IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 9TH JUNE 2009 / 19TH JYAISHTA 1931 WP(C).No. 6440 of 2007(N) ------------------------------------- PETITIONER: ------------------- SRI.D. SUDHEESHKUMAR, LASCAR, M.I. SECTION OFFICE, CHERTHALA, RESIDING AT VISWATHI BHAVAN, VALAMANGALAM, THURAVOOR P.O., CHERTHALA. BY ADVS. MR.P.SANTHOSH KUMAR (PANAMPALLI NAGAR), MR.LUIZ GODWIN D'COUTH. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE COMMISSIONER OF SALES TAX, PUBLIC OFFICE, THIRUVANANTHAPURAM. 3. THE DEPUTY COMMISSIONER OF SALES TAX (INTELLIGENCE), THRIKKAKARA, KAKKANADU, KOCHI. 4. THE DEPUTY COMMISSIONER, COMMERCIAL SALES TAX COMPLEX, THEVARA, ERNAKULAM. 5. THE DEPUTY DIRECTOR OF EMPLOYMENT, REGIONAL OFFICE, ERNAKULAM, KAKKANADU. 6. THE DISTRICT EMPLOYMENT OFFICER, CIVIL STATION, KAKKANADU. 7. THE ASSISTANT ENGINEER, MINOR IRRIGATION SECTION, CHERTHALA, ALAPPUZHA DISTRICT. R1 TO R6 BY GOVERNMENT PLEADER SMT. ANU SIVARAMAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09/06/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. P.N.RAVINDRAN, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= W.P.(C) No. 6440 of 2007 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 9th day of June, 2009 JUDGMENT Heard Sri.P.Santhoshkumar, the learned counsel appearing for the petitioner and Smt. Anu Sivaraman, the learned Senior Government Pleader appearing for the respondents. 2. The petitioner is presently working as a Lascar in the Minor Irrigation Department. He entered service on 23-1-2006 on advice by the Kerala Public Service Commission . As per the Special Rules, the method of appointment of Drivers in various departments is by promotion from any other class or category in the General Subordinate Service or by transfer from any other service or in the absence of suitable candidates for appointment by promotion or by transfer, by direct recruitment. The Note to rule 5 of the Special Rules provided that the practical test for candidates seeking appointment by direct recruitment will be conducted by the Kerala Public Service Commission. The practical test for candidates seeking W.P.(C) No. 6440/07 2 appointment by transfer or promotion was to be conducted by the Coordinating Agency specified in G.O.(P) No.202/72/PD dated 22-5-1972. 3. The special rules were amended by G.O.(P) No.23/2003/P&ARD dated 14-8-2003. As per the amended special rules, appointments by promotion/transfer and by direct recruitment have to be made in the ratio of 1:3. The Note to rule 5 was deleted. As a result, the practical test for appointment by transfer/promotion and by direct recruitment has to be conducted by the Kerala Public Service Commission. Overlooking this amendment, which came into force on 14-8-2003, the Government permitted District Employment Officers to conduct the practical test in terms of G.O.(P) No.202/72/PD dated 22-5-1972. A selection was conducted in which the petitioner participated. He was selected and included in the list as Sl. No. 4. There were admittedly four vacancies. All the persons ranked above the petitioner were appointed as Drivers. The petitioner was not appointed. This writ petition was thereupon filed seeking a writ in the nature of mandamus commanding the respondents to appoint the petitioner as Driver in one of the vacancies existing in the offices of respondents 3 and 4. 4. The fact that a selection was conducted on 4-5-2005 is not in dispute. It is also not in dispute that three persons ranked above the W.P.(C) No. 6440/07 3 petitioner were appointed by transfer as Drivers. The short question that arises for consideration in this writ petition is whether in the light of the stipulations in the amended special rules, the petitioner's claim for appointment by transfer is tenable, since the practical test was not conducted by the Kerala Public Service Commission. 5. As per the special rules as it stood prior to 14-8-2003, the District Employment Officer, the Coordinating Agency specified in G.O.(P) No.202/72/PD dated 22-5-1972 was competent to conduct the practical test to select candidates for appointment by transfer or promotion as Drivers.. With the amendment of the special rules that came into force with effect from 14-8-2008, the District Employment Officer ceased to be the Co- ordinating Agency. Thereafter the practical test is to be conducted by the Kerala Public Service Commission. The petitioner was admittedly not selected after following the prescribed procedure. Therefore, the selection of the petitioner was not in accordance with the Special Rules. The mere fact that persons selected along with the petitioner have been appointed will not entitle the petitioner to contend that though he was selected in violation of the amended Special Rules, he should be given appointment by transfer as Driver. The claim made by the petitioner is not sustainable, in the light of the amended Special Rules. The reliefs prayed for by the petitioner W.P.(C) No. 6440/07 4 cannot therefore be granted. I accordingly hold that there is no merit in this writ petition. The writ petition fails and is dismissed without prejudice to the right of the petitioner to be considered for appointment by transfer as per the Special Rules. P.N.RAVINDRAN, JUDGE. mn.