IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 23RD JULY 2009 / 1ST SRAVANA 1931 WP(C).No. 23622 of 2007(K) -------------------------- PETITIONER(S): ------------------------- 1. SAJEEV M.P.(D/M 1010), DRIVER MECHANIC, FIRE AND RESCUE STATION, GURUVAYUR. 2. JOMY K.M.,(D/M 1011), DRIVER MECHANIC, FIRE AND RESCUE STATION, KALPATTA. BY ADVS. MR.K.JAJU BABU SMT.M.U.VIJAYALAKSHMI RESPONDENT(S): ------------------------- 1. THE COMMANDANT GENERAL, FIRE AND RESCUE SERVICES, HEADQUARTERS, HOUSING BOARD JUNCTION, TRIVANDRUM-1. 2. SRI. S.GOPAKUMAR(D/M 1015), FIRE AND RESCUE STATION, CHENGALCHOOLA, TRIVANDRUM. 3. SRI. JOHN.G.PLAKKAL(D/M 1042), FIRE AND RESCUE STATION, MUVATTUPUZHA. R1 BY GOVERNMENT PLEADER SMT.SMITHA SUKUMAR R2 & R3 BY MR.KRB.KAIMAL, SENIOR ADVOCATE, MR.SAIGI JACOB PALATTY. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/07/2009, ALONG WITH WPC NO. 2684 OF 2008 THE COURT ON DELIVERED THE FOLLOWING: W.P.(C) NO.23622/2007 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE RELEVANT EXTRACT OF ORDER NO.61/95 DTD. 23.8.95 ISSUED BY THE IST RESPONDENT. P2:- COPY OF THE RELEVANT EXTRACT OF SERVICE ORDER NO.25/02 DTD. 23.1.02 ISSUED BY THE IST RESPONDENT. P3:- COPY OF THE REPRESENTATION SUBMITTED BY THE 2ND PETITIONER BEFORE THE IST RESPONDENT DTD. 17.10.05. P4:- COPY OF THE REPRESENTATION SUBMITTED BY THE 2ND PETITIONER BEFORE THE IST RESPONDENT DTD. 12.10.06. P5:- COPY OF THE ORDER NO.A2-3298/07 DTD. 25.7.07 ISSUED BY THE IST RESPONDENT. P6:- COPY OF THE RELEVANT EXTRACT OF THE RESULT PUBLISHED BY THE IST RESPONDENT DTD. 10.12.07. RESPONDENT'S EXHIBITS R3(a):- COPY OF THE ORDER NO.A3-4099/97 DTD. 28.7.97 (SERVICE ORDER NO.87/97) OF THE IST RESPONDENT. R3(b):- COPY OF THE ORDER NO.A3-9195/96 DTD. 28.7.97 OF THE IST RESPONDENT. R3(c):- COPY OF THE ORDER NO.A7-10677/97 DTD. 24.12.97 ISSUED BY THE DIRECTOR (TECHNICAL), FIRE SERVICE HEAD QUARTERS. R3(d):- COPY OF THE ORDER NO.A2-3464/98 DTD. 11.8.98 (SERVICE ORDER NO.103/98) OF THE IST RESPONDENT. R3(c):- COPY OF THE ORDER NO.B2-7960/99 DTD. 3.4.00 OF THE IST RESPONDENT. R3(f):- COPY OF THE ORDER NO.A1-466/2000 DTD. 29.1.2000 OF THE IST RESPONDENT. TRUE COPY P.S. TO JUDGE tss S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W. P (C) Nos. 23622/2007 & 2684/2008 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 23rd July, 2009. J U D G M E N T The issue involved in these two writ petitions are intrinsically interconnected and therefore they are heard together and are disposed of by this common judgment. W.P(C) No. 2684/2008 is taken as the leading case. The respondents 2 and 3 in that writ petition are the petitioners in W.P(C) No. 23622/2007. Reference to the rank of parties and exhibits in this judgment are as obtaining in W.P(C) No. 2684/2008 unless it is specifically stated otherwise. 2. Both the petitioners and respondents 2 and 3 are borne on the Kerala Fire and Rescue Service Department, formerly known as the Fire Force Department. Appointment, promotion etc., of the subordinate service in that department are governed by the Kerala Fire Subordinate Service Special Rules, 1988. The issue relates to promotion to the post of Assistant Station Officer. As per the Special Rules, the method of appointment of Assistant Station Officer is as follows: “Assistant Station Officer By promotion from category 3. Leading Fireman and category 4, Driver Mechanic. Note:- The vacancies in the category of Assistant Station Officer shall be filed up in the ratio 9:1 from among category 3 Leading Fireman and category 4, Driver Mechanic. The first vacancy being filled up by promotion from category 3.” As far as the petitioners and respondents 2 and 3 are concerned, they are Driver Mechanic and therefore their claims in these writ petitions need to be considered only in respect of the quota prescribed for Driver Mechanic and not Leading Firemen, which is the other feeder category for promotion to the post of Assistant Station Officer. The W.P.C. No. 23622/07 & 2684/08 -: 2 :- method of appointment to the post of Driver Mechanic is as follows: “4. Driver Mechanic (1) By promotion from category 5, Fireman- Driver-cum-Pump Operator. (2) In the absence of suitable candidates under item (1) above, by direct recruitment.” The qualifications for the post of Assistant Station Officer are prescribed in Annexure I to the Rules as follows: “Successful completion of the qualifying course for Assistant