IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 27TH FEBRUARY 2009 / 8TH PHALGUNA 1930 WP(C).No. 2009 of 2009(L) ----------------------------------- PETITIONER(S): ----------------------- S.GOPAKUMAR, FOREMAN (WORKSHOP), GOVERNMENT PRESS, SHORANUR. BY ADV.MR.ELVIN PETER P.J. RESPONDENT(S): ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PRINTING, GOVERNMENT CENTRAL PRESS, THIRUVANANTHAPURAM. 3. C.R.VIJAYAN, FOREMAN (WORKSHOP) GOVERNMENT PRESS, MANNANTHALA, THIRUVANANTHAPURAM. ADV. MR.SAIGI JACOB PALATTY FOR R3 GOVERNMENT PLEADER MR.ANTONY MUKKATH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.2009/2009 APPENDIX PETITIONERS EXHIBITS P1:- COPY OF THE ORDER DT. 28.6.07 OF THE 2ND RESPONDENT ALONG WITH THE RELEVANT EXTRACT OF THE SENIORITY LIST OF EMPLOYEES. P2:- COPY OF THE ORDER DT. 15.3.85 ISSUED BY THE 2ND RESPONDENT. P3:- COPY OF THE ORDER G.O. DT. 12.8.05 ISSUED BY THE GOVERNMENT. P4:- COPY OF THE REPRESENTATION DT. 30.7.08 FILED BY THE PETITIONER BEFORE THE IST RESPONDENT. P5:- COPY OF THE JUDGMENT DT. 20.10.08 IN WA. NO.479/08 OF THIS HONOURABLE COURT. P6:- COPY OF THE ORDER G.O. DT. 15.1.09 ISSUED BY THE IST RESPONDENT. /TRUE COPY/ P.A. TO JUDGE tss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 2009 of 2009-L - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 27th day of February, 2009. JUDGMENT The writ petition is filed for quashing Ext.P6 order. 2. Heard the learned counsel for the petitioner, the learned Government Pleader and the learned counsel appearing for the third respondent. 3. As per Ext.P6 order, the Government found that the third respondent will have to be considered for promotion to the post of Chief Foreman (Workshop) in preference to the petitioner. The said order was passed pursuant to the direction contained in the judgment dated 15.10.2008 in W.P.(C) No.26214/2008. There is serious dispute between the petitioner and the third respondent regarding the scope and effect of the judgment. The petitioner contends that the third respondent is not qualified for promotion in accordance with Ext.P2 Government Order. The learned counsel for the third respondent contends that in the light of the judgment of the Division Bench, he is entitled to be promoted. 4. The post in question to be filled up is that of Chief Foreman (Workshop) in Workshop Section. The Government had framed special wpc 2009/2009 2 rules for the Kerala Government Presses Subordinate Service. The Department of Workshop Section is shown as Branch X in the above Special Rules with seven categories of posts.. The post of Foreman (Workshop) is the highest post in the hierarchy in the Subordinate Service. The qualification prescribed under Rule 4 of the Special Rules for the post of Foreman (Workshop) is a pass in SSLC or equivalent qualification and Diploma in Mechanical, Electrical or Electronics Engineering of a recognised University or in the absence of persons possessing the qualification specified above, then persons possessing National Trade Certificates in different Trades mentioned therein were eligible for promotion. 5. Earlier, there was a dispute regarding the ratio of 1 : 1 between Diploma holders and Certificate holders in almost all the Branches. This was settled by a Full Bench of this court in Subaida Beevi v. State of Kerala (2005 (1) KLT 426), wherein the ratio was upheld. It is averred that the same has been upheld by the Hon'ble Supreme Court in Civil Appeal Nos.322 and 323 of 2007. Thereafter, a revised seniority list has been published as per Ext.P1. In the Workshop Section in the category of Foreman, the petitioner is shown as serial No.8 and the third respondent wpc 2009/2009 3 is shown as serial No.7. The petitioner is having Diploma in Mechanical Engineering and the third respondent is having Diploma in Electrical Trade. 6. Ext.P2 is the order dated 11.12.1984 passed by the Government re- organising the Workshop Section into three separate units called Workshop, Electrical and Carpentry. the petitioner is relying upon para 3 of the said order which provides for the principles for appointment for the post of Foreman (Workshop). Accordingly, the petitioner contends that only a person having qualification in Mechanical Engineering, can be appointed as Foreman (Workshop) and hence the third respondent is not qualified. 7. The post of Foreman (Electrical) and Foreman (Workshop) were re-designated as Chief Foreman (Electrical) and Chief Foreman (Workshop) as per Govt. Order dated 1.6.1997. There was a dispute between the third respondent and one Shri M. Krishnan when the post of Chief Foreman (Workshop) was filled up by promoting Shri M. Krishnan who was serial No.4 in Ext.P1. Ext.P3 is the order passed by the Government while disposing of the dispute between the parties. Therein, it was held that since the third respondent is having Diploma in Electrical Engineering, the same cannot be considered as suitable qualification for promotion to the posts in Workshop Section. He challenged the same in Writ Petition No.26269/2005 wpc 2009/2009 4 which was dismissed. The present vacancy arose when Shri M. Krishnan retired on 31.11.2008. The petitioner filed Ext.P4 representation seeking for promotion. This court in W.P.