOTIFICATION)DATED 14/10/2008. P17 COPY OF THE MATRICULATION CERTIFICATE DATED 28/2/1991 WITH RESPECT TO THE 5TH RESPONDENT. P18 COPY OF THE RELEVANT PAGES OF THE CERTIFICATE OF SERVICE (ARMY) WITH RESPECT TO THE 5TH RESPONDENT. RESPONDENT'S EXHIBITS: R1(A) COPY OF THE MATRICULATION CERTIFICATE ISSUED BY THE INDIAN ARMY. R1(B) COPY OF THE RELEVANT PAGES OF THE SERVICE CERTIFICATE OF THE 5TH RESPONDENT. sts WP(C)NO.29686/2008 R1(C) COPY OF THE RECOMMENDATIONS OF THE SELECTION COMMITTEE (NON- TEACHING POST) R5(A) COPY OF THE MATRICULATION CERTIFICATE ISSUED BY THE INDIAN ARMY. R5(B) COPY OF THE ADMISSION REGISTER OF AI FAROOKHIA HIGH SCHOOL, CHERANALLOOR ISSUED BY THE HEAD MISTRESS. /TRUE COPY/ P.A.TO.JUDGE sts S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No. 29686 of 2008 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 4th day of February, 2011 J U D G M E N T The petitioners are Security Guards in the service of the 1st respondent-Cochin University of Science & Technology. There is a higher post of Sergeant in the service of the University, the method of appointment to which is by promotion from the post of Security Guards. A vacancy arose in 2002 and another in 2003. The appointments were not made to those vacancies immediately after arising of the vacancies. By Ext.P3 circular dated 27.09.2005, applications were invited from the Security Guards for consideration for promotion to the vacancies. The last date fixed for submitting the applications in Ext.P3 circular was 20.10.2005. For some reasons, the applications were not processed and the promotions were not made. Again, by Ext.P5 circular dated 24.06.2006, applications were invited and the last date fixed was 30.06.2006. Still nothing happened. In the meantime, W.P.(C)No. 29686 of 2008 -2- the 4th respondent entered service on 30.7.2006. Another vacancy arose on 30.11.2006. He filed W.P. (C) No.17735/2008 contending that he is also qualified to be considered and his representations in this regard may be considered. This court by Ext.P13 judgment directed the University to consider his representations. Subsequently the petitioners, respondents 4 to 6 and two others were considered and respondents 4, 5 & 6 were selected for such promotion to the three vacancies. The petitioners are challenging the same. Primarily their grievance is against the respondents 4 & 5. Pursuant to interim order dated 18.05.2010 the case of the 6th respondent was considered and he was promoted to one of the vacancies. As far as the 4th respondent is concerned, their contention is that since the last date for submitting applications was 30.06.2006 and the 4th respondent entered service only on 30.07.2006 he could not have even considered at all. As far as the 5th respondent is concerned, the objection is that, the minimum qualification prescribed is S.S.L.C. and the W.P.(C)No. 29686 of 2008 -3- 5th respondent did not possesses the same. The petitioners seek the following reliefs: “i) to declare that promotion of respondents 4 and 5 as sergeant in the service of CUSAT is illegal, arbitrary and unsustainable; ii) to issue a writ of certiorari quashing the selection of respondents 4 and 5 as Sergeant; iii) to issue a writ of mandamus directing the respondents 1 and 2 to promote the petitioners as Sergeant; iv) to issue a writ of mandamus directing the respondents 1 and 2 to consider the petitioners promotion on the basis of the criteria like (i) date of occurrence of vacancy, (ii) last date fixed for filing application, (iii) qualification prescribed for the post etc. and also in the light of Ext.P1 rules;” 2. A counter affidavit has been filed by the respondents 1 & 2, wherein they take the stand that the delay in processing the applications was because the files relating to the selection to the post of Sergeant were missing. According to them, in view of Ext.P13 judgment, the representation of the 4th respondent was considered and it was decided to consider him also for promotion insofar as the 3rd vacancy arose only on 30.11.2006. According to the respondents 1 & 2, comparative merits of all the candidates were assessed and a select list was prepared which is W.P.(C)No. 29686 of 2008 -4- Ext.P16, as per which the respondents 4, 5 & 6 were selected in that order. They would therefore contend that the petitioners were overlooked only on the basis of merit and therefore the writ petition is misconceived. 3. I have considered the rival contentions in detail. 4. The recruitment rules to the post of Sergeant are contained in Ext.P1, which reads thus: Name of Post Qualifications Method of recruitment (ii) Sergeant a) SSLC b) Five years' Military service c) Good Physique (a) By recruitment on the basis of merit by inviting applications by advertisement in the Press.(Direct recruitment) or (b) by promotion from the category of Security Guard, on the basis of proven ability and good record of work At the outset I must state that the stand of the University that the selection is to be based on merit does not appear to be correct. Regarding the method of appointment, all what the recruitment rules say is that, it is by promotion from the category of Security Guard, on the W.P.