IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 21ST OCTOBER 2009 / 29TH ASWINA 1931 WP(C).No. 3014 of 2009(H) ------------------------------------- PETITIONER(S): -------------------- SINDHU.R.NAIR, COMPUTER PROGRAMMER, COLLEGE OF ENGINEERING, CHENGANNUR. BY ADV. MR.S.P.ARAVINDAKSHAN PILLAY SMT.N.SANTHA MR.K.A.BALAN MR.PETER JOSE CHRISTO MR.S.A.ANAND RESPONDENT(S): ------------------------ 1. INSTITUTE OF HUMAN RESOURCES DEVELOPMENT PRAJOE TOWERS,VAZHUTHACAUD,THIRUVANANTHAPURAM, PIN 695 014,REPRESENTED BY ITS DIRECTOR. 2. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT,HIGHER EDUCATION DEPT, SECRETARIAT,THIRUVANANTHAPURAM, PIN-695 001. 3. NIRMALA MATHEW, LECTURER IN COMPUTER APPLICATION/SYSTEM ANALYST, COLLEGE OF APPLIED SCIENCE,VAZHAKKAD, MALAPPURAM DISTRICT, PIN:673 640. 4. TITTY JACOB, LECTURER IN COMPUTER APPLICATION/SYSTEM ANALYST, MODEL ENGINEERING COLLEGE, ERNAKULAM, THRIKKAKKARA, PIN-682 021. R2 BY GOVERNMENT PLEADER R1 BY MR.N.N.SUGUNAPALAN, SENIOR ADVOCATE, SC, IHRD, ADV. SMT.T.N.GIRIJA, SC. R4 BY ADV. MR.MAT.PAI . R3 BY ADV. MR.P.M.PAREETH . THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) Nos.3014/2009-H 7922/2009-I - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 21st day of October, 2009. JUDGMENT In Writ Petition No.7922/2009, the petitioner was appointed as Lecturer in Computer Application by the first respondent which is under challenge in Writ Petition No.3014/2009. Therefore, these writ petitions are disposed of by a common judgment. 2. As regards the petitioner in Writ Petition No.7922/2009 is concerned, she entered service as a Computer Programmer on 10.4.1996 and was promoted as Junior System Analyst on 1.3.2007. She was appointed as Lecturer in Computer Application on 18.9.2007 and joined duty on 26.9.2007. The qualification acquired by the petitioner is MCA degree of the University of Madras by securing 66.61% marks. Ext.P1 is the copy of the mark list. By Ext.P2 the petitioner was appointed as Lecturer in Computer Application. 3. Later, the first respondent issued a memo as per Ext.P4 proposing to revert the petitioner on the ground that the qualification acquired by the petitioner is not sufficient. The petitioner offered her explanation for the wpc 3014 & 7922 of 2009 2 same. The objection raised by the first respondent is that the petitioner is having only Second Class degree in MCA, while, as per the Special Rules, the prescribed qualification is MCA with First Class. The explanation offered by the petitioner is that she had secured 66.61% marks and therefore the same could be accepted. Ultimately, the petitioner submitted Ext.P6 representation seeking for relaxation of the qualification. By Ext.P7, the petitioner stands reverted as Junior System Analyst. The petitioner is also relying upon Ext.P8 to show that in respect of various categories, the educational qualifications have been relaxed for accommodating the incumbents. It is therefore submitted that there is discrimination as far as the petitioner is concerned. 4. The respondents have filed counter affidavits opposing the prayers in the writ petition. The petitioner, along with I.A.No.10216/2000 produced Exts.P12 to P14 in support of her case. 5. The stand taken by the first respondent in the statement is that going by the certificate produced by the petitioner, (Ext.R1(a)), it can be seen that she is placed in the Second Class, whereas the qualification required is First Class Degree in M.C.A. Ext.R1(b) has also been produced to show that she was reverted already. Thereafter, the petitioner has wpc 3014 & 7922 of 2009 3 amended the writ petition challenging Ext.P7. 6. In para 6 of the statement filed by the first respondent, explanations have been offered as regards the allegations raised by the petitioner that in respect of various other persons, relaxation has been granted. 7. In Writ Petition No.3014/2009, the petitioner is working as a Computer Programmer. She is aggrieved by the selection of unqualified persons, viz. respondents 3 and 4, i.e. petitioner in W.P.(C) No.7922/2009 and another. 8. This court by interim order dated 12.3.2009 directed the first respondent to consider whether the petitioner can be temporarily promoted as Lecturer in Computer Application/System Analyst having regard to her qualifications and availability of vacancies and if petitioner is eligible, pass orders giving promotion, within two weeks. 9. The main issue that arises for consideration is whether the qualification acquired by the petitioner in W.P.