Station Officer at Fire Service Training School for a period of 4 months and a pass in the examination in the subjects prescribed for the course. Note:- Candidates for the course shall be selected according to their seniority in the feeder categories. Leading Foreman who have completed three years service as Leading Fireman, and Driver Mechanics who have completed eight years of service in the Department are eligible for selection to the course. Select lists of successful candidates in the course shall be prepared on the basis of the date of first appointment of each candidate in the service.” The qualifications for appointment to the post of Driver Mechanic are as follows: “For Direct recruitment or by promotion:- (1) Must have passed S.S.L.C or equivalent examination. (2) Must possesses current Motor Driving Licence with endorsement for Driving heavy goods vehicles or heavy passenger vehicle. (3) Must not be less than 165 Cms. in height (without foot wear). Must not be less than 50 Kg. in weight and must not be less than 81 Cms. round the chest with a minimum expansion of not less than 5 Cms. Note:- In the case of Scheduled Caste/Scheduled Tribe W.P.C. No. 23622/07 & 2684/08 -: 3 :- candidates, the minimum height, Chest and Weight measurements shall be 160 Cms, 76 Cms, and 48 Kgs., respectively. But no relaxation in chest expansion shall be allowed. (4) Must have had practical experience as Mechanic in a well established Automobile Workshop for a period of not less than three years. Note:- (1) A certificate issued on completion of a course of training as driver mechanic in the State Transport Workshop, or in any Government approved workshop stating that the individual concerned is fit to hold the post of Driver Mechanic shall be treated as equivalent to the practical experience specified in qualification (4) above. (2) Completion of successful qualifying course of training as Driver Mechanic for a period of six months under a qualified Driver Mechanic of the Fire Force Department in the Fire Service Training School or any major Fire Station of the State shall also be treated as equivalent to the practical experience specified in qualification (4) above. (5) Must qualify in at least 4 out of the eight items of Physical efficiency test showing the minimum standard of efficiency noted against each item under item 4 of Category-1 and must produce the Medical Certificate issued by a Medical Officer not below the rank of a Civil Surgeon Grade II as to the candidate's physique, fitness and capacity for rough outdoor work at the time of physical efficiency test.” The method of appointment to the post of Fireman Driver-cum- Pump Operator is as follows: “(1) By appointment from category 6, Fireman. (2) In the absence of suitable candidates under item (1) above, by direct recruitment.” The qualifications for the post of Fireman Driver-cum-Pump Operator are as follows: For direct recruitment and for appointment from category 6:- W.P.C. No. 23622/07 & 2684/08 -: 4 :- (1) Must have passed S.S.L.C. Examination or equivalent Examination. (2) Must possess current Motor Driving Licence with endorsement for driving heavy goods vehicle or heavy passenger vehicle. (3) Must not be less than 165 Cms. in height (without foot wear). Must not be less than 50 Kg. in weight and must not be less than 81 Cms. round the chest with a minimum expansion of not less than 5 Cms. Note:- In the case of Scheduled Caste/Scheduled Tribe candidates, the minimum height, Chest and Weight measurements shall be 160 Cms, 76 Cms, and 48 Kgs., respectively. But no relaxation in chest expansion shall be allowed. (4) Must qualify in at least 5 out of eight items of Physical efficiency test showing the minimum standard of efficiency noted against each item under item 4 of Category-1 and must produce the Medical Certificate issued by a Medical Officer not below the rank of a Civil Surgeon Grade II as to the candidates physique, fitness and capacity for rough outdoor work at the time of physical efficiency test.” 3. The petitioners and respondents 2 and 3 entered service as Fireman Driver-cum-Pump Operator by recruitment through Public Service Commission. It is not disputed before me that in the rank list prepared by the Public Service Commission for the post, respondents 2 and 3 were ahead of the petitioners in rank and therefore although all of them were appointed on the same day, namely, 