IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 20TH OCTOBER 2008 / 28TH ASWINA 1930 OP.No. 5972 of 2001(J) -------------------------------- PETITIONER: ------------------- A. VITTALA PAI, AGED 45 YEARS, S/O. ARUJUNA PAI, LIBRARY ASSISTANT/ LABORATORY ASSISTANT, S.D. COLLEGE, ALLEPPEY, RESIDING AT PUTHEN MADAM, NORTH GATE, A.N. PURAM, ALLEPPEY. BY ADV. SRI.T.C.GOVINDA SWAMY, ADV. SRI.K.M.ANTHRU. RESPONDENTS: ----------------------- 1. THE MANAGER, S.D. COLLEGE, ALLEPPEY. 2. THE PRINCIPAL, S.D. COLLEGE, ALLEPPEY. 3. THE UNIVERSITY OF KERALA, REPRESENTED BY THE REGISTRAR, TRIVANDRUM. 4. THE DIRECTOR OF COLLEGIATE EDUCATION, VIKAS BHAVAN, TRIVANDRUM. 5. THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, CENTRAL ZONE, ERNAKULAM. 6. SHRI. SANTHOSH KUMAR, LIBRARY ASSISTANT/ LABORATORY ASSISTANT, S.D. COLLEGE, ALLEPPEY. O.P. NO. 5972/2001-J: 7. THE STATE OF KERALA, REPRESENTED BY THE COMMISSIONER AND SECRETARY, HIGHER EDUCATION (D. DEPARTMENT), GOVERNMENT SECRETARIAT, TRIVANDRUM. R4, R5 & R7 BY GOVERNMENT PLEADER SRI. M.R. SABU, R1 & R2 BY ADV. SRI.K.ANAND, ADV. SMT.LATHA KRISHNAN, R3. BY ADV. SRI.M.K.CHANDRAMOHAN DAS, SC, KERALA UTY., R6. BY ADV. SRI.S.SREEKUMAR. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 20/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P. NO. 5972/2001-J: ORDER ON I.A. NO. 13704/2005 IN O.P. NO. 5972/2001-J DISMISSED 20/10/2008. SD/- S. SIRI JAGAN, JUDGE. APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE JUDGMENT IN APPEAL NO.3/92 DTD. 03/07/93 OF THE KERALA UNIVERSITY TRIBUNAL. EXT.P.2: COPY OF THE JUDGMENT DT. 25/01/93 IN O.P. NO. 9211/93 OF THIS HON'BLE COURT. EXT.P.3: COPY OF THE NOTIFICATION IN PART IB OF THE KERALA GAZETTE UNDER NO.ERI/ELIGI. TEST NO. 12/98/LGS/ATTENDER/97/EQ DT. 12/02/98 EXT.P.4: COPY OF THE LETTER NO. EF II (1) 6566/94/EW DTD. 16/04/98. EXT.P.5: COPY OF THE ORDER NO. E2/NTS/13/10/PROP/2000 DT. 01/07/2000. RESPONDENTS' EXHIBITS: EXT.R6.A: COPY OF THE ORDER DTD. 10/01/1992 OF R.1. EXT.R6.B: COPY OF THE ORDER DTD. 01/07/1992 OF R.1. EXT.R6.C: COPY OF THE ORDER DTD. 01/03/2000 OF R.1. EXT.R6.D: COPY OF THE ORDER DTD. 01/05/2000 OF R.1. EXT.R6.E: COPY OF THE ORDER DTD. 01/07/2000. EXT.R6.F: COPY OF THE ORDER DTD. 01/03/2001 OF R.1. EXT.R6.G: COPY OF THE CERTIFICATE DTD. 04/09/2002 ISSUED BY PUBLIC SERVICE COMMISSION. EXT.R6.H: COPY OF THE LETTER DTD. 17/01/2003 OF PUBLIC SERVICE COMMISSION. O.P. NO. 5972/2001-J: EXT.R6.I: COPY OF THE CERTIFICATE DTD. 30/05/2005 ISSUED BY PUBLIC SERVICE COMMISSION. EXT.R6.J: COPY OF THE ORDER DTD. 17/03/2001 BY THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION. EXT.R6.K: COPY OF THE ORDER DTD. 17/03/2003 BY DEPUTY DIRECTOR OF COLLEGIATE EDUCATION. //TRUE COPY// P.A. TO JUDGE. prv. S. SIRI JAGAN, J. ------------------------------------ O.P.No.5972 OF 2001 ---------------------------------------- Dated this the 20th day of October, 2008 JUDGMENT The petitioner, the 6th respondent and another person by name, Sri. M. Subramania Iyer applied for the post of Last Grade Servant in the 1st respondent's College. The 6th respondent and the said Subramania Iyer were selected and appointed. The petitioner challenged the same before the University Appellate Tribunal, in which by Ext.P1 judgment, the Tribunal set aside the appointment of the 6th respondent and the said Subramania Iyer on the ground that at the relevant time, they had not completed 18 years of age which was the age qualification applicable. The 6th respondent and the said Subramaniya Iyer challenged the same before this Court in O.P.No.9211/93. During the pendency of that original petition, the said Subramaniya Iyer left the institution. Consequently, there was a vacancy subsisting in the post of Last Grade Servant. This Court, by Ext.P2 judgment in that O.P., held that in the said circumstances, it is not necessary to continue the original petition and the petitioner herein can be O.P.No.5972/2001 2 accommodated in the vacancy left by the said Subramaniya Iyer. However, that was subject to the right of the petitioner herein to agitate his claim for seniority over the 6th respondent herein. Pursuant thereto, the petitioner was appointed as Last Grade Servant. For further promotions to the posts of Laboratory Assistant, Library Assistant etc., those who had not passed SSLC were expected to pass a test conducted by the PSC for that purpose. The petitioner passed that test in 1996. The petitioner was subsequently promoted in leave vacancy. However, by Ext.P6 order, on termination of the vacancy, on account of the incumbent joining duty, the petitioner was again reverted as Last Grade Servant. In the meanwhile, the 6th respondent had already been promoted as Library Assistant. The petitioner contends that the petitioner is senior to the 6th respondent and the 6th respondent obtained the mandatory test qualification only in 2003 and therefore, he could not have been promoted in the regular post in preference to the petitioner. It is under the above circumstances, the petitioner has filed this original petition