IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 17TH JANUARY 2008 / 27TH POUSHA 1929 WA.No. 140 of 2008() -------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.4545/2007 Dated 17/10/2007 .................... APPELLANT: PETITIONER: ---------------------------------------- T.C.SASIKUMAR, SENIOR SUPERINTENDENT, STATE WATER TRANSPORT DEPARTMENT, REGIONAL OFFICE, CHANGANACHERRY. BY ADV. SRI.M.V.BOSE SRI.VINOD MADHAVAN SMT.NISHA BOSE RESPONDENTS: RESPONDENTS: ------------------------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GOVERNMENT (D) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR, DIRECTORATE OF STATE WATER TRANSPORT DEPARTMENT, ALAPPUZHA. 3. SHAJI V.NAIR, FINANCE MANAGER, PLANTATION CORPORATION OF KERALA LTD., KOTTAYAM. BY GOVERNMENT PLEADER SRI. BENNY GERVASIS THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 17/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & P.N. RAVINDRAN, JJ. --------------------------------------------------------------- W.A.NO.140 OF 2008 -------------------------------------------------------------- Dated this the 17th day of January, 2008. JUDGMENT Balakrishnan Nair, J: The petitioner is a senior Superintendent working under the State Water Transport Department. The writ petition was filed by him challenging Ext.P12 circular issued by the Government on 17.01.2007 inviting applications from volunteers for appointment on deputation to the post of Director of Water Transport Department. As per the Special Rules, the method of appointment to the said post is by promotion from Kerala State Water Transport Service (Administration Wing). The said service consists of three categories:- (1) Director (2) Personal Assistant to Director (3) Works Manager. The petitioner does not belong to the said service. Therefore, he cannot claim appointment by promotion. There is another method of appointment which is appointment by transfer to fill the post of Director and the petitioner is eligible to be considered for appointment by that method. This Court, by Ext.P5 judgment directed to consider the claim of the petitioner in this W.A.NO.140/2008 . 2 regard. The Government considered his claim and held that the petitioner is ineligible for promotion by Ext.P7 order dated 30.9.2006. The relevant portion of the order reads as follows: “Though the Special Rules also provides for appointment by transfer from any other service the petitioner cannot be considered for appointment by transfer as his CR for the year 2006 (up to 19.09.2006) reveals that he is not suitable for appointment to a responsible post. His performance during the period was rated by the reporting officer as very poor and unsatisfactory. In the above circumstances, the claim of the petitioner Shri. T.C. Sasikumar, cannot be considered for promotion to the post of Director, State Water Transport Department. This order is issued in compliance of the directions of Hon'ble High Court in the Judgment read as 3rd paper above and the order dated 30.08.2006 of the Hon'ble High Court read as 4th paper above.” 2. Later, Government issued Ext.P12 circular inviting volunteers for appointment by deputation to the post of Director. As mentioned earlier, the writ petition was filed challenging the said circular contending that appointment by deputation is not a method contemplated under the Special Rules. The respondents resisted W.A.NO.140/2008 . 3 the writ petition contending that Rule 9 B of Part II KS & SSR permits filling up of the posts in any service by deputation. It was also contended that the Government has taken a decision to amend the Special Rules, so far as it concerns, the qualification and method of appointment to the post of Director of Water Transport. It was also decided that pending finalisation of the amendment, the post need be filled up only by deputation. The learned Single Judge considered the rival contentions. Relying on Rule 9B of the General Rules mentioned above, the learned Single Judge held that appointment by deputation is a permissible method and dismissed the writ petition. 3. We hold that the same was done rightly. The learned Single Judge also upheld the decision of the Government not to fill up the post regularly pending finalisation of the amendment to the Rules. We find nothing illegal with the said decision of the learned Single Judge. The appointing authority should be conceded the power to decide not to fill up the post on valid grounds. If the Government decides not to fill up the post of the Director, pending finalisation of the amendment, the said decision cannot be described as without jurisdiction. See the decision of the W.A.NO.140/2008 . 4 Apex Court in Dr. K. Ramulu v. Dr. S. Suryaprakash Rao (1997 (3) SCC 59) In the result, we find nothing illegal with the decision of the Government or with the judgment of the learned Single Judge affirming the same. We agree with the reasons and conclusions of the learned Single Judge. Accordingly, the writ appeal is dismissed. K. BALAKRISHNAN NAIR, JUDGE. P.N. RAVINDRAN, JUDGE. cl W.A.NO.140/2008 . 5