Suma Devi K v State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **WEDNESDAY, THE 23RD DAY OF NOVEMBER 2016/2ND AGRAHAYANA, 1938** **WP(C).No. 31796 of 2015 (Y) ----------------------------** **PETITIONER: ------------** **SUMA DEVI K, RECEPTIONIST,P & A SECTION, KERALA TOURISM DEVELOPMENT CORPORATION LTD THIRUVANANTHAPURAM.** **BY ADVS.SRI.N.MANOJ KUMAR SMT.JAYASREE MANOJ** **RESPONDENTS:** **------------** **1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT,TOURISM DEPARTMENT,SECRETARIAT,THIRUVANANTHAPURAM-695001.** **2. KERALA TOURISM DEVELOPMENT CORPORATION LTD, CORPORATE OFFICE,MASCOT SQUARE,THIRUVANANTHAPURAM695033:REPRESENTED BY ITS MANAGING DIRECTOR.** **3. THE MANAGING DIRECTOR, KERALA TOURISM DEVELOPMENT CORPORATION LTD, CORPORATE OFFICE,MASCOT SQUARE, THIRUVANANTHAPURAM-695033.** **4. THE KERALA PUBLIC SERVICE COMMISSION, PATTOM,THIRUVANANTHAPURAM-695033, REPRESENTED BY ITS SECRETARY.** - ***ADDL R5 IMPLEADED:** **Addl. 5. RAMESH KUMAR.G** **JUNIOR SUPERINTENDENT, MARKETING DIVISION, KERALA TOURISM DEVELOPMENT CORPORATION LTD., CORPORATE OFFICE, MASCOT SQUARE, THIRUVANANTHAPURAM - 695 033.** ***(ADDITIONAL RESPONDENT 5 ADDED AS PER ORDER DATED 22.02.2016 IN I.A NO.2031/2016 IN THE W.P.C)** **R2-R3 BY ADV. SRI.THOMAS MATHEW NELLIMOOTTIL, SC, KTDC ADDLR5 BY ADV. SRI.B.UNNIKRISHNA KAIMAL R4 BY ADV. SRI.P.C.SASIDHARAN, SC, KPSC BY GOVERNMENT PLEADER SMT.MARY BEENA JOSEPH** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 31796 of 2015 (Y)** ## **WP(C).No. 31796 of 2015 (Y) ----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-----------------------** **P1 TRUE COPY OF THE POST GRADUATE DIPLOMA CERTIFICATE IN MARKETING MANAGEMENT ISSUED BY THE UNIVERSITY OF KERALA TO THE PETITIONER** **P2 TRUE COPY OF THE MASTER OF BUSINESS ADMINISTRATION DEGREE CERTIFICATE ISSUED TO THE PETITIONER BY THE UNIVERSITY OF KERALA** **P3 TRUE COPY OF THE CIRCULAR DATED 24.07.2010 ISSUED BY THE 3RD RESPONDENT** **P4 TRUE COPY OF G.O.(MS)NOI.48/2011/TSM DATED 14.02.2011 ALONG WITH ANNEXURE** **P5 TRUE COPY OF CIRCULAR DATED 16.02.2011 WITHOUT ANNEXURE** **P6 TRUE COPY OF G.O.(MS)NO.222/2010/TSM DATED 22.06.2010 ALONG WITH RELEVANT PAGE OF THE ANNEXURE CONTAINING THE QUALIFICATION FOR THE POST OF DEPUTY MANAGER(MARKETING)** **P7 TRUE COPY OF THE JUDGMENT DATED 09.07.2015 IN WP(C)5886 OF 2011** **P8 TRUE COPY OF THE RECRUITMENT(QUALIFICATION & METHOD OF APPOINTMENT)REGULATIONS FOR THE KERALA TOURISM DEPARTMENT CORPORATION LIMITED 2014** **P9 TRUE COPY OF THE ORDER DATED 26.01.2015 OF THE 3RD RESPONDENT** **P10 TRUE COPY OF THE CIRCULAR DATED 06/10/2015 ISSUED BY THE 3RD RESPONDENT** **P11 TRUE COPY OF THE REPRESENTATION DATED 09/10/2015 SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT** **P12 TRUE COPY OF THE REPRESENTATION DATED 09/10/2015 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT** **P13 TRUE COPY OF THE APPLICATION DATED 14/10/2015 OF THE PETITIONER.** **RESPONDENT(S)' EXHIBITS:** **-----------------------** **EXT.R2(A):TRUE COPY OF APPOINTMENT ORDER OF MR.JOSEPH BENZY** **EXT.R2(B):TRUE COPY COUNTER AFFIDAVIT FILED BY STATE OF KERALA IN WP (C).NO.5866/2011** **EXT.R2(C):TRUE COPY COUNTER AFFIDAVIT FILED BY KTDC IN WP(C). NO.5866/2011** **EXT.R2(D):TRUE COPY OF ANNEXURE TO THE GOVERNMENT ORDER NO.GO(MS) 48/2011/TSM DATED 14.2.2011** ## **WP(C).No. 31796 of 2015 (Y)** **EXT.R2(E): TRUE COPY OF LETTER NO.KTDC/PA(3)/5282/09 DATED 20.08.2009** **EXT.R2(F): TRUE COPY OF PROPOSAL FOR THE CREATION OF INDEPENDENT MARKETING DEPARTMENT** **EXT.R2(G):TRUE COPY OF ORDER DATED 11.11.2014 OF TOURISM (B) DEPARTMENT)** **EXT.R2(H):TRUE COPY OF OBSERVATIONS OF ACCOUNTANT GENERAL** **EXT.R5(A): TRUE COPY OF THE JUDGMENT DATED 9.7.2015 OF THIS HON'BLE COURT IN WP(C).NO.5886/11** **EXT.R5(B): TRUE COPY OF THE APPLICATION DATED 17.10.2015 SUBMITTED BY THE 5TH RESPONDENT TO THE 3RD RESPONDENT FOR THE POST OF MARKETING** **EXT.R5(C):TRUE COPY OF THE APPLICATION DATED 17.10.2015 SUBMITTED BY THE 5TH RESPONDENT TO THE 3RD RESPONDENT FOR THE POST OF DY.MANAGER (MARKETING)** **EXT.R5(D): TRUE COPY OF THE APPLICATION DATED 17.10.2015 SUBMITTED BY THE 5TH RESPONDENT TO THE 3RD RESPONDENT FOR THE POST OF ASSISTANT MANAGER(MARKETING)** **//TRUE COPY//** **P.A TO JUDGE** **A.K.JAYASANKARAN NAMBIAR, J. ............................................................. W.P.