Juju.P.George vs The Addl.Chief Secretary Finance ...
2021 Latest Caselaw 9196 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

               THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

     FRIDAY, THE 19TH DAY OF MARCH 2021 / 28TH PHALGUNA, 1942

                       WP(C).No.3331 OF 2021(N)


PETITIONER:

               JUJU.P.GEORGE
               AGED 53 YEARS
               HEAD OPERATOR SUPERVISORY (H.O.S.), PALAKKAD WATER
               SUPPLY SCHEME, KERALA WATER AUTHORITY, MALAMPUZHA,
               PALGHAT, PIN - 678651.

               BY ADV. SRI.P.K.ABOOBACKER(EDAPPALLY)

RESPONDENTS:

      1        THE ADDL.CHIEF SECRETARY FINANCE (RULES),
               GOVERNMENT SECRETARIAT, GOVERNMENT OF KERALA,
               TRIVANDRUM.

      2        THE MANAGING DIRECTOR
               KERALA WATER AUTHORITY, JALABHAVAN, TRIVANDRUM, PIN -
               695 010.

      3        THE CHIEF ENGINEER (GENERAL)
               KERALA WATER AUTHORITY, JALABHAVAN, TRIVANDRUM, PIN
               -695 010.

      4        THE DEPUTY CHIEF ENGINEER (HRA GL)
               KERALA WATER AUTHORITY, JALABHAVAN, TRIVANDRUM, PIN -
               695 010.

      5        JOSE K.P.
               HEAD OPERATOR, W W SECTION NO.1, THRISSUR, PALAKKAD
               WATER SUPPLY SCHEME, KERALA WATER AUTHORITY,
               MALMPUZHA, PALGHAT, PIN - 680 005.

               R2-4 BY ADV. SMT.MARY BENJEMIN

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
19.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.3331 OF 2021

                                 2




                           JUDGMENT

Dated this the 19th day of March 2021

This writ petition is filed seeking the following reliefs:-

(i) To call for the Records relating to Exhibit P1 to P12 and to issue a writ of Mandamus or any other appropriate writ, direction or order setting aside Ext.P11 order by which the 5th Respondent who is far Junior to the Petitioner was promoted as Mechanical Superintendant as the same is illegal, arbitrary, unsustainable and without jurisdiction.

(ii) To issue a Writ of Mandamus or any other appropriate writ, direction or order directing the Respondent to re assign the seniority of the Petitioner and issue an advanced seniority position and also to issue revised orders for extending all service benefits including grade and linear promotions and also to revise his pay structure on the basis of that.

(iii) To issue a Writ of Mandamus or any other appropriate writ, direction or order directing the 1st Respondent to dispose off Ext.P12 representation filed by the Petitioner before the 2nd Respondent on the basis of the Judgment dated 13.01.2021 in W.P.(C) 414/2021 after giving an opportunity of being heard to the Petitioner.

WP(C).No.3331 OF 2021

(iv) To issue a Writ of Mandamus or any other appropriate writ, direction or order directing the Respondents not to finalise the seniority list of Head Operator, before reconsidering Ext.P7 representation by the 2nd Respondent on the basis of the Judgment dated 13.01.2021 in W.P.(C) 414/2021 and also before disposing off Ext.P12 representation pending before the 2nd Respondent.

(v) To issue a Writ of Mandamus or any other appropriate writ, direction or order directing the Respondents not to make any further promotion on the basis of the existing Ext.P5 seniority list to the post of Mechanical Supdt pending final disposal of this Writ Petition.

2. Heard the learned counsel for the petitioner, learned

Government Pleader as well as the learned Standing Counsel

appearing for the Kerala Water Authority.

3. It is submitted by the learned counsel for the petitioner

that the petitioner is senior to the 5 th respondent in the category

of Head Operator and that Ext.P5 seniority list proves this fact. It

is submitted that the petitioner has the qualification of certificate

in ITI (MMV). It is submitted that though the petitioner had

submitted representations with regard to assignment of seniority

in the post of Operator and Head Operator and that this Court WP(C).No.3331 OF 2021

had directed the consideration of the same, the 5 th respondent

has been promoted to the post of Mechanical Superintendent,

ignoring the petitioner's better claim on the basis of seniority.

