IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 5TH AUGUST 2010 / 14TH SRAVANA 1932 WP(C).No. 28316 of 2008(R) -------------------------- PETITIONER(S): --------------- B.A. JOSEPH, HELPER, HIGH COURT OF KERALA, ERNAKULAM, COCHIN - 31. BY ADV. SRI.K.JAJU BABU SMT.M.U.VIJAYALAKSHMI SRI.BRIJESH MOHAN SRI.T.R.SADEESAN SRI.T.S.SHYAM PRASANTH RESPONDENT(S): --------------- THE HIGH COURT OF KERALA, ERNAKULAM KOCHI 682031. REP. BY ITS REGISTRAR (GENERAL). BY ADV. SRI.KRB.KAIMAL, SENIOR ADVOCATE FOR R1 SRI.B.UNNIKRISHNA KAIMAL FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/05/2010, THE COURT ON 5/8/2010 DELIVERED THE FOLLOWING: APPENDIX IN W.P.(C) No.28316/2008 EXT.P1 TRUE COPY OF THE OFFICE MEMORANDUM NO.A2-69236/2002 DATED 17.3.2004 ISSUED BY THE RESPONDENT. EXT.P2 TRUE COPY OF THE OFFICE MEMORANDUM NO.A2-63461/2002 DATED 23.6.2004 ISSUED BY THE RESPONDENT. EXT.P3 TRUE COPY OF REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENT ON 27.6.2007. EXT.P4 TRUE COPY OF OFFICE MEMORANDUM NO.A3.51019/2007 DATED 23.7.2007 ISSUED BY THE RESPONDENT. EXT.P5 TRUE COPY OF OFFICE MEMORANDUM NO.A2-53461/2006(2) DATED 4.8.2007 ISSUED BY THE RESPONDENT. EXT.P6 TRUE COPY OF REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE GRIEVANCE COMMITTEE OF HON'BLE JUDGES ON 10.8.07. EXT.P7 TRUE COPY OF OFFICE MEMORANDUM NO.A2-53461/2006(1) DATED 12.12.2007 ISSUED BY THE RESPONDENT. EXT.P8 TRUE COPY OF OFFICE MEMORANDUM NO.A2-76225/2007 DATED 9.1.2008 ISSUED BY THE RESPONDENT. EXT.P9 TRUE COPY OF REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENT ON 17.1.2008 EXT.P10 TRUE COPY OF OFFICE MEMORANDUM NO.A2-76225/07 DATED 24.3.2008 ISSUED BY THE RESPONDENT. EXT.P11 TRUE COPY OF NOTIFICATION NO.A3-65607/2008 DATED 6.11.2008 ISSUED BY THE RESPONDENT. EXT.P12 TRUE COPY F NOTIFICATION NO.A3-84009/2008 DATED 24.12.2008 ISSUED BY THE RESPONDENT. EXT.P13 TRUE COPY OF NOTIFICATION NO.A2-17251/2009 DATED 23.3.09 ISSUED BY THE RESPONDENT. //TRUE COPY// P.A. TO JUDGE. P.N.RAVINDRAN, J. ------------------------------- W.P.(C) No.28316 of 2008 ------------------------------- Dated this the day of July, 2010 J U D G M E N T The petitioner is presently working as Helper in this Court. He has filed this Writ Petition aggrieved by the non- inclusion of the category of Helper for promotion to the category of Library Assistant. The brief facts of the case are as follows. 2. The petitioner entered service as Peon on 5.11.1987. He was later promoted as Helper. By Ext.P1 memorandum dated 17.3.2004, steps were taken to fill up three vacancies of Library Assistant in the scale of pay of Rs.3050-5630, that arose on the promotion of three Library Assistants as Higher Grade Library Assistants' . By Ext.P1, willingness of SSLC qualified members of the High Court service working in categories having the scale of pay of Rs.2750-4625 or Rs.2650-4150 was sought. The petitioner had not passed the SSLC examination at that point of time, and was therefore ineligible to apply. Later, by Ext.P2 memorandum, dated 23.6.2007, willingness of SSLC qualified members of the High W.P.(C) No.28316/2008 2 Court service working in categories having the same scale of pay as that of Library Assistant (Rs.4990-7990) was sought for appointment as Library Assistant. At that point of time, the petitioner was placed in the scale of pay of Rs.4510-7480, and was therefore, ineligible to apply, though he had passed the SSLC examination. 3. He thereupon submitted Ext.P3 representation, dated 27.6.2007, to the Registrar of this Court requesting that he may be considered for appointment as Library Assistant, though he was drawing salary in the scale of pay of Rs.4510- 7480. In Ext.P3 representation, he pointed out that limiting the opportunity to those drawing salary in the scale of pay of Rs.4990-7990, results in denial of opportunity to persons like him to submit willingness, though they are otherwise entitled. He has also pointed out that as per the Kerala High Court Service Rules, 1970, employees drawing salary in the scale of pay of Rs.2750-4625 (Pre-revised) are eligible to apply for appointment as Library Assistant and that the scale of pay of W.P.(C) No.28316/2008 3 Rs.4510-7480 is the revised scale of pay of the aforesaid pay scale. The request made by the petitioner in Ext.P3 representation was rejected and the decision communicated to him by Ext.P5 office memorandum, dated 4.8.2007. The petitioner was informed that as per the Kerala High Court Service Rules, 1970, promotion can be made from one category or grade of the service to a higher category or grade, irrespective of the scale of pay; that there is no bar to make appointment to the category of Library Assistant by promotion from lower categories carrying the same scale of pay as that of Library Assistant; that as per the orders of the Honourable the Chief Justice, willingness was ascertained only from the members working in categories having the same scale of pay of Library Assistant; that 8 members of the high court service working in lower categories having the same scale of pay of Library Assistant has offered their willingness; that only two vacancies in the category of Library Assistant exist; and that the petitioner who is not working in a category having the same W.P.