(C).No.31796 of 2015 ............................................................. Dated this the 23[th] day of November, 2016** ## **J U D G M E N T** The petitioner, who is working as a Receptionist under the 2[nd] respondent Corporation, responded to Ext.P3 Notification dated 24.07.2010, calling for applications from internal candidates for promotion to the post of Deputy Manager (Marketing), to a vacancy that arose in February 2010. As per the extant Recruitment Rules under the 2[nd] respondent Corporation, the promotion to the post of Deputy Manager (Marketing) was to be from internal candidates in the Corporation having an MBA with Marketing as an optional subject or a Post Graduate Diploma in Marketing Management. The petitioner responded to the Notification since, on the date of arising of the vacancy, she possessed the Post Graduate Diploma qualification in Marketing Management, and therefore, she was a qualified candidate for consideration for promotion as per the said Rules. It would appear that, subsequently, a separate marketing division was created in the respondent Corporation, and three cadres of Marketing Manager, Assistant Manager and Marketing -2- **W.P.(C).No.31796 of 2015** Executive were newly created with 1, 2 and 6 posts respectively in each of those cadres. The respondent Corporation, thereafter, after consultation with the Kerala Public Service Commission, formulated new Recruitment Rules for the respondent Corporation and the said Rules were brought into force through Ext.P8 Government order dated 11.11.2014. As per the new Rules, the marketing wing of the respondent Corporation was to comprise of a hierarchy of 4 posts, namely, Marketing Executives, Assistant Manager (Marketing), Deputy Manager (Marketing) and Marketing Manager in the ascending order of hierarchy. The mode of appointment of the lowest cadre of Marketing Executive was to be by transfer from qualified employees in the service of the respondent Corporation, who were approved probationers in the initial appointment, and through direct recruitment through the Public Service Commission. A note appended to the Rules indicated that the appointment by transfer and direct recruitment was to be in the ratio of 1:2. The qualifications stipulated in respect of both the methods of appointment was, an MBA with specialisation in marketing obtained from a recognised University/Institution or MBA in any discipline with Post Graduate Diploma in Marketing obtained from a recognised University. The -3- **W.P.(C).No.31796 of 2015** appointment to the higher posts of Assistant Manager (Marketing), Deputy Manager (Marketing) and Marketing Manager was to be through promotion from the immediate lower posts, subject to the condition that the incumbent had to be an approved probationer in the immediate lower post. When the petitioner apprehended that the selection to the posts of Deputy Manager (Marketing) would be done only in accordance with the new Recruitment Rules, she approached this Court through W.P.