Suresh P vs State Of Kerala on 5 April, 2010

Kerala High Court
Suresh P vs State Of Kerala on 5 April, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 7064 of 2010(G)


1. SURESH P.,
                      ...  Petitioner
2. ANISH P.,

                        Vs



1. STATE OF KERALA, REPRESENTED BY
                       ...       Respondent

2. THE DIRECTOR OF INDUSTRIAL TRAINING,

3. THE JOINT DIRECTOR OF INDUSTRIAL

                For Petitioner  :SRI.ELVIN PETER P.J.

                For Respondent  : No Appearance

The Hon'ble MR. Justice C.T.RAVIKUMAR

 Dated :05/04/2010

 O R D E R
                            C.T. RAVIKUMAR, J.
                     --------------------------------------------
                         W.P.(C). NO. 7064 OF 2010
                     --------------------------------------------

                     Dated this the 5th day of April, 2010


                                  JUDGMENT

The petitioners are Workshop Attenders attached to the Government

Industrial Training Institutes. This Writ Petition has been filed mainly with

the prayer to issue a writ of mandamus commanding the respondents to

forthwith fill up the existing vacancies of Junior Instructor/Arithmetic-cum-

Drawing Instructor. The further prayer in this Writ Petition is for a

declaration that the action of the respondents in not filling up the 45

vacancies of Junior Instructor/Arithmetic-cum-Drawing Instructor as illegal,

unconstitutional and violative of Article 14 of the Constitution of India. To

fortify the claim for promotion, the petitioners have also relied on Ext.P7

order dated 3.2.2010 of this Court, in W.P.(C).No.35316/2009.

2. The post of Junior Instructor/Arithmetic-cum-Drawing

Instructor is borne on the Kerala Craftsmen Training Subordinate Service

(for short ‘the Rules only). Going by the relevant provision under the

aforesaid Rules, promotions to the aforesaid post have to be effected from

Category 4 Workshop Attenders. On 8.12.2009, this Court passed an interim

W.P.(C) NO.7064/2010 2

order in W.P.(C).No.35316/2009 staying all further promotions to the post

of Junior Instructor/Arithmetic-cum-Junior Instructor except in accordance

with the Special Rules, pending consideration of the Writ Petition. Ext.P2

therein is the copy of the Special Rules and Ext.P3 is the common

gradation list of the Workshop Attenders. As per order dated 3.2.2010,

considering the stand taken by the third respondent therein, a clarification

was issued to the order dated 8.12.2009. It was made clear therein that the

availability of candidates possessing the prescribed qualifications under 2

(a) and (b) of the Special Rules is a matter to be looked into by the

competent authority at the time of effecting promotions in accordance with

the relevant provisions and further made clear that the possibility of

getting persons possessing prescribed qualifications under those categories

is not the look out of the third respondent. However, taking note of the

fact that in spite of such incompetency, the third respondent had entered

into a definite finding in respect of that issue. The second respondent

therein, the Director of Industrial Training was directed to consider the

question of effecting promotion to the post of Junior Instructor including

Arithmetic -cum-Drawing Instructor strictly in terms of the relevant rules

in the Special Rules as per order dated 3.2.2010. It was also made clear

therein that the interim order dated 8.12.2009 in W.P.(C).No.35316/2009

W.P.(C) NO.7064/2010 3

would not stand in the way of such consideration of qualified hands for

promotion. The grievance of the petitioner is that despite the said order

viz., Ext.P7 order, the respondents are not taking any steps to fill up the

available vacancies in the post of Junior Instructor/Arithmetic-cum-

Drawing Instructor. According to the petitioners, 45 vacancies are

available in the said cadre.

3. A scanning of the contentions raised in the averments of the

petitioners would reveal that they are staking claims of promotion on

account of the fact that 45 vacancies are available in the post of Junior

Instructor/Arithmetic-cum-Drawing Instructor. According to the

petitioners, they have a fundamental right for being considered for

promotion against those vacancies. If the petitioners are qualified seniors

at the time of consideration for effecting promotions to the aforesaid posts,

necessarily, they will have to be considered in accordance with the

relevant provisions under the Special Rules. But the question is whether

this Court can issue a writ of mandamus commanding the respondents to

fill up those existing vacancies of Junior Instructor/Arithmetic-cum-

Drawing Instructor. The settled position is that mere existence of

vacancies will not and cannot confer a right on the concerned

W.P.(C) NO.7064/2010 4

employee/employees for seeking a writ of mandamus commanding the

concerned respondents to fill up those vacancies. Whether to fill up the

existing vacancies or not in a department is primarily a matter which falls

within the realm of power of the Government. When the respondents are

taking steps for filling up those vacancies in terms of the relevant rules and

the seniority position in case the petitioners fall within the zone of

consideration and if they are fully qualified they would be considered for

promotion. The petitioners did not have a case that they were overlooked

in the matter of promotion and their juniors were given promotions

ignoring their legitimate claims. I am of the considered view that the

petitioners cannot, therefore, approach this Court with a prayer to issue a

writ of mandamus commanding the respondents to fill up those vacancies

merely because vacancies are existing in the post of Junior

Instructor/Arithmetic-cum-Drawing Instructors. In that view of the matter,

this Court cannot make a declaration as sought for in this Writ Petition. In

the context of the contentions of the petitioners, it is to be noted that as per

Ext.P7, this Court virtually made it clear that the order dated 8.12.2009 in

W.P.(C).No.35316/2009 will not be an impediment for effecting

promotions to the aforesaid posts. Therefore, it is up to the concerned

competent authority to decide whether the vacancies available in the post

W.P.(C) NO.7064/2010 5

of Junior Instructor/Arithmetic-cum-Drawing Instructor is to be filled up

or not taking into account various aspects. However, the respondents

cannot ignore the fact that keeping a large number of vacancies in the post

of Junior Instructor/Arithmetic-cum-Drawing Instructor unfilled would

detrimentally affect the student community in the said institutions as a

whole. Therefore, it will only be appropriate for the Government to

bestow attention in the matter, at the earliest.

Subject to the above observations, this Writ Petition is dismissed.

(C.T. RAVIKUMAR, JUDGE)

spc

W.P.(C) NO.7064/2010 6

C.T. RAVIKUMAR, J.

W.P.(C). NO. /2010

JUDGMENT

3rd March, 2010

W.P.(C) NO.7064/2010 7

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