(C)No. 29686 of 2008 -5- basis of proven ability and good record of work. To my mind, it only means that if the person is suitable for promotion the selection must be on the basis of seniority. Secondly, admittedly the 4th respondent was not in service when Exts.P3 & P5 were issued inviting applications for the two posts which had arisen by then. He entered service only on 30.07.2006, whereas Exts.P3 & P5 were issued on 27.09.2005 and 24.06.2006 fixing the last date for submitting applications are 20.10.2005 and 30.06.2006. All what Ext.P13 judgment directed was to consider the representations of the 4th respondent. That does not mean that the 4th respondent should also be considered for selection even if he had not applied in time or was in service at the relevant time. As such the consideration of the 4th respondent for the first two is clearly illegal. Perhaps since the 3rd vacancy arose on 30.11.2006 the 4th respondent could have been considered for that post. I am not expressing any opinion in respect of that question now, insofar as in view of my finding on the method of W.P.(C)No. 29686 of 2008 -6- recruitment, the petitioners are entitled to promotion by virtue of their seniority. As far as the 5th respondent is concerned, the question of his eligibility was considered by a learned Judge of this court by order dated 25.03.2009 in I.A. No.15705/2008 which order reads thus: “Heard the learned counsel appearing on either side. 2. This is an application filed by the fifth respondent in the writ petition to vacate the interim order passed in I.A.No.13111/08. The writ petitioners challenge the promotion of respondents 4 and 5 to the post of Sergeant. The petitioners contend that the fourth respondent's application was belatedly made and that he did not apply pursuant to Ext.P5 notification. As regards the fifth respondent, it is contended that he has not passed the S.S.L.C. Examination and is therefore not qualified and eligible. The qualifications prescribed for the post of Sergeant by the Cochin University of Science and Technology are: a) SSLC b) Five years' Military service. c) Good Physique The methods of appointment are either by direct recruitment or by promotion from the category of Security Guard. 3. The fifth respondent who has filed this application contends relying on Ext.R5 (a) certificate issued by the Indian Army that he is a matriculate and is therefore qualified and eligible to be appointed as Sergeant. Sri. Kaleeswaram Raj, learned counsel appearing for the writ petitioners contends relying on Exts.P17 and P18 that in order to qualify as a matriculate, the ex-service man should have passed the Indian Army Class I Examination or its equivalent examination in the Navy or Air Force. The learned counsel for the writ petitioners submitted relying on Ext.P18 that fifth respondent has not passed the Indian Army Class I Examination and that he has passed only Class II and III examinations. The learned counsel for the writ petitioners also contends that fifth respondent is not W.P.(C)No. 29686 of 2008 -7- a matriculate and that Ext.R1 (a) certificate would at best show that the fifth respondent had served in the Indian Army for 16 years. 4. I have considered the submissions made at the Bar by the learned counsel appearing on either side. After hearing arguments on both sides, I am prima facie satisfied that the fifth respondent is not qualified to be appointed to the post of Sergeant. I am also prima facie satisfied that the application submitted by the fourth respondent was belatedly made. In these circumstances, I find no ground to vacate the interim order passed by this Court. In the result, this I.A. Is dismissed. Post the writ petition for hearing on 22.5.2009.” I am inclined to agree with the said order as far as the qualifications of the 5th respondent is concerned. Even otherwise, it is submitted before me by the learned counsel for the University that the 5th respondent had already retired from service. In any event, in view of my finding that as per the recruitment rules if the petitioners were not unsuitable they should have been promoted in view of their seniority over respondents 4 & 5. I do not have to go to the other contentions in as much as admittedly respondents 4 & 5 were juniors to the petitioners in service as Security Guards. As I have already stated, during the pendency of this writ petition the 6th respondent had already been promoted and the petitioners do not raise any contentions W.P.(C)No. 29686 of 2008 -8- against his appointment as such. It is the University's case that the petitioners were considered and were not selected only because they scored less marks than respondents 4 to 6. That means the University has no case that the petitioners are not suitable for promotion. In the above circumstances, I hold that to the other two vacancies, by virtue of their seniority, the petitioners were entitled to be appointed by promotion. Accordingly the respondents 1 & 2 are directed to promote the petitioners to the balance two vacancies. Orders in this regard shall be passed as expeditiously as possible, at any rate, within one month from the date of receipt of a certified copy of this judgment. The writ petition is allowed as above. Sd/- S. SIRI JAGAN JUDGE //True copy// P.A. TO JUDGE shg/