(C) No.7922/2009 is sufficient for promotion as Lecturer in Computer Application. The qualification required, as already noticed, is a degree in M.C.A. with First Class. True that the petitioner is having 66.61 marks, going by the wpc 3014 & 7922 of 2009 4 certificate produced. But the petitioner has obtained those marks after availing a second chance for the examination concerned. The certificate that is produced will only show that she is having Second Class (Ext.R1(a). The same does not satisfy the prescribed qualification. 10. Therefore, the further question is whether the petitioner is entitled for relaxation of the qualification. As far as the question of relaxation is concerned, two aspects will be important. One is whether the notification published by the appointing authority provides a clause for relaxation. Herein, that is absent. Then the other question is whether as a matter of right, the petitioner can claim relaxation, going by the specific provisions of the Special Rules. Herein, the petitioner has produced various documents to show that certain persons have been given relaxation. Learned Senior Counsel for the first respondent submitted that actually, in respect of certain posts there is an amendment to the Special Rules regarding qualification. Therefore, it is not a case where individually they have been granted relaxation. Apart from that, herein at the time of her appointment/promotion qualified persons like fourth respondent is available and have been included in the seniority-wise list. In that view of the matter, the prayer made by the petitioner in W.P.(C) No.7922/2009 to wpc 3014 & 7922 of 2009 5 grant relaxation in qualification as in the case of other appointees, cannot be granted. It cannot be said that the petitioner has got a right to seek relaxation also. Going by the qualification prescribed, she is not having the required qualification. Therefore, it cannot be said that Exts.P4 and P7 suffers from any infirmity at all. Evidently, when initially the certificates were verified, the very question whether the petitioner was having the sufficient qualification, was overlooked and it is in those circumstances, she has offered the appointment. Even though she has raised a contention that since she has already been appointed and her probation has already been declared and had completed more than 17 months in the said post, the request for relaxation may also be considered, as explained by the first respondent, when there is a qualified hand available, the question of relaxation cannot be considered at all. In that view of the matter, the W.P. (C) No.7922/2009 fails and the same is dismissed. 11. What remains is the claim of the petitioner in W.P.(C) No.3014/2009 for promotion/appointment in the vacancy to which the petitioner in W.P.(C) No.7922/2009 was appointed. Pending the writ petition, as per Ext.P11 the petitioner therein was already appointed, although in a different vacancy pursuant to the interim order passed by this wpc 3014 & 7922 of 2009 6 court. It is pointed out by the learned counsel for the petitioner that the said vacancy was also existing as on the date of issuance of Ex.P5 order of promotion. The petitioner is only provisionally promoted now, going by Ext.P11. There is no dispute that she is a person qualified for appointment and was accordingly selected. The further prayer in the writ petition is to grant promotion with retrospective effect from 18.9.2007 and also consequential service benefits including monetary benefits. The date on which the petitioner in W.P.(C) No.7922//2009 is appointed, is evident from Ext.P5 produced in W.P.(C) No.3014/2009. Therefore, it is clear that but for the appointment of the petitioner in W.P.(C) No.7922/2009, she would have secured appointment at that point of time. 12. Therefore, there will be a direction to the first respondent to pass orders granting promotion/appointment to the petitioner in W.P.(C) No.3014/2009 as Lecturer with effect from 18.9.2007. Then the further question is with regard to the claim for monetary benefits from the said date. The question whether the petitioner is entitled for monetary benefits flowing from her appointment with effect from 18.9.2007, will be a matter for the first respondent to consider. In this regard, the petitioner is relying upon Ext.P12 produced along with the reply affidavit, passed in the case of wpc 3014 & 7922 of 2009 7 one Shri Maneksh P.S. There will be a direction to the first respondent to consider the claim of the petitioner therein, in the light of Ext.P12 and pass appropriate orders within a period of six weeks from the date of receipt of a copy of this judgment. W.P.(C) No.7922/2009 is hence dismissed and W.P. (C) No.3014/2004 is allowed as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/