IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 14795 of 2009(T)
1. M.ALEXANDER, FORMERLY WORKING AS
... Petitioner
2. THOMAS MATHEW,ASSISTANT ENGINEER,GROUND
3. K.T.MURALI,ASSISTANT ENGINEER,
4. P.BABU,FORMERLY WORKING AS ASSISTANT
Vs
1. STATE OF KERALA,REPRESENTED BY THE
... Respondent
2. THE DIRECTOR,GROUND WATER DEPARTMENT,
3. WATER RESOURCES(GW)DEPARTMENT,
For Petitioner :SRI.V.R.KESAVA KAIMAL
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :27/07/2010
O R D E R
ANTONY DOMINIC, J.
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W.P.(C) NOS. 14795 & 15117 OF 2009
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Dated this the 27th day of July, 2010
J U D G M E N T
WP(C) No.14795/2009
Petitioners were working as Master Drillers under the Ground
Water Department. By Ext.P1 order, they were promoted to the
post of Assistant Engineers on a provisional basis and on
condition that they will be reverted when PSC hands are available.
Subsequently, based on Ext.P2 report of the inspection conducted
by the Finance Inspection (Non technical) Department to the
effect that the promotions given to them were irregular, they
apprehended reversion to the post of Master Drillers. At that
stage, WP(C) No.18487/08 was filed before this Court and the writ
petition was disposed of by Ext.P3 judgment clarifying that if the
petitioners are proposed to be reverted, they will be given notice
in that regard and heard by the Department before orders are
passed.
2. Accordingly, they were issued Ext.P5 notice requiring
them to appear for a hearing on 17/1/2009. It is stated that in
pursuance thereof, they appeared before the 1st respondent and
WPC Nos.14795 & 15117/09
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submitted Exts.P6 and P7 hearing notes. However, Ext.P8 order
was issued by the 1st respondent directing the 2nd respondent to
revert the petitioners with effect from the date of promotion and
to take urgent necessary steps to recover the financial loss
sustained to the Government on account of their promotion. In
pursuance to Ext.P8, 2nd respondent issued Ext.P9 proceedings
according sanction for reversion of the petitioners and ordering
recovery of the loss sustained to the Government. It is on the
issuance of Ext.P9 that this writ petition was filed challenging
Exts.P8 and P9.
3. One of the contentions raised is that before Ext.P5
notice of hearing was issued on 6/1/2009, petitioners were
already ordered to be reverted as early as on 18/10/2008 and
therefore, the notice was issued and they were heard, when a
decision was already taken to revert the petitioners. This
contention is raised referring to Ext.P4 note, which was obtained
by the petitioners invoking the provisions of the Right to
Information Act. The other contention raised is that under the
Special Rules applicable, the post is to be filled up in the ratio of
1:1 by promotion and direct recruitment. It is contended that the
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promotion quota is to be filled up in the ratio of 6:3:1 among
graduates, diploma holders and certificate holders. It is stated
that out of the 9 posts earmarked for promotion, one post is to be
filled up from among certificate holders, and that, if so, one of the
petitioners is entitled to be accommodated against that quota. It
is stated that having regard to the fact that petitioners 1 and 4
have retired during the pendency of the writ petition, the only
surviving claim now is that of the third petitioner. It is contended
that due to absence of eligible hands for promotion or
appointment from the other categories, they should be allowed to
continue as Assistant Engineers.
4. Learned Government Pleader submits that under the
Special Rules, the maximum post available for certificate holders
is one post. It is stated that at the time when the petitioners were
promoted, there was already one certificate holder occupying the
post of Assistant Engineer. It is stated that, therefore, the very
promotion of the petitioners by Ext.P1 was erroneous. Additional
respondent who got himself impleaded submits that PSC has
conducted selection and published a rank list and he is included
in the said list. It is stated that the appointment of the petitioners
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evidenced by Ext.P1 was on condition that they will be reverted
once the PSC hands are available. It is stated not only that the
promotion of the petitioners is irregular for the reason stated in
Ext.P2 report, in any case, they are liable to be reverted since PSC
candidates are available.
5. Admittedly, the petitioners are certificate holders. Their
claim for promotion can only be to the one post earmarked for
certificate holders. If as stated by the learned Government
Pleader, there was already one person occupying the post in that
quota, there could not have been further promotion of certificate
holders. On the other hand, if as stated by the petitioners, that
person has retired and the post has fallen vacant, it is up to the
appointing authority to consider the eligibility of the petitioners in
terms of the Special Rule and to promote either of them.
Therefore, at any rate, the promotion of the petitioners at the
time when certificate holders was already in place, was
impermissible and if the post held by them were to be filled up by
direct recruitment, the Appointing Authority should have reported
those vacancies to the PSC and the PSC is to advice candidates
from the list which is currently available.
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6. Therefore, writ petition is disposed of directing the 2nd
respondent to assess whether any vacancy in the promotion
quota is available to be accommodated by certificate holders, and
if so, consider the case of the certificate holders including the
petitioners and also to report the vacancies, if any, available in
the direct recruitment quota to the PSC to advice candidates
from the ranked list that is available. This process shall be
completed within 2 months.
7. Ext.P8 shows that the petitioners were to be reverted
and the pecuniary loss suffered by the Government is to be
recovered. Having regard to the fact that the petitioners were
promoted and they discharged the duties and received wages for
the work they did, and also since two of them have retired, I do
not find any justification for ordering recovery from the amount
paid to the petitioners. Therefore, respondents shall not recover
any amount paid towards the salary and allowances to the
petitioners.
8. However, in respect of those who have retired, it is
directed that it will be open to the respondents, if necessary, to
revise the terminal benefits that are payable on the basis that
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they retired from service as Master Driller.
WP(C) No. 15117/2009
9. The claim of the petitioner is that if the third petitioner
in WP(C) No.14795/2009 is promoted as Assistant Engineer, he is
entitled to be promoted to the post of Master Driller. The fortunes
of this petitioner will depend upon the implementation of the
directions in the judgment in WP(C) No.14795/2009. In view of
the above, this writ petition is disposed of directing that
depending upon the outcome of the direction in the judgment in
WP(C) No.14795/09, if warranted, appropriate orders will be
passed by the Director.
Writ petitions are disposed of as above.
ANTONY DOMINIC, JUDGE
Rp