seeking the following reliefs: “i) declare that the petitioner is eligible to be considered for promotion as Attender/Library Assistant/Laboratory Assistant in preference to those O.P.No.5972/2001 3 who have not passed in the eligibility test and those who do not have SSLC as the minimum qualification and issue a writ of mandamus or other appropriate writ order or direction commanding the respondents 1, 2 and 5 accordingly. ii) declare that the petitioner is entitled to be treated as senior to the 6 th respondent in the cadre of Last Grade Servants and issue a writ of mandamus or other appropriate writ order or direction commanding official respondents to treat the petitioner accordingly and to grant him all the consequential benefits thereof. iii) declare that the attempt on the part of the 5th respondent in approving the promotion of the 6 th respondent as Attendant/Library Assistant/Laboratory Assistant in preference to the petitioner is arbitrary, discriminatory and illegal and issue a writ of mandamus commanding the said respondents accordingly. iv) Issue a writ of mandamus or other appropriate writ order or direction commanding the 5 th respondent to approve the promotion of the petitioner as Attendant/Library Assistant/Laboratory Assistant on regular basis with effect from the date of promotion of the 6 th respondent or any others who had not qualified the eligibility test”. 2. Respondents 5 and 6 have filed counter affidavits controverting the contentions of the petitioner in the original petition. I have heard both sides. 3. The first question to be decided is as to who is the senior, whether the petitioner or the 6th respondent. If Ext.P1 had survived, certainly the petitioner would have been senior O.P.No.5972/2001 4 to the 6th respondent. However, Ext.P1 stands modified by Ext.P2 judgment of this Court, in which without disturbing the 6th respondent, the petitioner was directed to be accommodated in the vacancy, which was left by Sri. Subramaniya Iyer. In the rank list prepared for selection to the post of Last Grade Servants, based on which the appointments have been made, the petitioner was 11th in rank and the 6th respondent was the 7th . That being so, going by the rank list, the 6th respondent is senior to the petitioner. The 6th respondent has produced documents to show that he was actually promoted as Library Assistant and then as L.D. Store Keeper by Exts.R6(c) to R6(f) and the petitioner never challenged those promotions and therefore, it is too late in the day for the petitioner to claim seniority over the 6th respondent and for promotion in preference to the 6th respondent. The 6th respondent would further contend that although he passed the test conducted by the PSC in 2001 for the purpose of promotion to the post of Library Assistant, it was not necessary for him to pass that test since that test was prescribed only to those persons, who did not pass the SSLC. According to the 6th respondent, he had passed the SSLC as O.P.No.5972/2001 5 early as in 1986. Therefore, the contention of the petitioner is on a wrong premise, is the submission made by the learned counsel for the 6th respondent. 4. In view of the above facts, which are not now disputed by the petitioner, I am unable to hold that the petitioner is senior to the 6th respondent and that the petitioner is entitled to be promoted in preference to the 6th respondent. Therefore, the prayers to that extent cannot be allowed. 5. However, the petitioner points out that in spite of availability of vacancies, the petitioner had not been favoured with a promotion. Although even if the 6th respondent was senior, at least in the vacancy which arose subsequent to the promotion of the 6th respondent the petitioner should have been promoted, contends the petitioner. The petitioner also submits that ever since his appointment as Last Grade Servant, he is stagnating as Last Grade Servant and he is not even given grade promotion. I am of opinion that if after the 6th respondent was promoted any vacancy had arisen, respondents 1 and 2 were bound to consider the petitioner for promotion to that post, since the petitioner was the next man in line for promotion. O.P.No.5972/2001 6 Accordingly, this original petition is disposed of with a direction to respondents 1 and 2 to consider whether there arose any vacancy to which the petitioner could have been promoted after the 6th respondent was promoted and consider the petitioner for promotion to that vacancy, if available. Respondents 1 and 2 shall also consider whether the petitioner has been denied any grade promotion, which was rightly due to the petitioner and pass appropriate orders regarding the same. Orders in that regard shall be passed, as expeditiously as possible, at any rate, within a period of two months from the date of receipt of a copy of this judgment, by the 1st respondent. Needless to say, such consideration shall be only if the petitioner possesses the required qualification for such promotion. S. SIRI JAGAN, JUDGE Acd O.P.No.5972/2001 7