(C) No.28316/2008 4 scale of pay of Library Assistant was found ineligible to be considered. Aggrieved by Ext.P5 office memorandum, the petitioner submitted Ext.P6 representation, dated 10.8.2007, before the committee for redressal of grievances of the employees of the High Court. By Ext.P7 office memorandum, dated 12.12.2007, the said representation was also rejected. 4. While matters stood thus, by Ext.P8 office memorandum, dated 9.1.2008, willingness of approved probationers in the High Court Service working in the categories of Typist Copyist Grade II and Lift Operator, possessing the qualifications prescribed in the High Court Service Rules, 2007, viz., (1) University Degree (2) Degree of Diploma in Library Science, and from members working in the categories of Attender Grde I (scale of pay Rs.4750-7820), Attender Grade II, Duffadar, Court Keeper and Higher Grade Peon (Scale of pay Rs.4630-7000) who were in service as on 1.1.2007 and possess the qualification prescribed in the High Court Service Rules, 1970, i.e., S.S.L.C. was for appointment as Library Assistant. W.P.(C) No.28316/2008 5 Though the petitioner was an approved probationer working in the category of Helper in the scale of pay of Rs.4630-7000, he was disabled from submitting his willingness in view of the stipulations in Ext.P8 office memorandum. He, therefore, submitted Ext.P9 representation, dated 17.1.2008, to the Honourable the Chief Justice wherein he requested that as he possesses the educational qualifications prescribed in the High Court Service Rules, 1970 and is working as Helper in the scale of pay of Rs.4630-7000, he may also be considered for appointment as Library Assistant. By Ext.P10 office memorandum, dated 24.3.2008, Ext.P9 representation was also rejected on the ground that the post of Helper was excluded from the zone of consideration, due to exigencies of service. In this writ petition, petitioner challenges Exts.P2, P5, P7, P8 and P10, and seeks a declaration that he is eligible and entitled to be considered for promotion to the category of Library Assistant. The petitioner has also prayed for a direction to the respondent to promote him as Library Assistant or to consider him for W.P.(C) No.28316/2008 6 promotion to the category of Library Assistant, pursuant to Exts.P2 and P8 office memoranda. The petitioner contends that exclusion of the category of Helpers from the zone of consideration is arbitrary and discriminatory, and that no cogent and convincing reasons have been given for not considering Helpers for promotion to the category of Library Assistant. 5. A counter affidavit dated 17.11.2008 has been filed on behalf of the respondent. It is stated that as per the Kerala High Court Service Rules, 1970, the post of Library Assistant was included as Category 16A in Division II; that as per the said rules, the method of appointment was by way of promotion, transfer or direct recruitment; that over the years, vacancies of Library Assistant were filled up only by promotion; that under the Kerala High Court Service Rules, 1970, the term 'Promotion' was defined to mean “appointment of a member to a post in the service on a higher scale of pay”; that the definition of the term 'Promotion' was amended with effect from 1.3.1992 as per notification No.A3.11052/96 dated 6.1.2005 read with W.P.(C) No.28316/2008 7 High Court Notification No.A3-11052/96 dated 23.2.2005; that as per the said amendment, 'promotion' means “appointment of a member of any category or grade of the service to a higher category or grade of the service”; and after the amendment of the definition of the term 'promotion', there was no bar in making appointment by promotion from lower category or grade having the same scale of pay. With reference to Ext.P1 office memorandum, it is stated that at that point of time, the petitioner did not possess a pass in the SSLC examination, and was therefore, not eligible to apply. With reference to Ext.P2 memorandum, it is stated that willingness was sought from employees of the High Court who have passed SSLC examination and were working in the post carrying same scale of pay of Library Assistant, that the petitioner was not working in the same scale of pay, and therefore, he was ineligible to apply. It is also stated that his request to consider him for appointment as Library Assistant was rejected by the Honourable the Chief Justice and the decision communicated to him. With reference W.P.