Shaji M.K. v. The High Court of Kerala, Ernakulam

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE BASANT BALAJI ``` ``` THURSDAY, THE 30[TH] DAY OF MAY 2024 / 9TH JYAISHTA, 1946 ``` ## `W.P.(C) NO.14231 OF 2024` ``` PETITIONER: ``` ``` SHAJI M.K., AGED 50 YEARS, OVERSEER GRADE-II, HIGH COURT OF KERALA, ERNAKULAM, COCHIN, PIN – 682 031. ``` ``` BY ADVS. M.U.VIJAYALAKSHMI K.JAJU BABU (SR.) BRIJESH MOHAN ``` ## `RESPONDENT:` ``` THE HIGH COURT OF KERALA, ERNAKULAM, KOCHI, REPRESENTED BY THE REGISTRAR GENERAL, PIN – 682 031. ``` ``` BY ADV P.C.SASIDHARAN ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 _WPC. No. 14231/2024_ ## JUDGMENT ( _Dated: 30[th] May, 2024)_ The petitioner entered the service of the respondent as a Helper on 28.03.2011. The Kerala High Court Service Rules, 1970 was superseded by the Service Rules 2007, and the qualification for an Electrician was SSLC or equivalent with an ITI certificate in the trades Electrician cum Plumber or Wireman and license in plumbing. For the post of Overseer Grade I, the method of appointment was by transfer, deputation, or direct recruitment, and the qualification was plus two or equivalent and a Degree/Diploma in Electrical Engineering. The post of Overseer Grade-I was upgraded to Assistant Engineer with effect from 06.02.2014, and the post of Overseer Grade-I was substituted as Overseer Grade-II. The petitioner was appointed by transfer as Overseer Grade-II on a provisional basis as per order dated 19.12.2018 and was regularized with effect from 19.12.2018. 2. The Government, as per G.O.(Rt) No.138/2013-Home dated 18.01.2013, sanctioned the upgradation of the post of Overseer Grade-I in the Kerala High Court Service to Assistant Engineer with effect from 06.02.2014. The qualification prescribed for the post of Assistant Engineer 3 _WPC. No. 14231/2024_ as per Ext.P7 is Plus Two or equivalent, Degree/Diploma in Electrical Engineering. 3. The Plus Two course was introduced in High Schools only in the year 1990, and SSLC holders were fully eligible to join the course of Diploma in Engineering. The incumbent was given protection and was continuing in the post of Assistant Engineer, though not having a Plus Two qualification. The incumbent is retiring on 31.05.2024. Therefore, the petitioner submitted a submission on 29.11.2023 pointing out that he has SSLC with ITI qualification (electrician) and also a Diploma in Electrical Engineering in 1[st] class and therefore, he may be considered for promotion as Assistant Engineer by granting relaxation already given to the existing Assistant Engineer as per Ext.P12. 4. The petitioner’s case is that the incumbent to the post of Assistant Engineer only has SSLC and a Diploma in Electrical Engineering, like the petitioner. The petitioner also contends that he has all the technical qualifications for holding the Assistant Engineer post; but he does 4 _WPC. No. 14231/2024_ not have a Plus Two qualification and is only an SSLC pass holder. Therefore, he approached this court for the following reliefs: - i. _Declare that limiting the prescription of SSLC or equivalent qualification for promotion to the cadre of Assistant Engineer in the case of the incumbent in the post of Overseer Grade-I as on 6.2.2014 is arbitrary, illegal, and unconstitutional and further declared that the prescription of SSLC or equivalent is available to all members of the Kerala High Court Service having Degree/Diploma in Electrical Engineering as on 6.2.2014._ - ii. _Issue a writ of certiorari or any other appropriate writ, direction, calling for the records leading to Ext.P13 and quash the same._ - iii. _Issue a writ of mandamus or any other appropriate writ, direction, directing the respondent to promote the petitioner as Assistant Engineer in the vacancy arising consequent to the retirement of the present incumbent having the very same qualification now possessed by the petitioner, i.e., SSLC and Diploma in Electrical Engineering and grant him all consequential benefits._ - iv. _Such other and further orders which this Hon’ble Court may deem just and proper in the facts and circumstances of the case,_ - v. _Award cost to the petitioner, and_ - vi. _The petitioner may be permitted to dispense with the filing of translation of vernacular documents._ 5. Sri. P.C.Sasidharan, Standing Counsel appearing for the respondent, has argued that promotions are to be effected from those qualified Overseers Grade-II to the post of Assistant Engineer and the 5 _WPC. No. 14231/2024_ minimum qualification prescribed for the post of Assistant Engineer with effect from 06.02.2014 is Plus Two or equivalent with Degree/Diploma in Electrical Engineering. In Ext.P7 it is also made clear that in the case of the incumbent in the post of Overseer Grade-I as of 06.02.2014, SSLC or equivalent and Degree/Diploma in Electrical Engineering is enough, therefore, the incumbent was in the post of Overseer Grade–I as of 06.02.2014. Therefore, he was protected to get a promotion to the post of Assistant Engineer as of 06.02.2014. 