WA Nos.1407 & 1412 of 2023

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **TUESDAY, THE 10[TH] DAY OF OCTOBER 2023 / 18TH ASWINA, 1945** **WA NO.1407 OF 2023 JUDGMENT IN WP(C) 8712/2023 OF HIGH COURT OF KERALA DATED 26.7.2023** **------------------** ## **- APPELLANT/NOT A PARTY IN THE WPC :** ARDHER.S., AGED 34 YEARS S/O.T.T.K.SASI, REGIONAL OFFICER (TEMPORARY) KERALA ARTISANS DEVELOPMENT CORPORATION, REGIONAL OFFICE, KOZHIKODE, PIN – 673 001 RESIDING AT AZAD HOUSE, CHOKLI.P.O., THALASSERY, KANNUR DISTRICT, PIN – 670 672. BY ADVS. M.SASINDRAN S.SHYAM KUMAR ## **- RESPONDENTS/PETITIONER & RESPONDENTS :** 1 NIKHIL PROMOD, S/O.P.N.PROMOD, AVITTAM, NH BYE PASS, LORDS HOSPITAL JUNCTION, ANAYARA.P.O., THIRUVANANTHAPURAM, PIN – 695 029. 2 STATE OF KERALA REPRESENTED BY ITS PRINCIPAL SECRETARY, INDUSTRIES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN – 695 001. 3 THE KERALA ARTISANS DEVELOPMENT CORPORATION REPRESENTED BY ITS MANAGING DIRECTOR, PATTOM.P.O., KESAVADASAPURAM, THIRUVANANTHAPURAM, PIN – 695 004. 4 THE MANAGING DIRECTOR KERALA ARTISANS DEVELOPMENT CORPORATION, PATTOM.P.O., KESAVADASAPURAM, THIRUVANANTHAPURAM, PIN – 695 004 5 THE KERALA PUBLIC SERVICE COMMISSION REPRESENTED BY ITS SECRETARY, PATTOM, THIRUVANANTHAPURAM, PIN – 695 004 WA Nos.1407 & 1412 OF 2023 -: 2 :- BY ADVS. M.P. ASHOK KUMAR K.S.ARUNKUMAR(B/O) P.C.SASIDHARAN(B/O) BINDU SREEDHAR(K/000317/2002) ASIF N(K/001564/2018) P.C.GOPINATH(K/000287/84) SRI.V.TEKCHAND, SR.GP THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 25.09.2023, ALONG WITH WA.1412/2023, THE COURT ON 10.10.2023 DELIVERED THE FOLLOWING: WA Nos.1407 & 1412 OF 2023 -: 3 :- **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **TUESDAY, THE 10[TH] DAY OF OCTOBER 2023 / 18TH ASWINA, 1945** **WA NO.1412 OF 2023 JUDGMENT IN WP(C) 30515/2022 OF HIGH COURT OF KERALA DATED 26.7.2023** **----------------** ## **- APPELLANT/PETITIONER :** ARDHER S, AGED 34 YEARS S/O.T.T.K.SASI, REGIONAL OFFICER (TEMPORARY) KERALA ARTISANS DEVELOPMENT CORPORATION REGIONAL OFFICE, KOZHIKODE, RESIDING AT AZAD HOUSE, CHOKLI P.O. THALASSERY, KANNUR DISTRICT, PIN – 670 672 BY ADVS. M.SASINDRAN P.SHAHEED ## **- RESPONDENTS/RESPONDENTS :** 1 STATE OF KERALA, REPRESENTED BY ITS PRINCIPAL SECRETARY INDUSTRIES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN – 695 001 2 THE KERALA ARTISANS DEVELOPMENT CORPORATION REPRESENTED BY ITS MANAGING DIRECTOR, PATTOM P.O., KESAVADASAPURAM, THIRUVANANTHAPURAM, PIN – 695 004 3 THE MANAGING DIRECTOR KERALA ARTISANS DEVELOPMENT CORPORATION, PATTOM P.O., KESAVADASAPURAM, THIRUVANANTHAPURAM, PIN – 695 004 4 THE KERALA PUBLIC SERVICE COMMISSION REPRESENTED BY ITS SECRETARY, PATTOM, THIRUVANANTHAPURAM, PIN – 695 004 WA Nos.1407 & 1412 OF 2023 -: 4 :- BY ADVS. SRI.V.TEKCHAND, SR.GP SRI.K.S.ARUN KUMAR (B/O) SRI.P.C.SASIDHARAN (B/O THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 25.09.2023, ALONG WITH WA.1407/2023, THE COURT ON 10.10.2023 DELIVERED THE FOLLOWING: WA Nos.1407 & 1412 OF 2023 -: 5 :- **ANU SIVARAMAN, J. & C. JAYACHANDRAN, J. -----------------------------------------------------------------W.A. Nos.1407 & 1412 of 2023 --------------------------------------------------------Dated this the 10[th] day of October, 2023** ## **JUDGMENT** ## **Anu Sivaraman, J.** W.A. No.1412/2023 is filed by the petitioner in W.P.(C) No.30515/2022 against the common judgment in the said writ petition and W.P.(C) No.8712/2023, while, W.A. No.1407/2023 is filed by the appellant with leave against the said common judgment. 2. The petitioner in W.P.(C) No.30515/2022 was appointed as Technical Supervisor in the 2[nd] respondent Corporation through Kerala Public Service Commission (for short, 'the KPSC') on 10.1.2019. His probation was duly declared with effect from 10.1.2021. The promotion post of Technical Supervisor was Regional Officer. The method of appointment to the post of Regional Officer is by promotion from Technical Supervisor and by direct recruitment in the absence of suitable persons for appointment by promotion. It is contended by the learned counsel for the appellant that a vacancy of Regional Officer had arisen which was reported to the KPSC and the same was notified for direct recruitment. It is submitted that after the appointment of the WA Nos.1407 & 1412 OF 2023 -: 6 :- appellant as Technical Supervisor, a further vacancy of Regional Officer had also arisen. On finding that vacancies were available, the appellant had sought appointment by promotion to the post of Regional Officer. However, regular promotion was not granted and steps were taken to fill up the second vacancy which had arisen after the appellant had been appointed also through direct recruitment. It is submitted that the appellant was put in additional charge of Regional Officer as per order dated 30.4.2019 and was continuing as such. While so, he had approached this Court seeking appointment to the post of Regional Officer. However, the learned Single Judge, on a finding that the appellant had not produced the amended rules amending the qualification for appointment to the post of Regional Officer as MBA, had dismissed the writ petition imposing a cost of Rs.25,0000/-. 