Kerala High Court
M.Mohammed Raphy vs The Chairman on 20 December, 2012
Author: P.R. Ramachandra Menon
Bench: P.R.Ramachandra Menon
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
THURSDAY, THE 20TH DAY OF DECEMBER 2012/29TH AGRAHAYANA 1934
WP(C).No. 31007 of 2009 (U)
---------------------------
PETITIONER(S):
-------------------------
M.MOHAMMED RAPHY,WELFARE OFFICER,
COCHIN PORT TRUST, COCHIN PORT TRUST, COCHIN-9.
BY ADVS.SRI.N.RADHAKRISHNAN
SRI.B.V.BALAKRISHNAN
RESPONDENT(S):
---------------------------
1. THE CHAIRMAN, COCHIN PORT TURST,
WILLINGTON ISLAND, KOCHI-9.
2. COCHIN PORT TRUST,
REPRESENTED BY ITS SECRETARY, WILLINGTON ISLAND,
KOCHI-9.
*ADDL.R3 IMPLEADED:
R3. S.MOHANDAS, WELFARE OFFICER,
COCHIN PORT TRUST, WELLINGTON ISLAND, KOCHI,
NOW RESIDING AT SONU NIVAS, H.NO.27/2648-B, Y.S.ROAD,
KADAVANTHRA, KOCHI - 682 009.
(*ADDL.R3 IS IMPLEADED AS PER ORDER DTD. 3/01/2011 IN
I.A.NO.10270/2010)
BY SRI.K.RAMAKUMAR,SENIOR ADVOCATE
BY ADVS.SRI.E.K.NANDAKUMAR
SRI.A.K.JAYASANKAR NAMBIAR
SRI.K.JOHN MATHAI
SRI.P.BENNY THOMAS
SRI.P.GOPINATH
SRI.V.J.ANAND
R3 BY ADV.SRI.MILLU DANDAPANI
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 01/11/2012 ALONG WITH WPC. NO.34395 OF 2009 AND
WPC.NO.6894 OF 2010, THE COURT ON 20/12/2012 DELIVERED
THE FOLLOWING:
Kss
WPC.NO.31007/2009 U
APPENDIX
PETITIONER'S EXHIBITS:
P1: COPY OF THE ORDER NO.A9/WO/MR/2009-S DTD. 28/10/2009.
P2: COPY OF THE SUBMISSION DTD. 13/10/2009.
P3: COPY OF THE LETTER DTD. 12/10/2009.
P4: COPY OF THE PROCEEDINGS OF THE CHAIRMAN, COCHIN PORT TRUST
NO.A10/3188/82-S DTD. 23/10/2003.
P5: COPY OF THE COMMUNICATION NO.SECY/5/2006/S DTD.7/11/2006 OF THE
SECRETARY,CPT.
P6: COPY OF THE JUDGMENT IN WA.NO.355/2007 DTD. 20/07/2009 PASSED
BY HON'BLE HIGH COURT OF KERALA.
P7: COPY OF THE PROCEEDINGS OF THE CHAIRMAN, COCHIN PORT TRUST
NO.A9/WO/HC/2009-S DTD. 07/12/009.
P8: ORDER IN WPC.NO.18808/2010.
P9: COPY OF JUDGMENT IN W.A.NO.9/2010.
RESPONDENT'S EXHIBITS:
R1(A): COPY OF THE JUDGMENT OF THE DIVISION BENCH ISSUED IN
W.A.NO.1730/07 CONNECTED CASES DTD. 10/09/2009.
R1(B): COPY OF THE NOTICE ISSUED TO SRI.MOHANDAS ON 28/10/2009
BY THE ADMINISTRATIVE OFFICER, COCHIN PORT TRUST.
/TRUE COPY/
P.S.TO JUDGE
Kss
P.R. RAMACHANDRA MENON, J.
..............................................................................
W.P. ) Nos.31007 & 34395 OF 2009
&
6894 OF 2010
.........................................................................
Dated this the 20th December, 2012
J U D G M E N T
Selection and appointment to the post of Welfare Inspector is the subject matter of challenge in the first two writ petitions, while promotion to the further higher post of Welfare Officer and appointment given to the concerned party respondent is under challenge in the latter one i.e., W.P.(C). No.6894/2010.
2. The petitioner in W.P.(C).No.31007/2009 joined the service of the Cochin Port Trust as L.D. Clerk on 3.5.1979 and has been subsequently promoted to different posts, such as Stenographer, U.D. Clerk, Stenographer Gr.I etc. He is having M.A. in Sociology and LLB (Labour Laws) and after considering the same as sufficient qualification for appointment as 'Welfare Inspector', he was promoted to the said post on 27.10.2003 and W.P. ) Nos.31007 & 34395 OF 2009 & 6894 OF 2010 2 was given further promotion as 'Welfare Officer' on 15.6.2004.
3. Pursuant to a dispute as to the actual qualification required for the post of Welfare Inspector and for Welfare Officer, an Expert Committee was constituted by the Port Trust, who submitted a detailed report to the effect that, LLB with Labour Laws or a Post Graduate Degree of M.A. in Sociology was not the requisite qualification prescribed by the Rules for the post of Welfare Inspector, as it was only a Degree or Diploma in 'Social Service'. This report was accepted by the Port Trust and an order was issued in this regard, which made the petitioner to approach this Court by filing W.P.(C).No.29445/2006 to set aside the impugned order and also to declare that the petitioner was fully qualified under the existing Recruitment Rules to be appointed as Welfare Inspector and to be promoted as Welfare Officer. After considering the merits, the said writ petition was dismissed by the learned Single Judge; which, though was subjected to challenge in W.A.No.1730/2007, no interference was made by the Division Bench and the writ appeal was also dismissed.