(C).No.5886 of 2011 seeking to quash Ext.P4 Government order dated 14.02.2011, which notified and brought into force the new cadres of Marketing Manager, Assistant Manager and Marketing Executive in the respondent Corporation. In the said writ petition, the petitioner also sought for a direction to the respondents to include the MBA/Post Graduate Diploma in Marketing and Management (Distance Education) from all recognised Universities/Institutions having the approval of Distant Education Council and AICTE, as a qualification for appointment to the post of Assistant Manager and Marketing Executive in the 2[nd] respondent Corporation. The said writ petition was disposed by Ext.P7 judgment, which took note of the Government order dated 11.10.2014, which approved the new Recruitment Rules in the respondent Corporation, and found that -4- ## **W.P.(C).No.31796 of 2015** the appointment to the posts of Deputy Manager (Marketing), as also the other posts of Marketing Executive, Assistant Manager and Marketing Manager, would have to be done strictly in accordance with the qualifications and method of appointments contained in the new Recruitment Rules, which came into force with effect from 22.06.2010. Thereafter, and pursuant to the directions of this Court in Ext.P7 judgment, Ext.P10 Circular was issued by the respondent Corporation calling for applications from permanent employees of the Corporation possessing the prescribed qualifications for the posts of Deputy Manager (Marketing), Assistant Manager (Marketing) and Marketing Executive for appointment to the said posts with effect from the date of occurrence of the vacancy in the said posts, which was stated to be 01.03.2010 in the case of Deputy Manager (Marketing) and 14.02.2011 in the case of Assistant Manager (Marketing) and Marketing Executives. In the writ petition, the petitioner impugns Ext.P10 Circular, inter alia, on the contention that, since she was a person who was qualified to apply for the post of Deputy Manager (Marketing), as per the extant Recruitment Rules, which would, under normal circumstances, have applied on the date of occurrence of the vacancy in the post -5- ## **W.P.(C).No.31796 of 2015** of Deputy Manager (Marketing), namely, 01.03.2010, the respondents could not insist on the petitioner possessing the qualifications stipulated in the new Recruitment Rules, which were introduced only subsequently, for the purposes of appointing a Deputy Manager (Marketing) under the respondent Corporation. There is also an ancillary prayer to declare that, the filling up of the posts of Marketing Executive, Assistant Manager (Marketing) and Deputy Manager (Marketing) will only be in accordance with the new Recruitment Rules. 2. A counter affidavit has been filed on behalf of the respondent Corporation as also the 5[th] respondent. The stand of the respondent Corporation is essentially that the filling up of the various post notified in Ext.P10 Circular will be based strictly on the new Recruitment Rules, and the said Recruitment Rules clearly provide, inter alia, that employees of the Kerala Tourism Development Corporation Ltd. (KTDC) would be eligible for appointment by transfer to a vacancy in a post, only if they possessed the qualifications as specified in Annexure-I of the regulations, on the actual date of occurrence of such vacancy in those posts. It is contended, therefore, that since the new -6- ## **W.P.(C).No.31796 of 2015** Recruitment Rules clearly provide that the qualifications, as mandated under the new Rules, would have to be possessed as on the actual date of occurrence of the vacancy in the posts concerned, in the absence of a challenge to the Rules itself, the petitioner could not be heard to contend that the qualifications as per the new Recruitment Rules cannot be made applicable to the date of occurrence of vacancy in the posts of either the Deputy Manager (Marketing) or Marketing Executive. 3. I have heard the learned counsel appearing for the petitioner, the learned Standing counsel for the respondent Corporation, the learned counsel for the 5[th] respondent, the learned Standing counsel for the Kerala Public Service Commission and the learned Government Pleader for the State Government. 