3-4-1995, respondents 2 and 3 were senior to the petitioners in the category of Fireman Driver-cum-Pump Operator on 3-4-2005. The procedure adopted by the Department for promotion to the post of Driver Mechanic is to provisionally promote them to that post and to depute them for acquiring the training qualification provided in the Special Rules. Accordingly, petitioners 1 and 2 were promoted provisionally as Driver Mechanic on 28-7-1997 and they were deputed for training on 2-12-1997 and 3-12-1997 respectively by Ext. P3 order. After W.P.C. No. 23622/07 & 2684/08 -: 5 :- successful completion of the training, they were regularly promoted as Driver Mechanic on 4-12-1997. Respondents 2 and 3 were provisionally promoted as Driver Mechanic on 22-5-1999 and deputed for training. On completion of training, they were appointed on regular basis on 1-11-1999 and 31-10-1999 respectively. The probation of the petitioners in the post of Driver Mechanic was declared with effect from 6-12-1998 as per Exts.P5 and P6 orders. The probation of respondents 2 and 3 were declared on 1-11-2000 and 31-10-2000 respectively. While so, quite a number of vacancies arose in the post of Assistant Station Officer. However, according to the petitioners, promotions were not immediately made on the occurrence of the vacancies because there were no sufficient qualified leading firemen eligible for promotion to the quota fixed for them. Leading fireman and Driver Mechanic are to be given promotion as Assistant Station Officer in the ratio 9:1. Ultimately, the petitioners were deputed for training required for promotion to the post of Assistant Station Officer in the 19th batch on 31-1-2007. They acquired the training after four months. Respondents 2 and 3 who were juniors to the petitioner in the cadre of Driver Mechanic were not sent for training along with the petitioner in the 19th batch. They were also not included in the 20th batch since, according to the 1st respondent, they did not have the 8 years' service in the post of Driver Mechanic, which, according to the 1st respondent, was necessary for deputing them for training as per the Special Rules. It is at that time respondents 2 and 3 filed W.P(C) No. 23622/2007 contending that they are entitled to be deputed for training insofar as what is contemplated by the Special Rules in the case of Driver Mechanic is completion of 8 years service in the Department and not as Driver Mechanic. They also contended that in Ext. P5 in that writ petition, W.P.C. No. 23622/07 & 2684/08 -: 6 :- which is the list of persons selected for training in the 20th batch, no Driver Mechanic was included. At the time of admission, this Court granted an interim order in that writ petition directing the 1st respondent to permit the petitioners to participate for training in the 20th batch provisionally subject to the result of the writ petition. Pursuant thereto, respondents 2 and 3 have also completed the training successfully. 4. Then comes the grievance of the petitioners. Allegedly on the basis of the interim orders in the other writ petition, respondents 2 and 3, though junior to the petitioners in the category of Driver Mechanic, were promoted by Ext. P7 order in preference to the petitioners. The petitioners therefore seek the following reliefs in W.P (C) No. 2684/2008: “(i) To issue a writ of certiorari and call for the records leading to Ext. P7 and quash the same to the extent it promotes the respondents 2 and 3 as Assistant Station Officers. (ii) To issue a writ of mandamus, order or direction to the 1st respondent to revert the respondents 2 and 3 from the post of Assistant Station Officer in the post of driver mechanic and consequently promote the petitioners to the post of Assistant Station Officer with retrospective effect with all consequential benefits.” 5. Respondents 2 and 3 in their writ petition, viz. W.P(C) No. 23622/2007 seek the following reliefs: “(i) Issue a writ of mandamus or other appropriate writ, order or direction directing the 1st respondent to depute the petitioners also for the 20th Batch of Assistant Station Officer's training course pursuant to Ext. P 5 forthwith; (ii) Declare that the action of the 1st respondent in deploying respondents 2 and 3 for the 19th for the 19th Batch of Assistant Station Officers Training Course in preference to the petitioner is W.P.C. No. 23622/07 & 2684/08 -: 7 :- illegal and in violation to the Special Rules for Kerala Fire Subordinate Services; (iii) Issue a writ of mandamus or other appropriate writ, order or direction directing the 1st respondent to promote the petitioners as Assistant Station Officers in preference to respondents 2 and 3 with all consequential benefits.” 