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.
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W.P.(C). NO. 7064 OF 2010
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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
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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
