IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 14TH AUGUST 2008 / 23RD SRAVANA 1930 WP(C).No. 17211 of 2008(Y) -------------------------- PETITIONER: ---------------------- CINO FRANCIS, DEMONSTRATOR (CIVIL), THIAGARAJAR POLY TECHNIC, ALAGAPPA NAGAR, THRISSUR DT., RESIDING AT CHERMAL HOUSE, ST. VINCENT STREET, NEAR BYE PASS, THALORE, THRISSUR DT. BY ADV. SRI.K.MANOJ CHANDRAN ADV. SRI.P.R.AJITHKUMAR RESPONDENTS: ------------------------ 1. THE DIRECTOR OF TECHNICAL EDUCATION, TRIVANDRUM. 2. THE JOINT DIRECTOR, REGIONAL DIRECTORATE OF TECHNICAL EDUCATION, KOTHAMANGALAM. 3. THE CHAIRMAN, GOVERNING COUNCIL, THIAGARAJAR POLY TECHNIC, ALAGAPPA NAGAR, THRISSUR DT. 4. THE PRINCIPAL, THIAGARAJAR POLY TECHNIC, ALAGAPPA NAGAR, THRISSUR DT. 5. SABU.N.J, DEMONSTRATOR (CIVIL), THIAGARAJAR POLY TECHNIC, ALAGAPPA NAGAR, THRISSUR DT. BY GOVERNMENT PLEADER ADV. A.J. VARGHESE. R5 BY ADV. SRI.TONY GEORGE KANNANTHANAM R3 AND R4 BY ADV. SRI.JIJI THOMAS THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T. SANKARAN, J. ............................................................................ W.P.(C) No. 17211 OF 2008 ............................................................................ Dated this the 14th August, 2008 J U D G M E N T The petitioner is working as Demonstrator (Civil) in Thiagarajar Poly Technic , Alagappa Nagar, Thrissur , which is an aided institution. The petitioner states that she was appointed with effect from 28.08.1997 as per Ext. P1 order of appointment. It is stated that she has completed the B.Tech course and appeared for the 8th Semester B.Tech examination in Civil Engineering on 31.01.2008. It is further stated that the result was published and Ext.P2 provisional certificate dated 27.05.2008 was issued in favour of the petitioner for having passed the B.Tech examination. It is stated that a vacancy arose in the post of Lecturer (Civil) in the 3rd respondent College. It is further stated in the Writ Petition that as per the Special Rules for the Kerala Technical Educational Service, the minimum qualification for a candidate for being considered/promoted to the post of Lecturer is Degree in appropriate branch of Engineering or Technology or any other qualification recognized by Government as equivalent thereto with minimum 60% marks . The petitioner claims that she is the seniormost incumbent in the post of Demonstrator who is eligible to be promoted to the post of Lecturer. The grievance of the petitioner is that overlooking her seniority, the fifth respondent was promoted and appointed as W.P.(C) No. 17211 OF 2008 2 Lecturer (Civil) in the 3rd respondent College with effect from 01.04.2008. The petitioner states that the fifth respondent does not have the requisite qualification as he lacks the minimum percentage of marks prescribed in the Special Rules for the Kerala Technical Educational Service. According to the petitioner, the promotion of the fifth respondent is illegal and contrary to the Special Rules. 2. The reliefs prayed for in the Writ Petition are the following: I) to call for the records leading to the promotion of the 5th respondent to the post of Lecturer (Civil) with the 4th respondent college, verify and quash the same by issuing a writ of certiorari or any other writ, order or direction. II) to issue a writ of mandamus directing the 2nd and 3rd respondents to promote the petitioner to the post of Lecturer (Civil) with the 4th respondent college and to approve the same. III) to declare that the promotion given to the 5th respondent to the post of Lecturer (Civil) with the 4th respondent college as illegal and violative of Special Rules for the Kerala Technical Education Service and also in violation of the provisions of the General Rules governing in the field. IV) to declare that the petitioner is eligible and qualified to be promoted for the post of Lecturer (Civil) with the 4th respondent college. V) to direct the 2nd respondent to consider and pass appropriate orders in Exhibits P4 and P5 representations filed by the petitioner in accordance with law after affording W.P.(C) No. 17211 OF 2008 3 an opportunity of being heard. VI) to restrain the 2nd respondent from giving approval for the 5th respondent's promotion as Lecturer (Civil) with the 4th respondent college, till a decision is taken in Exhibits P4 and P5; VII) to pass such other order or direction which in the circumstances of this case, this Hon'ble Court deems fit. 3. A counter affidavit is filed by respondent Nos. 3 to 5 in which it is stated that as on the date of occurrence of vacancy, the petitioner was not qualified to be appointed to the post of Lecturer (Civil) as she had not passed the B.Tech degree examination. It is pointed out that even going by the averments in the Writ Petition it is clear that she was not qualified on the aforementioned date. The appointment of the 5th respondent is justified in the counter affidavit. As regards the qualification of the 5th respondent, respondent Nos. 3 to 5 rely on the amendment to the Special Rules for the Kerala Technical Educational Service made in 1989, which is produced as Ext.R3(a) along with the counter affidavit. It is contended by the contesting respondents that since the 5th respondent had secured 57.5% marks in B.Tech examination, he is fully qualified under the Special Rules for being appointed as Lecturer (Civil). 4. At the time when the Writ Petition was taken up for hearing, it is submitted that the petitioner has an alternate remedy of filing a revision before the Government and that the petitioner has not exhausted that remedy. In view W.P.(C) No. 17211 OF 2008 4 of the fact that the petitioner has an alternate remedy of filing a revision before the Government, it is not proper for this court to consider the merits of the respective claims of the petitioner as well as respondent Nos. 3 to 5. The petitioner is free to file a revision before the Government within a period of two weeks from today, in which case, the Government shall dispose of the same expeditiously and at any rate within a period of three months, after affording an opportunity of being heard to the petitioner and respondent Nos. 3 to 5. Reserving the liberty to the petitioner to file a revision before the Government, the Writ Petition is closed for the present. All the contentions of the parties are left open to be decided in the Revision that may be filed by the petitioner. K.T. SANKARAN, JUDGE. lk