5. A statement has been placed on record by the

respondents 2 to 4, wherein, it is specifically contending that the

qualification prescribed for the post of Mechanical Superintendent

is Diploma in Mechanical Engineering of a recognized institution.

It is submitted that the petitioner's certificate is not in Mechanical

Engineering, but in MMV(Mechanic Motor Vehicle). It is

submitted that the 5th respondent, though junior to the petitioner,

being a qualified candidate, the respondents have to make the

appointment, taking note of the provisions of the Special Rules.

With regard to the contentions raised by the petitioner that

another person with the same qualification as the petitioner had

been appointed earlier, it is contended that the Special Rules

specifically provide that where there is no qualified hand

available, persons having form V or equivalent and two years of

experience in Tube Well Drilling Operation or in the Operation of

Pumping Plants and Electrical Machinery are also liable to be WP(C).No.3331 OF 2021

appointed and it is on that basis that unqualified hands have

been appointed. It is contended that, in case, the 5 th respondent

was not available for appointment, then the petitioner's claim

could also have been considered in the absence of qualified

persons in terms of the Special Rules.

6. The learned counsel for the petitioner submits that the

petitioner being a senior hand is liable to be considered against

the post. However, I find that, in terms of the Special Rules and

the qualifications specifically prescribed therein, the petitioner

can have a claim for promotion to the post of Mechanical

Superintendent only if he possesses the qualifications as provided

in the Special Rules or any qualification which is equivalent

thereto. For equivalence of qualifications, it is clear that there

must be a competent order treating the qualifications as

equivalent. In case the petitioner has any specific case that the

qualification possessed by him, i.e. ITI(MMV) is equivalent to the

qualification prescribed for promotion to the post of Mechanical

Superintendent as by the Special Rules, it is for the petitioner to

approach the respondents appropriately. If such a claim is raised WP(C).No.3331 OF 2021

by the petitioner before the respondents, it will be considered

with notice to the petitioner as well as the 5 th respondent and

appropriate decision shall be taken.

This writ petition is ordered accordingly.

Sd/-

ANU SIVARAMAN

JUDGE ssa WP(C).No.3331 OF 2021

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 THE TRUE COPY OF THE PROCEEDINGS NO.E-

601/87 DATED 18/8/1986 OF THE ASST.

EXECUTIVE ENGINEER.

EXHIBIT P2 THE TRUE COPY OF THE PROCEEDINGS NO.E-

601/87 DATED 26/5/1988 OF THE ASST.

EXECUTIVE ENGINEER.

EXHIBIT P3 THE TRUE COPY OF THE CIRCULAR NO.AIII(4) 290/88CW DATED 25/11/1992 TO THE 2ND RESPONDENT.

EXHIBIT P4 THE TRUE COPY OF THE ORDER NO.E1/146/93 DATED 22/11/1994 OF THE ASSISTANT EXECUTIVE ENGINEER.

EXHIBIT P5 THE TRUE COPY OF THE RELEVANT PORTION OF SENIORITY LIST OF MECHANICAL SUPERINTENDENT, HEAD OPERATOR, OPERATOR DATED 27/7/2020.

EXHIBIT P6 THE TRUE COPY OF THE EXTRA ORDINARY GAZETTE NOTIFICATION DATED 16/11/2020 BY THE P.S.C.

EXHIBIT P7 THE TRUE COPY OF THE REPRESENTATION DATED 25/8/2020 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.

EXHIBIT P8 THE TRUE COPY OF THE REPRESENTATION DATED 8/6/2020 FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.

EXHIBIT P9 THE TRUE COPY OF THE REPLY DATED 27/11/2020 BY THE 2ND RESPONDENT.

EXHIBIT P10 THE TRUE COPY OF THE JUDGMENT DATED 13/1/2021 IN W.P.(C) 414/2021.

EXHIBIT P11 THE TRUE COPY OF THE PROCEEDINGS DATED 30/1/2021 OF THE 4TH RESPONDENT.

EXHIBIT P12 THE TRUE COPY OF THE REPRESENTATION DATED 2/2/2021 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.

WP(C).No.3331 OF 2021

EXHIBIT P13 THE TRUE COPY OF THE RELEVANT PORTION OF CATEGORY 2 OF THE SCHEDULE TO THE KERALA PUBLIC HEALTH ENGINEERING SERVICE SPECIAL RULES.