IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH MONDAY, THE 14TH JANUARY 2008 / 24TH POUSHA 1929 WP(C).No. 18057 of 2005(Y) -------------------------------------- PETITIONER: ------------------- S. UDAYAKUMAR, S/O. SREEDHARAN NAIR, RESIDING AT UDYAVILASOM, CHERUVAIKKALL, NEAR HOLY TRINITY SCHOOL, SREEKARIYAM P.O., THIRUVANANTHAPURAM. EMPLOYED AS WATCHMAN, LAL BAHADUR SASTHRI CENTRE FOR SCIENCE & TECHNOLOGY (LBS CENTRE). BY ADV. SRI.B.SATHIQ, SRI.R.S.MADHU. RESPONDENTS: ------------------------ 1. THE DIRECTOR, LBS CENTRE FOR SCIENCE AND TECHNOLOGY, EXTRAPOLICE ROAD, NANDAVANAM, PALAYAM, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF TECHNICAL EDUCATION, THIRUVANANTHAPURAM. 3. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. BY SRI. MATHEWS K. PHILIP, SC. ADV. SRI. P.B. SURESH KUMAR. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.18057/2005-Y: APPENDIX PETITIONER'S EXHIBITS : EXT.P.1: COPY OF THE APPOINTMENT ORDER NO. B2/02/93 DTD. 04/12/93. EXT.P.2: COPY OF THE PROBATION ORDER NO. B2/597/93 DTD. 11/01/96. EXT.P.3: COPY OF THE JTSLC DTD. 01/03/83. EXT.P.4: COPY OF THE DME CERTIFICATE DTD. 19/02/90. EXT.P.5: COPY OF THE G.O. (P) 45/75/H. EDN. DTD. 17/03/75. EXT.P.6: COPY OF THE NOTIFICATION NO. C/4759/01 DTD. 25/09/01. EXT.P.7: COPY OF THE REPRESENTATION DTD. 10/12/98. EXT.P.8: COPY OF THE REPRESENTATION DTD. 17/09/01. EXT.P.9: COPY OF THE REPRESENTATION DTD. 25/09/05. EXT.P.10: COPY OF THE REPRESENTATION DTD. 17/06/04. EXT.P.11: COPY OF THE LETTER NO.C 4/28107/04 DTD. 01/10/04. EXT.P.12: COPY OF THE TRANSFER ORDER DTD. 10/12/1993. EXT.P.13: COPY OF THE LETTER DTD. 30/09/2000. EXT.P.14: COPY OF THE AGENDA. EXT.P.15: COPY OF THE ORDER DTD. 20/02/2002. EXT.P.16: COPY OF THE LETTER DTD. 13/09/1995. EXT.P.17: COPY OF THE LETTER NO. B7/2667/2004 DTD. 20/07/2005. RESPONDENT'S EXHIBITS: NIL. //TRUE COPY// prv. K.M.JOSEPH, J. - - - - - - - - - - - - - - - - - - - - - - - - - WP.(C) No. 18057 of 2005 - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 14th day of January, 2008 JUDGMENT First respondent is LBS Centre for Science and Technology. Petitioner was appointed as watchman vide Ext.P1 dated 6.12.1995. It is provisional and subject to regularisation. By Ext.P2, the appointment of the petitioner was regularised with effect from 6.12.1995. Ext.P5 is the notification dated 17.3.1975, by which method of appointment to the post of Attender performing technical duties in the Technical Education Department is prescribed by the Government of Kerala. The method of appointment provides for appointment by transfer from members of Kerala last grade service employed in the Technical Education Department. It is in the absence of such hands direct recruitment is permitted. The notification provided for pass in 7th standard and JTSLC or ITI or KGCE of City and Guilds Examination in the concerned trade. Ext.P6 is a notification dated 25.9.2001 issued by the first respondent inter alia calling for applications for appointment to the post of tradesman. 23 vacancies are notified. Qualification prescribed is SSLC or equivalent and National Trade Certificate in the concerned trade. Petitioner made Ext.P7 application to the Director. This is followed by Exts.P8, P9 and P10. Ext.P10 is a WPC. 18057/2005. 2 communication addressed by the Senior Joint Director (PS) to the Director. Therein reference is made to Ext.P5. It is also stated that as per G.O.(MS) 69/90/H.Edn dated 16.3.1990 the post of Workshop Attender attached to the Technical Education Department is re-designated as Tradesman. It is also stated that the qualification prescribed for the post of Attender (Technical) and Tradesman are the same. Petitioner has approached this court seeking direction to give the promotional post of tradesman by method of transfer from last grade service, to the petitioner in the light of Rules envisaged in Ext.P5, which is clarified in Ext.P11, and direction is sought to give the promotional post of tradesman by transfer from last grade service to the petitioner in preference to the prospective direct recruits with effect from the date of occurrence of vacancy or at least with effect from 25.9.2001. 2. Counter affidavit is field. Therein the stand taken is as follows inter alia: The Centre is administered by a governing body and an executive committee. Chief Minister is the Chairman of the Governing Body and the Principal Secretary to Government, Higher Education Department is the Chairman of the Executive Committee. Director of the Centre is a Member Secretary. There are five regional centres and 18 sub centres are functioning under the Centre, There are two Engineering WPC. 18057/2005. 