(C) No.28316/2008 8 to Ext.P8 memorandum, it is submitted that the petitioner did not fall within the enumerated categories of employees from whom willingness was sought, and therefore, his representation in that regard was rejected by the Honourable the Chief Justice. It is stated that while issuing Ext.P8, the Honourable the Chief Justice had directed to exclude those categories of posts which are having only a low cadre strength considering the exigencies of service and difficulty in getting suitable hands to fill up vacancies in such categories. It is stated that cadre strength of Helper is only three, and therefore, Helpers were excluded from being considered for promotion as Library Assistant. It is also stated that the post of Helper has been included in the zone of consideration for appointment as Lift Operator, which carries the same scale of pay as of Library Assistant, and therefore, it cannot be said that Class IV employees like the petitioner have been denied chances of promotion. 6. I have considered the submissions made at the Bar by the learned counsel appearing on either side. I have also W.P.(C) No.28316/2008 9 gone through the pleadings and materials on record. The main contention raised by the petitioner is that Helpers have been excluded from the zone of consideration for appointment as Library Assistant, though Helpers who have passed the SSLC examination are available in the High Court Service. As per the Kerala High Court Service Rules, 1970, the qualification for appointment to the category of Library Assistant was a pass in the SSLC examination. It was however stipulated that in case of appointment by promotion, the Honourable the Chief Justice may dispense with the qualification in the case of a member found fit and suitable for the post. The methods of appointment prescribed were by way of promotion, transfer or direct recruitment. The pleadings disclose that vacancies of Library Assistant were being filled up only by promotion. The categories from which promotion to the category of Library Assistant has to be made are not specified in the Kerala High Court Service Rules, 1970. In that rule, the term 'promotion' was defined as “the appointment of a member to a post in the W.P.(C) No.28316/2008 10 service on a higher scale of pay”. Therefore, promotion meant appointment to a post carrying a higher scale of pay. The definition of the term 'promotion' was amended later and the amended definition of the term 'promotion' reads as follows. 'Promotion' means “appointment of a member of any category or grade of the service to a higher category or grade of the service.” It is contended that after the amendment of the definition of the term 'promotion', there is no bar in making appointments by promotion from lower category or grade having the same scale of pay. The Kerala High Court Service Rules, 2007, came into force with effect from 1.1.2007. As per the said rules, the qualification for appointment as Library Assistant is a University Degree or a Degree or Diploma in Library Science and the method of appointment is by transfer or by direct recruitment. However, in Rule 20(6) of the Kerala High Court Service Rules, 2007, it is stipulated that for promotion to higher categories, the qualifications prescribed for appointments to various posts as per these Rules will be inapplicable to W.P.(C) No.28316/2008 11 incumbents in service in the lower or feeder categories as on the date of coming into force of new rules, viz., 1.1.2007. It is also stipulated that such persons will be governed by the qualifications prescribed in the repealed Rules for the purpose of promotion. 7. Ext.P8 office memorandum dated 9.1.2008 discloses that the proposal was to fill up vacancies of Library Assistant by appointment by transfer. As per the Kerala High Court Service Rules, 2007, the post of Library Assistant is category 6 in Division II. The method of appointment prescribed in the rule is appointment by transfer or direct recruitment. The qualifications prescribed in the High Court Service Rules, 2007, viz., (1) University Degree (2) Degree of Diploma in Library Science. In my opinion, the petitioner cannot therefore contend that he is entitled to be appointed by promotion to the category of Library Assistant. Consequently, I hold that the petitioner cannot seek or be granted the relief prayed for in the writ petition. W.P.(C) No.28316/2008 12 For the reasons stated above, I hold that there is no merit in the writ petition. The writ petition fails and it is accordingly dismissed. P.N.RAVINDRAN, Judge. nj.