IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 29767 of 2008(R)
1. JAYADEV.P.S.S/O.LATE LEELAVATHIMMMA,
... Petitioner
Vs
1. THE SECRETARY FOOD CRAFT INSTITUTE
... Respondent
2. STATE OF KERALA REPRESENTED BY
3. JACOB THOMASRPSHIN,
4. MANOJ K.MATHEW, KAVUNGAL HOUSE,
5. SMT.SUEBY ALEX, VALIYAVEETIL HOUSE,
6. BABU JOSEPH, MOOLAN HOUSE,
7. VIBIN KUMAR S. 33/692, PRAVEEN NIVAS
8. ISMAIL CHENGANAKKATTIL,
9. PROMODKUMAR K.N. NENNAYAPPALLIL,
10. AJITH KURIAN, POOVATHUMKAL,
11. SREEJITH S. THULASL, PATHIRAPPALLY P.O.
12. HARIPARASAD S. THETTYCOUTE HOUSE,
For Petitioner :SRI.P.K.RAMKUMAR
For Respondent :SRI.THOMAS MATHEW NELLIMOOTTIL
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :08/10/2010
O R D E R
T.R. RAMACHANDRAN NAIR, J.
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W.P.(C). No.29767/2008-R
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Dated this the 8th day of October, 2010
J U D G M E N T
The petitioner seeks to challenge the non consideration
of his application for selection to the post of
Demonstrator in the service of the first respondent.
2. The petitioner is already working in the same
institution and he started his career as Cleaner in the
first respondent Institution. His mother was also working
as a Cleaner there. He was having Pre-degree at the time
of appointment. Then he pursued his studies for B.Sc
course in Hospitality Science with the permission of the
first respondent after availing three years’ leave without
allowance. After obtaining Degree, he rejoined duty as
Cleaner from 31/05/2007.
3. Staking his claim for promotion, he approached the
first respondent and thereafter, approached this Court by
filing W.P.(C).No.33422/2007 for a direction to the
respondents to grant him promotion to the post of
Demonstrator after keeping one out of 12 vacancies for
promotion for existing employees. This Court by Ext.P1
Judgment dated 13/11/2007 directed the first respondent to
consider his request. Thereafter, by Ext.P2 Order dated
30/11/2007 he was promoted as Lab Attendant and posted in
W.P.(C). No.29767/2008
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Food Craft Institute, Thodupuzha. The process of selection
to the post of Demonstrator was initiated by the first
respondent as per Ext.P3 notification dated 19/06/2007. It
appears that this notification was not pursued and,
thereafter, another notification dated 24/10/2007 was
published and, he submitted an application as per Ext.P5.
Alleging that the application is not being considered, this
writ petition was filed. It is averred in paragraph (4) of
the writ petition that a written test and interview was
conducted on 15/06/2008 and 02/07/2008 respectively. The
copies of the appointment orders have been produced as
Exts.P6 to P15 and the selected candidates have also been
arrayed as party respondents. The first respondent has
filed a detailed counter affidavit.
4. Heard both sides. The learned counsel for the
petitioner submitted that after the petitioner obtained the
qualification, he was entitled for promotion. But, inspite
of the direction by this Court in Ext.P1 Judgment, he was
not given reply also. Therefore, the promotion granted
then as Lab Attendant is not made in terms of the
directions in Ext.P1 Judgment. It is therefore, submitted
that in the light of directions in Ext.P1 Judgment, his
application submitted as per Ext.P5 ought to have been
considered and the rejection of the application is illegal.
W.P.(C). No.29767/2008
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5. In the counter affidavit filed by the first
respondent, the stand taken is that the respondent has
fully complied with the directions in Ext.P1 Judgment by
promoting the petitioner as Lab Attendant on 30/11/2007.
Pursuant to notification dated 19/06/2007, because of
certain complaints, the selection could not be proceeded
with. Thereafter, the Executive Committee took a decision
to issue a fresh notification for filling-up the post of
six Instructors and 12 Demonstrators.
6. The qualification for the post of Demonstrator as
averred in the counter affidavit is the following:-
"Degree/Diploma in Hotel Management &
Catering Technology (3yrs/4yrs Course) from a
recognised University/State Board of Technical
Education/National Council for Hotel Management &
Catering Technology, New Delhi or from an
Institute having AICTE approval with at least one
year practical experience in a reputed Hotel or a
Certificate course passed with at least 60% marks
in the relevant trade from National Council for
Hotel Management & Catering Technology/State
Technical Board and 3yrs practical experience in
a reputed Hotel.”
The stand taken is that the petitioner is not having the
requisite experience qualification, namely, one year
practical experience in a reputed Hotel.
W.P.(C). No.29767/2008
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7. The learned counsel for the petitioner further
submitted that the adoption of the Rules is only in the
year 2008 and, therefore the experience required as per the
notification cannot stand scrutiny. This contention does
not arise for consideration in the light of the fact that
the notification or the decision fixing the qualification
has not been challenged in the writ petition.
8. Therefore, what remains to be considered is the
claim of the petitioner for appointment as Demonstrator on
the basis of Ext.P1 Judgment. In fact, in Ext.P1 Judgment,
the direction was to only consider his representation.
This Court had no occasion to adjudicate the merits of the
candidate therein. The petitioner could have, if he was
aggrieved by the promotion as Lab Attendant, either
complained to the first respondent for not promoting him as
Demonstrator or approached this Court.
9. The learned counsel for the petitioner submitted
that his grievance regarding the non granting of promotion
as Demonstrator has been highlighted in the writ petition
and reliefs have been sought for in that regard also.
10. The petitioner has automatically been found
eligible for promotion as Lab Attendant. The notification
as regards the post of Demonstrator is not for any
appointment by way of promotion but for direct recruitment.
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True that he also applied to the post. The claim for
promotion and the claim for appointment by way of direct
recruitment are quite different because these two are
different streams. Therefore, when he is opting for direct
recruitment, the petitioner will have to fulfil all the
qualifications required including experience. In that view
of the matter, as the petitioner had submitted application
pursuant to the notification for appointment by direct
recruitment unless and until he fulfils all the
qualifications namely, academic as well as experience, his
application could not have been considered by the first
respondent. In that view of the matter, the rejection of
the application cannot be faulted. What remains is the
claim for promotion as Demonstrator. It is pointed out
that the petitioner has not received any reply so far,
inspite of the direction issued in Ext.P1 Judgment. The
first respondent has stated in the counter affidavit that
due promotion was given to the petitioner as Lab Attendant.
11. Therefore, the writ petition is dismissed. In the
light of the complaint raised by the petitioner that
inspite of Ext.P1 Judgment no formal reply was given after
considering his claim, the first respondent will furnish a
reply after considering his claim, if any, for promotion as
Demonstrator within a period of two months from the date of
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receipt of a copy of this Judgment and the dismissal of the
writ petition will not stand in the way of considering the
same in accordance with law. No costs.
(T.R. Ramachandran Nair, Judge.)
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