6. I shall first consider the claim of the petitioners in W.P(C) No. 2684/2008. According to the petitioners, admittedly, they were promoted as Driver Mechanic on 4-12-1997 regularly, whereas respondents 2 and 3 were so promoted only on 1-11-1999 and 31-10- 199 respectively. Respondents 2 and 3 have not chosen to challenge those promotions or the seniority position. Therefore, according to the petitioners, their seniority in the feeder category of Driver Mechanic for the post of Assistant Station Officer in preference to respondents 2 and 3 is not in dispute at all. They would submit that going by the Special Rules read with Rule 28(b)(ii) of the Kerala State and Subordinate Service Rules, promotion to the post of Assistant Station Officer shall be on the basis of seniority. In fact, in view of the first sentence in the Note attached to the Special Rules for the post of Assistant Station Officer candidates for the training course shall be selected according to their seniority in the feeder categories. The petitioners and respondents 2 and 3 being in the feeder category of Driver Mechanic, the petitioners were preferred to respondents 2 and 3 for the purpose of deputation for training as they were senior to respondents 2 and 3. That being so, on the admitted seniority position of the petitioners above respondents 2 and 3 in the category of Driver Mechanic, the petitioners are entitled to be promoted as Assistant Station Officer ahead of respondents 2 and 3, is the contention raised by the petitioners. They therefore submit that Ext. P7 order passed contrary to the said legal position is clearly W.P.C. No. 23622/07 & 2684/08 -: 8 :- unsustainable and is liable to be quashed so far as the petitioners and respondents 2 and 3 are concerned. However, it is now submitted by the learned counsel for the petitioners that during the pendency of the writ petition, the petitioners were also promoted by order dated 31-5-2008. Therefore, essentially what they now seek is restoration of their seniority ahead of respondents 2 and 3. 7. A counter affidavit has been filed by the 1st respondent adopting the counter affidavit filed by them in W.P(C) No. 23622/2007. In that counter affidavit, the 1st respondent agrees with all the contentions of the petitioners. However, they have not chosen to explain why despite their understanding of the law as stated in that counter affidavit they preferred respondents 2 and 3 for promotion ahead of the petitioners by issuing Ext. P7 order. 8. Respondents 2 and 3 have filed a common counter affidavit in which they rely heavily on the second sentence in the Note to the Special Rules applicable to Assistant Station Officer quoted above. According to them, for promotion to the post of Assistant Station Officer, what is relevant is not the seniority in the category of Driver Mechanic, but the length of service in the Department as a whole. They would submit that insofar as in the entry post of Fireman, Driver-cum-Pump Operator, respondents 2 and 3 were senior to the petitioners, going by the second and third sentences in the Note to the Special Rules, they are entitled to be preferred to the petitioners for promotion to the post of Assistant Station Officer. 9. Respondents 2 and 3, in their writ petition, would take an alternate contention also. It is to the effect that even assuming that the promotion to the post of Assistant Station Officer should be based on the seniority in the category of Driver Mechanic, in view of the second sentence in the Note to the Special Rules, though on the W.P.C. No. 23622/07 & 2684/08 -: 9 :- basis of seniority, Driver Mechanic who have completed 8 years of service in the Department are to be sent for training, even if they have not put in 8 years of service in the category of Driver Mechanic. Therefore, according to them, even if the contentions of the petitioners are accepted, they cannot be denied the benefit of the training they have undergone pursuant to the interim orders of this Court, to which, according to them, they are legally entitled in view of the second sentence in the Note to the Special Rules. 