6. The same issue came before the Apex Court in the decision reported in _State of Jammu and Kashmir v. Shiv Ram Sharma and others [(1999) 3 SCC 653]_ . An introduction was made to educational qualifications, rendering some existing employees ineligible for promotion. The said introduction was challenged before the Hon’ble High Court of Jammu and Kashmir, and ultimately, it reached the Apex Court. The Apex Court held as follows: _6. “The law is well settled that it is permissible for the Government to prescribe appropriate qualifications in the matter of appointment or promotion to different posts. The_ 6 _WPC. No. 14231/2024_ _case put forth on behalf of the respondents is that when they joined the service, the requirement of passing matriculation was not needed, and while they are in service, such prescription has been made to their detriment. But it is clear that there is no indefeasible right in the respondents to claim for promotion to a higher grade to which qualification could be prescribed and there is no guarantee that those rules framed by the Government in that behalf would always be favourbale to them. In Roshan Lal Tandon v. Union of India, it was held by this court that once appointed, an employee has no vested right in regard to the terms of service but acquires a status and, therefore, the rights and obligations thereto are no longer determined by the consent of the parties, but by statute or statutory rules which may be framed and altered unilaterally by the Government. The High Court has also noticed that there was an avenue provided for promotion but the prescription of the qualification was not favourable to the respondents. The principle of avoiding stagnation in a particular post will not be with reference to a particular individual employee but with reference to the conditions of service as such. As long as the rules provide for conditions of service making an avenue for promotion to higher grades, the observations made in T.R. Kothandaraman case stand fulfilled. In that view of the matter, we do not think the High Court was justified in allowing the writ petitions filed by the respondents”._ The petitioner joined the post as a Helper in 2011 and was promoted to the post of Overseer Grade-II only on 19.12.2018. The post was regularized as per Ext.P11 proceedings dated 25.03.2019. On 06.02.2014, the petitioner was not holding the post of Overseer Grade-I and was in the 7 _WPC. No. 14231/2024_ post of Helper. Therefore, he cannot seek for the protection as stated in Ext.P7. When the recruitment rules/service conditions specifically prescribe a particular qualification for a specific post, the same has to be strictly followed. The petitioner’s request for relaxation as per Ext.P12 has been rejected by Ext.P13 official memorandum. Therefore, relying on the dictum by the Apex Court in _Shiv Ram Sharma and others_ case cited _(supra)_ , the petitioner’s request has been rightly rejected. Ext P13 is in order, and therefore, the petitioner cannot have any declaration as sought in this writ petition. Hence, the Writ Petition stands dismissed. _Sd/-_ BASANT BALAJI, JUDGE ss 8 _WPC. No. 14231/2024_ ``` APPENDIX OF WP(C) 14231/2024 ``` ``` PETITIONER EXHIBITS: ``` ``` Exhibit P1TRUE COPY OF THE RELEVANT PAGES OF SSLC BOOK DATED 30.03.1988 IN THE NAME OF PETITIONER Exhibit P2TRUE COPY OF THE NATIONAL TRADE CERTIFICATE GRANTED IN FAVOUR OF THE PETITIONER BY THE STATE COUNCIL FOR VOCATIONAL TRAINING ON FEBRUARY 1994 ``` ``` Exhibit P3TRUE COPY OF THE NATIONAL APPRENTICESHIP CERTIFICATE GRANTED IN FAVOUR OF THE PETITIONER BY THE NATIONAL COUNCIL FOR VOCATIONAL TRAINING IN NOVEMBER 1995 ``` ``` Exhibit P4TRUE COPY OF THE CERTIFICATE OF DIPLOMA ISSUED BY THE STATE BOARD OF TECHNICAL EDUCATION TO THE PETITIONER ON 07.07.2018 ``` ``` Exhibit P5TRUE COPY OF THE RELEVANT EXTRACT OF THE PROVISIONS CONTAINED IN THE KERALA HIGH COURT SERVICE RULE 1970 ``` ``` Exhibit P6TRUE COPY OF THE RELEVANT PAGES OF KERALA HIGH COURT SERVICE RULES 2007 ``` ``` Exhibit P7TRUE COPY OF THE RELEVANT PAGES OF KERALA HIGH COURT SERVICE RULES 2007 RELATING TO SERVICE CONDITIONS OF EMPLOYEES OF THE HIGH COURT OF KERALA ``` - `Exhibit P8 TRUE COPY OF THE OFFICIAL MEMORANDUM NO.A365607/2008 DATED 06.06.2011 OF THIS HON'BLE COURT.` - `Exhibit P9 TRUE COPY OF THE OFFICIAL MEMORANDUM NO.A614418/2014 DATED 30.05.2014 OF THIS HON'BLE COURT.` ``` Exhibit P10TRUE COPY OF THE ORDER NO.A6-77742/2018 DATED 19.12.2018 OF THIS HON'BLE COURT ``` ``` Exhibit P11TRUE COPY OF THE ORDER NO.A6-77742/2018 DATED 25.03.2019 OF THIS HON'BLE COURT Exhibit P12TRUE COPY OF THE SUBMISSION DATED 29.11.2023 SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENT. ``` 9 _WPC. No. 14231/2024_ ``` Exhibit P13TRUE COPY OF THE LETTER/OFFICIAL MEMORANDUM NO.HCKL/9767/2023-A5(1) DATED 15.03.2024 OF THIS HON'BLE COURT. ``` ``` Exhibit P14TRUE COPY OF THE SCHEDULED CASTE CERTIFICATE VIDE SR.NO.8519/2011/A5 DATED 07.06.2011 ISSUED IN FAVOUR OF THE PETITIONER. ``` ``` Exhibit P15TRUE COPY OF THE RELEVANT EXTRACT OF THE PROSPECTUS FOR THE YEAR 2023-24 RELATING TO ADMISSION TO DIPLOMA PROGRAMMES IN POLYTECHNIC COLLEGES UNDER SBTE Exhibit P16TRUE COPY OF THE BIO-DATA OF THE PETITIONER. ```