## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
## **THE HONOURABLE SMT. JUSTICE P.V.ASHA**
**MONDAY, THE 09TH DAY OF MARCH 2020 / 19TH PHALGUNA, 1941**
## **WP(C).No.25912 OF 2018(L)**
## **PETITIONER/S:**
**SOORAJ M AGED 27 YEARS S/O.SUKUMARN, MULAMUKKIL HOUSE, OZHOOR P.O.,AYYAYA, MALAPPURAM - 676 307.**
**BY ADV. SRI.M.A.FAYAZ**
## **RESPONDENT/S:**
**1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT,DEPARTMENT OF AGRICULTURE, SECRETARIAT,THIRUVANANTHAPURAM - 695 001. 2 MANAGING DIRECTORS MEAT PRODUCTS OF INDIA LTD.,EDAYAR P.O., KOOTHATTHUKULAM,ERNAKULAM - 686 662.**
**R2 BY ADV. SMT.K.L.LAKSHMI RANI**
**OTHER PRESENT:**
**SENIOR COUNSEL SRI.RANJITH THAMPAN , SRGP .SMT.REKHA C.NAIR**
**THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
W.P.(C) No.25912/2018
## **JUDGMENT**
The petitioner who is presently working as Assistant (Machine Shop) in the Meat Products of India Ltd. is challenging Ext.P1 Special Rules for appointment to the post of Machine Operator and Ext.P6 notification inviting application for the post of Machine Operator by direct recruitment. The petitioner also seeks for a direction to fill up the vacancy from among Assistant (Machine Shop) with two years experience as in the case of direct recruitment.
2. It is stated that petitioner's appointment to the post of Assistant (Machine Shop) was by way of transfer. He was having the qualification of SSLC and ITI in Refrigeration and Air Conditioning and therefore the petitioner claims that when direct recruitment is made from among candidates with the very same educational qualification with two years experience, a period of 10 years' experience prescribed for promotion for persons who have been working as Assistant (Machine Shop)and had been even performing the duties attached to that post is
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discriminatory and that the said rule has to be declared illegal. According to the petitioner respondents have given promotion to one Mr.T.R.Rajendran, on the basis of his request in Ext.P9 representation dated 09.04.2008, as per Ext.P10 order relaxing the prescribed qualification and considering his experience in machine operation. It is his case that Mr.T.R.Rajendran was not even having the educational qualification or experience as provided in Ext.P1 Special Rules. It is his further case that several persons are engaged on daily wages who are not having the
qualification or experience. At the same time the petitioner points out that he has been working as Assistant (Machine Shop) under 2[nd] respondent for the last about 8 years.
3. Respondents have filed a counter affidavit stating that the petitioner does not have 10 years experience and therefore he is not qualified for the post, in accordance with the special rules. They also supported the appointment given to Rajendran saying that he was fully qualified.
4. Heard Sri.M.A.Fiaz, the learned Counsel for the petitioner and Sri.Ranjith Thampan, learned Senior Counsel duly assisted by the learned Standing Counsel for the respondents.
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5. Ext.P1 is the Special Rules which govern the method of appointment and qualification for the post of Machine Operator. Admittedly petitioner does not have the requisite experience for appointment by promotion. The question to be determined is whether insistence of 10 years' experience prescribed for promotion violates the fundamental rights of the petitioner on the ground that the experience prescribed for direct recruitment is only 2 years and whether this court can interfere with the same.
6. As per the Special Rules Ext.P1, the method of
appointment to the post of Machine Operator is “by promotion of Assistant (Machine Shop) and in the absence of experienced hands for promotion, by direct recruitment”. The qualification prescribed for promotion is 10 years' experience as Assistant (Machine Shop) under the respondent-MPI Ltd. Qualification prescribed for appointment by direct recruitment is (I) SSLC or equivalent (2) ITI certificate in Mechanical Refrigeration (3) Post qualification experience of 2 years in the operation of compressors in a refrigeration plant. The qualification for appointment as Assistant (Machine Shop) by direct recruitment is also (I) SSLC or equivalent (2) ITI certificate in Mechanical Refrigeration.
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7. The appointment of petitioner as Assistant (Machine Shop) was by direct recruitment. Appointment of Assistant (Machine Shop) is by transfer of willing Assistant (vehicle)/Assistant (production) Gr.I and in their absence by direct recruitment. Petitioner is challenging the prescription of 10 years' experience for appointment by promotion on the ground that he is having all the educational qualifications for the post even at the time of his appointment in the feeder category and because he has acquired experience in the feeder category since 2012. But it is seen that such qualifications are not prescribed for appointment to the feeder category by transfer method.
8. Even though the petitioner is having the educational qualification, Special Rules provides that one should have 10 years' experience which the petitioner does not admittedly possess. The fact that one Sri.Rajendran was granted promotion as per Ext.P10 order, in violation of Special Rules or in relaxation of the Special Rules cannot be a factor relevant to determine the illegality or vires of the Special Rules. This court will not be justified in directing the respondents to make promotions in violation of Special Rules.