3. The learned counsel for the appellant submits that the amendment was only in respect to appointment by direct recruitment and there was no amendment to the qualification for appointment to the post of Regional Officer by promotion and that therefore, the dismissal of the writ petition on the said ground and the allowing of W.P.(C) No.8712/2023 with a direction to the 3[rd] respondent to issue appointment letter to the petitioner therein was erroneous. WA Nos.1407 & 1412 OF 2023 -: 7 :- 4. The learned counsel for the appellant places reliance on the judgments of the Apex Court in **Deepak Agarwal and another** v. **State of Uttar Pradesh and others** [2011 KHC 4308], **Rajasthan Public Service Commission** v. **Chanan Ram and another** [1998 KHC 910], **Jai Singh Dalal and others** v. **State of Haryana and another** [1993 KHC 1051], **State of Haryana** v. **Subash Chander Marwaha and others** [1974 KHC 544], **Shankarsan Dash** v. **Union of India** [1991 KHC 956] and **Jatinder Kumar and others** v. **State of Punjab and others** [1985 KHC 504]. It is contended that the conditions as on the date when the vacancy is sought to be filled up are to be taken note of. 5. The learned counsel appearing for the employer would contend that the vacancy to which the appellant claims appointment by promotion had arisen prior to the appellant being qualified for promotion. It is submitted that the appellant can claim appointment by promotion to the post of Regional Officer only after he completes his probation in the post of Technical Supervisor in view of Rule 28(a) of Part II KS & SSR which is applicable to the said service. It is submitted that the appellant had successfully completed his probation and his probation was declared only on 10.1.2021. He could, therefore, not have been considered for appointment to any vacancy which arose before the said date and that the vacancy WA Nos.1407 & 1412 OF 2023 -: 8 :- which arose on 17.6.2019 had, therefore, been rightly reported by the employer to the KPSC and appointments had been made in terms of the judgment of the learned Single Judge. It is further contended that since the vacancy arose even before the appellant became qualified, there is absolutely no error in reporting the vacancy for direct recruitment. 6. The learned counsel appearing for the petitioner in W.P. (C) No.8712/2023 would support the contentions of the employer. It is contended that the appellant became qualified for promotion only when he completed his probation and that the vacancies which arose before he was qualified cannot be filled up by promoting him after he becomes qualified. It is submitted that the Rules specifically provide so. Attention was invited to Rule 2(11) of Part I KSR and Rule 28(a) as well as Rule 28(b)(iA) of Part II KS & SSR in support of his contention. 7. The learned counsel also places reliance on the judgments of the Apex Court in **State of Bihar** v. **Madhu Kant Ranjan** [AIR 2022 SC 1310] and **Rakesh Bakshi and another** v. **State of Jammu and Kashmir and others** [2019 (3) SCC 511] as also an order in **Himachal Pradesh State Electricity Board Ltd. and another** v. **Dharminder Singh** [Civil Appeal No.8828/2022] in support of the contention that the availability of a qualified WA Nos.1407 & 1412 OF 2023 -: 9 :- person has to be considered taking note of the date of occurrence of the vacancy. 8. Having considered the contentions advanced, we notice that the amendment of the Rules referred to by the learned Single Judge are only with regard to the qualifications for appointment by direct recruitment and do not apply to promotions from the post of Technical Supervisor. However, we further notice that Ext.P3 recruitment rules specifically provide for appointment by direct recruitment in the absence of qualified hands available for promotion. The qualification for promotion has to be considered taking note of the Special Rules as well as the General Rules which, according to the parties, are indisputably applicable to the service in question. Rule 28 provides that no person shall be appointed by transfer or by promotion to a higher post unless he has successfully completed probation in the lower post. 9. In the above view of the matter, though we do not agree with the findings of the learned Single Judge with regard to the amendment of the qualifications, we are of the opinion that the conclusion reached by the learned Single Judge cannot be faulted for other reasons, as already stated above. The judgment does not require interference except for deleting the direction to the appellant to pay costs since the said direction does not seem to be WA Nos.1407 & 1412 OF 2023 -: 10 :- justified in view of our findings with regard to the non-amendment of the qualifications for appointment by promotion. In the result, we vacate the findings in the judgment relatable to the amendment in the Rules and imposing costs on the petitioner. However, the dismissal of the writ petition is not interfered with. **Sd/ANU SIVARAMAN** **JUDGE** **Sd/C. JAYACHANDRAN JUDGE** Jvt/5.10.2023