(C) NO.26214/2008 filed by him, directed the Government to pass orders on Ext.P4 representation after affording an opportunity of being heard to the petitioner as well as the third respondent. Ext.P5 is the judgment in Writ Appeal No.479/2008 filed by the third respondent against the dismissal of Writ Petition No.26269/2005. In the above judgment, it was held that the promotion of Shri M. Krishnan cannot be challenged by the third respondent herein, as Shri M. Krishnan was senior in the category of Foreman (Workshop). It was clarified further that even though he was posted in the Workshop, since he has passed Diploma in Electrical Engineering, Diploma has to be counted as his qualification from 1994 onwards. It was directed that since the third respondent has got Diploma in Electrical Engineering, he cannot be treated as a mere I.T.I. holder and he should be treated as Diploma holder from 1994 onwards. 8. Presently, Ext.P6 is the order passed by the Government in regard to the competing claims of the petitioner and the third respondent. After referring to the contentions of the parties, the representation was disposed of stating that in the light of the judgment in Writ Appeal No.479/2008, the third respondent cannot be treated as a Certificate holder and he is entitled wpc 2009/2009 5 to the benefits of a Diploma holder for all purposes after 1994. Hence, the third respondent who is senior to the petitioner, will have to be considered for the post of Chief Foreman (Workshop) in preference to the petitioner. 9. Learned counsel for the petitioner contended that the basic question raised by him is whether in the absence of Diploma in Mechanical Engineering, whether the third respondent who is having only Diploma in Electrical Engineering, could be appointed as Chief Foreman (Workshop). It is pointed out that in Ext.P6, the said question has not been decided at all. It is further pointed out that the first respondent has not considered the true effect of the judgment in Writ Appeal No.479/2008. The only effect of the judgment is that the third respondent cannot be considered as Certificate holder after he obtained the Diploma qualification. It is pointed out that a reading of the the judgment will show that the only direction is to treat him as having obtained Diploma in Electrical Engineering from 1994 onwards. Mere seniority alone is not the criteria and going by Ext.P2, only a person who is having diploma in Mechanical Engineering, can be appointed as Chief Foreman (Workshop). 10. The third respondent has filed a counter affidavit opposing the prayers of the petitioner. It is pointed out that as far as the post of Chief Foreman is concerned, there are no Special Rules and the persons who hold wpc 2009/2009 6 the post of Foreman are promoted as Chief Foreman based on the service seniority. The third respondent is far senior to the petitioner in the post of Foreman (Workshop). The Special Rules only require Diploma in Mechanical Engineering, Electrical Engineering or Electronics Engineering to the post of Foreman (Workshop) and therefore the third respondent is entitled to be treated as a Diploma holder. Even Diploma in Engineering will entitle a person for promotion in Branch X of the Workshop Section, but in Electrical Section only a Diploma in Electrical Engineering is preferred. Therefore, going by the seniority, he alone can be promoted. 11. The Government Order, Ext.P6 does not enter any finding regarding the qualification required for the post of Chief Foreman (Workshop) and whether the third respondent or the petitioner satisfies the same. In Ext.P5 judgment, the direction is to treat him as a Diploma holder from 1994 and not to treat him as a mere I.T.I. holder. The petitioner is relying upon Ext.P2 to contend that the post of Foreman (Workshop) can be filled up only by a person who is having qualification in Mechanical Engineering, as he will have to attend to repair of machines as well as advice the Mechanics in the repairs. It is pointed out that the post of Chief Foreman is an upgraded post for the post of Foreman. Therefore, in the absence of Special Rules, Ext.P2 will apply, as executive orders governing wpc 2009/2009 7 the matter will be in force in the absence of Special Rules. 12. In Ext.P6, the view taken is that the third respondent being senior to the petitioner, will have to be considered for promotion to the post of Chief Foreman (Workshop) in preference to the petitioner. Whether the qualification of the third respondent in Electrical Engineering Diploma is sufficient or not, is not considered in Ext.P6. Therefore, the moot question is whether the seniority alone is the criteria or the required qualification, if any, should be satisfied. 13. In that view of the matter, Ext.P6 is quashed. As the matter has to be considered afresh by the Government in the light of the various aspects pointed out above, there will be a direction to the first respondent to consider and pass orders in the matter afresh, within a period of six weeks from the date of receipt of a copy of this judgment after hearing all parties including the petitioner and third respondent. The writ petition is allowed as above. (T.R. Ramachandran Nair, Judge.) kav/