4. On a consideration of the facts and circumstances of the case and the submissions made across the bar, I find that, the challenge of the petitioner against Ext.P10 Circular is essentially on the ground that, she was a person, who possessed the requisite qualification for consideration to the post of Deputy Manager -7- ## **W.P.(C).No.31796 of 2015** (Marketing) to the vacancy that arose with effect from 01.03.2010, as per the extant Recruitment Rules. The contention of the petitioner is that, since she was qualified as per the extant Recruitment Rules on the date of arising of the vacancy, a mere revision of the Recruitment Rules could not deprive her of her vested right for consideration to the post. It is also her case, relying on the decision of the Supreme Court in **Deepak Agarwal** **and Another v. State of Uttar Pradesh and Others (2011 (6) SCC 725) ,** that the qualifications possessed by her, as on the date of consideration of her candidature, should be taken into account and when so done, she would be a person qualified in all respects, even as per the new Rules, for the post of Marketing Executive. I'm afraid I cannot accept the said contention of the learned counsel for the petitioner. As already noted, Ext.P8 Recruitment Rules, which were brought into force with effect from 22.06.2010, clearly stipulate that persons aspiring for promotion to any of the posts notified pursuant to the new Recruitment Rules would have to be possessed of the qualifications prescribed therein, as on the date of arising of the vacancy in the respective posts. The effect of the Rules, therefore, is to make the new qualifications applicable even to a prior period when the vacancy, in the posts dealt with -8- **W.P.(C).No.31796 of 2015** under the new Recruitment Rules, arose, thereby mandating that only such persons, who had the qualifications as per the new Rules, could apply for appointment to the vacancies notified in the said posts. It is relevant to note that, the express provision of the Rules has not been challenged by the petitioner in the writ petition. Further by Ext.P7 judgment of this Court, which has become final, there is a clear direction that the respondent Corporation shall fill up the vacancies, in the posts contemplated in the new Recruitment Rules in the Marketing Division of the respondent Corporation, only in accordance with the new Recruitment Rules. Under the said circumstances, I am of the view that, the petitioner who did not possess the qualifications mandated under the new Recruitment Rules for the post of Deputy Manager (Marketing), as on the date of arising of the vacancy in the said post, cannot claim a right for consideration to the said post, to a vacancy that arose with effect from 01.03.2010, solely based on the fact that, as on 01.03.2010 she possessed the requisite qualifications as per the extant Recruitment Rules. As a matter of fact, with the introduction of the new Recruitment Rules, the only post that the petitioner can aspire for is the post of Marketing Executive, subject to the petitioner possessing the -9- ## **W.P.(C).No.31796 of 2015** required qualification for the said post as on 14.02.2011, the date of arising of the vacancies in the said post. It is not in dispute that, even as on 14.02.2011 the petitioner had not obtained the necessary MBA qualification required for considering her to the said post. Resultantly, I am of the view that, the prayers sought for in the writ petition cannot be granted. The writ petition, at the instance of the petitioner, in its challenge against Ext.P10 Circular, therefore, fails, and is accordingly dismissed. Sd/- **A.K.JAYASANKARAN NAMBIAR JUDGE** mns/23.11.16