9. It is settled law by a catena of judgments of the
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apex court and this court that the vires of Rules can be validly challenged only on limited grounds- that the rules are contrary to the provisions in the enabling Act, that it is contrary to any constitutional provisions or that it offends Article 14 of the Constitution _(_ _**Indian Express**_
_**Newspapers v. Union of India, (1985) 1 SCC 641).**_ The petitioner does not have a case that rules are issued without authority. The manner in which the appointments are to be made and the qualification for appointments to the posts in the service of an establishment are to be determined by the employer in accordance with its requirements and in the interest of the establishment. It would be open for the employer to consider whether 10 years' experience is necessary even in the case of
qualified hands who got appointment to the feeder category by direct recruitment or to those who are having all the educational qualification. All these are matters to be determined by experts in the field with reference to the conditions prevailing in the establishment and not for this court under Article 226 of the Constitution of India. The authority to determine the manner in which and the method by which appointment is to be made and also the
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qualification required for appointment to each post in an establishment, vests with the employer, who is well versed with its requirements, as held by the apex court
in _**Maharashtra Public Service Commission v. Sandeep Shriram Warade and Others**_ **:(2019) 6 SCC 362.**
10. The petitioner's claim to fill up the vacancy of Machine Operator from among qualified Assistant (Machine Shop) having the requisite educational qualification and two years' experience as in the case of direct recruitees can not be accepted. Promotion is made on the basis of seniority from among qualified hands. Direct recruitment is made after a process of selection from among candidates from open market within a particular age group. Therefore, the contention that qualification as well as experience for direct recruitment as well as promotion should be the same or that the rules require to be declared arbitrary or violative of constitutional provisions are not sustainable.
11. Petitioner does not have any fundamental right for promotion, though he is entitled to be considered for promotion. That consideration can only be in accordance with rules. At any rate in case petitioner is eligible in accordance with the notification issued for direct
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recruitment, petitioner would be free to submit application. As the notification for direct recruitment is already stayed, as and when the respondents issue fresh notification, petitioner would also be free to submit application and his case would be considered in accordance with rules.
The Writ Petition is dismissed accordingly, with the
aforesaid observations.
## **Sd/-**
## **P.V.ASHA**
rkc
**JUDGE**
## **APPENDIX**
## **PETITIONER'S/S EXHIBITS:**
|**EXHIBIT P1**|**PHOTOCOPY OF G.O.(MS) NO.296/99/AD DATED**|
|---|---|
||**15/10/1999 ISSUED BY THE 1ST RESPONDENT AND**|
||**THE RELEVANT EXTRACT OF THE QUALIFICATION**|
||**AND MODE OF APPOINTMENT AND QUALIFICATION**|
||**IN RESPECT OF MACHINE OPERATOR AND**|
||**ASSISTANT (MACHINE SHOP).**|
|**EXHIBIT P2**|**PHOTOCOPY OF THE ITI CERTIFICATE DATED**|
||**06/04/2015.**|
|**EXHIBIT P3**|**PHOTOCOPY OF THE APPOINTMENT ORDER DATED**|
||**25/10/2012.**|
|**EXHIBIT P4**|**PHOTOCOPY OF ORDER DECLARING PROBATION OF**|
||**THE PETITIONER DATED 25/04/2015.**|
|**EXHIBIT P5**|**PHOTOCOPY OF THE EXPERIENCE CERTIFICATE**|
||**DATED 24/07/2018.**|
|**EXHIBIT P6**|**PHOTOCOPY OF THE NOTIFICATION ISSUED BY THE**|
||**2ND RESPONDENT IN MATRUBHUMI DAILY DATED**|
||**24/07/2018.**|
|**EXHIBIT P7**|**PHOTOCOPY OF THE SHIFT DUTY SCHEDULE ISSUED**|
||**BY THE HEAD OF THE DEPARTMENT DATED**|
||**01/02/2014.**|
|**EXHIBIT P8**|**PHOTOCOPY OF THE SHIFT DUTY SCHEDULE ISSUED**|
||**BY THE HEAD OF THE DEPARTMENT DATED**|
||**31/05/2018.**|
|**EXHIBIT P9**|**PHOTOCOPY OF THE REQUEST SUBMITTED BY**|
||**SRI.T.R.RAJENDRAN DATED 09/04/2008.**|
|**EXHIBIT P10**|**PHOTOCOPY OF THE ORDER ISSUED BY THE 2ND**|
||**RESPONDENT DATED 01/07/2008.**|
|**EXHIBIT P11**|**PHOTOCOPY OF THE DUTY CHART IN RESPECT OF**|
||**THE REFRIGERATION PLANT DATED 01.09.2016.**|
|**EXHIBIT P12**|**PHOTOCOPY OF THE WORK ALLOCATION IN RESPECT**|
||**OF THE MACHINE ROOM TO MACHINE OPERATORS**|
||**DATED 03.08.2019.**|
|**EXHIBIT P13**|**PHOTOCOPY OF THE DUTY CHART IN RESPECT OF**|
||**THE REFRIGERATION PLAINT DATED 19.07.2019.**|
|**EXHIBIT P14**|**PHOTOCOPY OF THE SERVICE ORDER NO.PR2/58/I**|
||**100 DATED 01.07.2008 ISSUED BY THE 2ND**|
||**RESPONDENT.**|
## **RESPONDENT'S/S EXHIBITS:**
**EXHIBIT-R2(A) TRUE COPY OF THE COMMUNICATION DATED 13/07/2018 EXHIBIT-R2(B) TRUE COPY OF THE BIO DATA FURNISHED BY THE PETITIONER**
