IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 4545 of 2007(N)
1. T.C. SASIKUMAR,
... Petitioner
Vs
1. THE STATE OF KERALA,
... Respondent
2. THE DIRECTOR,
For Petitioner :SRI.M.V.BOSE
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice V.GIRI
Dated :17/10/2007
O R D E R
V. GIRI ,J.
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WP(C).NO.4545 of 2007
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Dated this the 17th day of October, 2007
JUDGMENT
The petitioner is working as a Senior
Superintendent in the Kerala State Water Transport
Department. He aspires for promotion to the post of a
Director. In the special rules for the Kerala State Water
Transport Services (Administration Wing), the service
shall consist of three categories.
Category-1 – Director
Category-2 – Personal Assistant to the Director
Category-3 – Works Manager
2. Method of appointment to the post of Director is
by promotion of qualified persons in the service or by
transfer from any other service. The petitioner contends
that though the Senior Superintendent as such is not
included in the state service of Water Transport
Department, the post of Senior Superintendent must be
treated as included in the service and therefore he must
be treated as eligible for being considered for promotion
to the post of Director. Learned counsel for the
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petitioner Mr.Bose contends that he was working as a
Junior Superintendent. Thereafter he was promoted as
Senior Superintendent as evidenced by Ext.P2 order. He
contends that the post of Senior Superintendent is not
included in the subordinate service and therefore it must
be treated as equivalent to the post of Personal
Assistant. He further contends that there is no person
working as a Personal Assistant in the Water Transport
Department, at present, that the petitioner is the senior
most Superintendent and therefore he is entitled to be
considered as included in Category – II of the service. He
further refers to Ext.P4 communication sent by the then
Secretary of the Transport Department, reporting that
the petitioner, who is the senior most senior
Superintendent working in the Regional Office
Changanacherry, is eligible for promotion to the post of
Director. By Ext.P5 judgment, this Court directed the
Government to consider the claim of the petitioner and
others for promotion to the post of Director within a
period of two months from the date of judgment dated
W.P.(C)4545/2007 -3-
7.3.2006. Apparently, even contempt proceedings had to
be initiated against the Government, when there was
delay in considering the claim of the petitioner.
Ultimately, the Government passed Ext.P7 order,
wherein it was found that the State Water Transport
Services (Admn. Wing) consists of the Director, Personal
Assistant to Director and Works Manager. Petitioner does
not belong to these categories and is therefore not in the
feeder category. It is, therefore, stated in Ext.P7 that
the petitioner is not eligible for promotion to the post of
Director.
3. Ext.P7 further proceeds to state that though the
special rules provide for appointment by transfer from
any other service, petitioner cannot be considered for
appointment by transfer as his `CR’ for the year 2006
(Upto 19.9.2006) reveals that he is not suitable for
appointment to a responsible post. Subsequently, by
Ext.P12, Government issued a circular stating that they
are looking for competent officers for the post of
Director, State Water Transport Department, who are
W.P.(C)4545/2007 -4-
willing to be considered for appointment on a deputation
basis. Ext.P12 has been specifically challenged by the
petitioner in this writ petition. Petitioner has also sought
for a direction to the respondents not to implement
Ext.P12 so that the petitioner is to be appointed as a
Director.
4. The Writ petition was, originally, disposed of by
this Court by judgment dated 4.6.2007. It was ordered
by this Court that if there are eligible or suitable
candidates available for appointment by transfer, the
Government shall follow the said method, which is
permissible as per the special rules. It was further
observed that only in the absence of eligible or suitable
candidates for appointment by transfer, the post shall be
filled up by deputation as notified in Ext.P12. The Court
had also found that there is nothing illegal in Ext.P12.
State applied for a review of the said judgment and
review petition was allowed on 17.7.2007. This Court
referred to the counter affidavit filed in the writ petition,
wherein, it was specifically stated that the amendment
W.P.(C)4545/2007 -5-
to the special rules is under active consideration of the
State Government and until the formalities for
amendment are complied with, as an interim measure,
it was decided to fill up the post on deputation. The
application for review was allowed. Earlier judgment was
recalled and the writ petition was restored to file.
5. Subsequently, about 14 persons were called for
interview for appointment by deputation. Petitioner also
participated in that interview. Selection process for
deputation has not been finalised so far. In the
additional counter affidavit filed by the Government,
reference is made to the fact that the amendment to the
special rules is pending approval with the Government
and that in the draft special rules, it is proposed that the
requisite qualification prescribed for promotion to the
post of Director is a Degree from the recognized
University with MBA and preference will be given to
those who have Post Graduation and Technical
qualification. Therefore, since a fairly comprehensive
amendment to the special rules was contemplated,
W.P.(C)4545/2007 -6-
Government decided that pending amendment to the
special rules, they will fill up the post of Director on
deputation. As noted above, the Board interviewed 14
persons including the petitioner and the candidates were
assessed based on their provisional caliber, Management
ability, Corporate knowledge, Leadership and personality
and Communication ability. Five candidates were ranked
strictly based on merits. Select list has been circulated
for approval to the Minister for Transport and Chief
Minister. The decision, not to fill up the post of Director
on regular basis till the special rules are amended, was
taken at the highest level on 25.6.2006.
6. What has been, principally, challenged in the
writ petition is Ext.P12, by which, the Government
decided to call for applications from the interested
persons for appointment to the post of Director in the
State Water Transport Department on deputation. A
perusal of the additional counter affidavit filed by the
Government would show that a decision was taken by
the Government at the highest level not to fill up the
W.P.(C)4545/2007 -7-
post of Director on regular basis pending amendment to
the special rules. The Government has the power to do
so under Rule 9Bof Part II of KS&SSR. It cannot be said
that there is anything illegal or arbitrary in the
Government deciding to do so. The power of the
Government to do so was considered and upheld by a
Bench of this court in Kerala State Housing Board v
Murali (1989 (2) KLT 28).
7. For all these reasons, I do not find that there is
anything illegal in Ext.P12 and the decision taken by the
Government to fill up the post of Director, State Water
Transport Department on deputation. Ext.P12 is,
therefore, upheld.
8. Learned counsel for the petitioner submits that
the selection proceedings undertaken by the
Government for appointing a person to the post of
Director on deputation is illegal and is liable to be
interfered with on several grounds. In my view, the
validity of the same is not the subject matter of the
present writ petition. Contention of the petitioner, who
W.P.(C)4545/2007 -8-
had also participated in the selection process, is left
open with liberty to assail the same, if so advised, and if
permissible. Subject to the above observation, I find no
merit in the writ petition and the same is dismissed.
V. GIRI, JUDGE
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