10. Going by the Special Rules read with Rule 28(b)(ii) of KS and SSR, I am of opinion that clearly the promotion to the post of Assistant Station Officer has to be based on the seniority position of the eligible persons in the category of Driver Mechanic. No doubt, the second and third sentences in the Note to Special Rules applicable to the post of Assistant Station Officer have created some confusion in the matter. However, that cannot override the first sentence which is to the effect that candidates for the course shall be selected according to their seniority in the feeder categories. The same read with the method of appointment and Rule 28(b)ii) of the K.S and S.S.R. do not give room for any doubt whatsoever regarding the fact that promotion to the post of Assistant Station Officer can only be on the basis of seniority in the category of Driver Mechanic. There cannot be any difficulty in reading the second sentence in conformity with that legal position. The second sentence only enables the Driver Mechanic who have completed 8 years of service in the Department for selection to the training course. But, such selection should also be on the basis of seniority as provided in the first sentence. Therefore, if there are no other person senior to respondents 2 and 3 who are eligible to be deputed for training, the respondents 2 and 3 would be eligible for deputation for training although they have not completed W.P.C. No. 23622/07 & 2684/08 -: 10 :- 8 years in the cadre of Driver Mechanic, since they had completed 8 years of service in the Department. According to me, the last sentence in the Note makes no sense. I am at a loss to understand the purpose of preparing the so called select list as per the third sentence in the Note. Insofar as the promotion is by seniority, the question of preparation of a select list of persons who have undergone the training does not arise in the case of Assistant Station Officer. The question of preparing a select list arises only when the method of promotion is by selection. Therefore, no purpose would be served by preparing a select list of successful candidates for the training course on the basis of date of first appointment of each candidate in the service. In any event, that cannot make any difference as between the petitioners and respondents 2 and 3 since they have undergone the training course in two different batches. Even going by the 3rd sentence in the Note, the so called select lists have to be prepared separately for the 19th and 20th batches. Since the petitioners would be included in the select list for the 19th batch, I am of opinion that the petitioners would have to be preferred ahead of respondents 2 and 3 for promotion to the post of Assistant Station Officer, since they can be included only in the select list for the 20th batch. 11. In view of my above findings, clearly, Ext. P7 order is liable to be quashed. I do so. The petitioners 1 and 2 shall be promoted in the place of respondents 2 and 3 in Ext. P7 order. Since the petitioners have subsequently been promoted, there cannot be any difficulty in accommodating respondents 2 and 3 also in the vacancies of Assistant Station Officer to which the petitioners were subsequently promoted, insofar as evidently, there are vacancies to accommodate them also. Appropriate orders in this regard safeguarding the seniority position of the petitioners as against W.P.C. No. 23622/07 & 2684/08 -: 11 :- respondents 2 and 3 shall be issued as expeditiously as possible, at any rate, within one month from the date of receipt of a copy of this judgment. I make it clear that further promotions to higher posts shall also be based on the seniority position as declared in this judgment. 12. Since I have already held that the second sentence in the Note has to be construed in such a way that Driver Mechanics who have completed 8 years of service in the Department are also eligible for selection to the post in accordance with the seniority, respondents 2 and 3 are eligible to be deputed for training in the 20th batch itself. It is declared so. Therefore, W.P(C) No. 23622 of 2007 is disposed of declaring that the training course undertaken by them pursuant to the interim order would be treated as undergone in accordance with law. However, the other prayers in that writ petition are declined in view of my findings in the other case. Sd/- S. Siri Jagan, Judge. Tds/