3 Colleges under the Centre. It is stated that the petitioner is re-designated as Peon. It is the further case of the respondent that the Executive Committee has framed rules for various posts in the Centre and it has been approved by the Governing Body on 18.11.1998. These rules are applicable for appointment and promotion to various posts in the Centre. These rules are not applicable to the non-teaching staff working in the Engineering Colleges under the Centre. It is stated that the Governing Body, in its meeting held on 18.11.1998 have decided to treat the Centre and Engineering Colleges as separate entities and as such the employees of the Centre cannot be transferred to the Engineering Colleges under the Centre and vice versa. Separate seniority lists are maintained. It is admitted that the qualification possessed by the petitioner may be sufficient for promotion to the post of tradesman as per the special rules applicable to the Engineering Colleges. Further as per the special rules of the Centre, the post of tradesman does not exist and an employee of the Centre cannot be appointed or promoted to any post in the Engineering Colleges. 3. Reply affidavit is filed by the petitioner, wherein it is inter alia stated as follows: Petitioner was transferred while working as watchman to the Engineering College, Kasaragode, and later transferred back to LBS Centre WPC. 18057/2005. 4 in 1995. It is further stated that the Governing Body of the first respondent in its meeting on 18.11.1998 proposed to treat the Centre and Engineering Colleges as separate bodies. When it was forwarded to the Government, the Government observed that it is unwarranted and if separate society is registered for the college, the college will no more be under the first respondent LBS Centre (Ext.P13). Pursuant to Ext.P13, it is stated that the on 22.10.2001 a general body meeting was held and it was decided to accept the decision of the Government under Ext.P13. Ext.P15 is produced as the order of the Government to show that there was a common governing body. Ext.P16 is relied upon to show that even prior to 18.11.1998 petitioner was voicing his right. Ext.P17 is produced to show the availability of the sanctioned posts in Kasaragode Engineering College. 4. I heard learned counsel for the petitioner and learned counsel appearing on behalf of the respondents. Petitioner is appointed as Wathman and later regularised as evidence from Ext.P2. Thereafter the post of the petitioner was re-designated as Peon. Therefore petitioner can be said borne on the last grade service. The post of attender has been re-designated as tradesman. But the cardinal question is whether the petitioner is right in contending that when Ext.P6 notification was issued calling for applications, petitioner was also entitled to be considered for appointment to WPC. 18057/2005. 5 the post of tradesman. It may be true that the petitioner is having the necessary qualification for appointment as tradesman. The said qualification is not disputed by the respondents. But the question would be whether the petitioner is correct in contending that pursuant to Ext.P13 a decision had been taken by the Governing Body, under which the posts in the Engineering Colleges and posts in the Centre are unified and by virtue of there being a common Governing Body, the petitioner can be said to have become entitled for appointment to the post of tradesman. There is no dispute raised in the reply affidavit that there is no post of tradesman as per the rules framed for the employees of the Centre. Therefore the claim of the petitioner, who is admittedly appointed for the centre is in respect of a post which is non-existing in the cadre for the centre. A perusal of Ext.P15 would show only that there is a decision to have a common governing body. The fact that there is a common governing body for the centre and for the colleges would not mean that the employees of the colleges and the centre cannot be provided with different sets of rules regarding the promotional avenues. Ext.P14 is only the agenda for the 19th meeting of the Governing Body. The actual decisions taken in the meetings are as stated in Ext.P15. There is nothing in Ext.P15, which takes away the effect of the decision of the Governing Body, by which there are separate provisions in respect of WPC. 18057/2005. 6 the employees of the centre. In so far as there is no post of tradesman in respect of the centre, and post of tradesman is in the Colleges, it may not be open to the petitioner to seek a writ of mandamus for promotion to the post of tradesman. In such circumstances, I find that there is no merit in the writ petition. The writ petition fails and it is dismissed. (K.M. JOSEPH, JUDGE) sb