4. Based on the above verdict, the petitioner came to be W.P. ) Nos.31007 & 34395 OF 2009 & 6894 OF 2010 3 reverted to the post of 'Stenographer Gr.I', as per order dated 28.10.2009 protecting the benefits in the original cadre, as if the promotion to the post of Welfare Officer had not taken place with effect from 27.10.2003. The said order was under challenge in W.P.(C).No31007/2009, pointing out that, by the date of passing the impugned order, the petitioner had already acquired the requisite qualification of 'MSW' and hence he ought not to have been reverted to the post of 'Stenographer', being duly qualified on the relevant date of reversion, also contending that, the 3rd respondent in the writ petition, despite not having the requisite qualification as above, is being permitted to continue in the post of Welfare Officer, thus projecting the element of discrimination as well.
5. The petitioner in W.P.(C).No.34395/2009 was a permanent employee of the Cochin Dock Labour Board (DLB in short) right from 1.6.1980. Pursuant to the decision taken by the DLB and also by the Cochin Port Trust, the DLB got merged with the Cochin Port Trust and as per a settlement executed between the Management and the workmen, the merger was proposed to W.P. ) Nos.31007 & 34395 OF 2009 & 6894 OF 2010 4 be implemented in three phases and full merger of the DLB with the Cochin Port Trust was to be implemented as per order dated 28.10.1998, making the erstwhile DLB to be the Cochin Port Trust. The petitioner was redeployed to the 'Wharf Department' as a Shed Writer, with effect from 1.8.2002.
6. The above petitioner was having a B.A. Degree as well as LLB Degree from the Kerala University, with Post Graduate Diploma in Social Service (DSS) from the M.G. University. In response to the notification dated 1.7.2002, inviting applications to fill up the post of Welfare Inspector, though the petitioner preferred an application, it came to be rejected as per Ext.P1 communication dated 24.10.2002, holding that, he had become an employee under the Port Wharf Establishment only from 1.8.2002 and that the application can be considered only in respect of the future vacancies. This was challenged by the said petitioner by filing O.P.No.462/2003 before this Court claiming appointment as Welfare Inspector. During the pendency of said writ petition, a person by name S.Mohandas who got appointed as the Welfare Inspector came to be promoted as Welfare Officer W.P. ) Nos.31007 & 34395 OF 2009 & 6894 OF 2010 5 as per Ext.P2 order dated 15.1.2003, thus resulting in a vacancy of Welfare Inspector, which in turn was notified as per Ext.P3 dated 23.1.2003. The petitioner submitted Ext.P4 application in response to this post as well and this Court, as per Ext.P5 interim order in CMP No. 7786/2003 in O.P.No.462/2003, directed the respondents to consider the same as the objection mentioned in Ext.P1 was no longer significant or available.
7. After considering the claim of the petitioner along with other similar claims, the respondents appointed one Mr. Mohammed Raphy (petitioner in W.P.(C).No.31007/2009) as Welfare Inspector vide Ext.P6 order dated 27.10.2003. The said person was given further promotion as 'Welfare Officer' on 15.6.2004 vide Ext.P7, clearly mentioning that it will be subject to the result of the O.P.No.462/2003. The consequential vacancy pursuant to Ext.P5 was also notified on 5.7.2004 and the petitioner preferred his application again, for that vacancy as well. The petitioner got O.P.No.462/2003 amended, challenging the appointment of Mr. Mohammed Raphy and incorporating such other pleadings and reliefs; for the reason that, as per the W.P. ) Nos.31007 & 34395 OF 2009 & 6894 OF 2010 6 recruitment rules, Mr. Mohammed Rafi who has only a Post Graduate in Sociology with LLB in Labour Laws, was not having the requisite qualification of either Degree or Diploma in Social Service.
8. O.P.No.462/2003 preferred by the petitioner was heard and disposed of as per Ext.P8 judgment dated 14.3.2006, directing the Cochin Port Trust to consider the issue regarding qualification and appointment to the post of 'Welfare Inspector' and 'Welfare Officer' and to take a decision, making it clear that any promotion touching the dispute would be subject to the decision to be taken as above. Pursuant to the said verdict, the matter was considered at different levels and thereafter an outside expert Dr. M.V. Pylee, former Vice Chancellor of Cochin University of Science and Technology was requested to consider the matter and submit a report. Based on the opinion of the expert body, the respondent Port Trust took Ext.P9 decision accepting the same (by majority) holding that, neither M.A. Sociology nor LLB in Labour Laws was an equivalent or substitute qualification in place of either Degree or Diploma in Social Service W.P. ) Nos.31007 & 34395 OF 2009 & 6894 OF 2010 7 for promotion to the post of Welfare Inspector. Based on Exts. P8 and P9, the senior most hand by name Smt. Dheeratmaja (senior to the petitioner) was promoted to the post on an 'adhoc basis' and she joined duty on 7.11.2006. In fact Smt. Dheeratmaja was given promotion and posting in the vacancy of 'Welfare Inspector', resulted by virtue of Ext.P7 promotion given to the person by name Mohammed Raphy. In view of the absence of the requisite qualification, Mr. Mohammed Raphy had to be reverted from the post ant it was at this instance, that Mr. Mohammed Raphy approached this Court by filing W.P.(C).No. 29445/2006 seeking to declare that he was duly qualified to hold the post and for such other reliefs. The claim of Mr. Mohammed Raphy was rejected and the writ petition was dismissed as per Ext.P11 judgment, which was confirmed by the Division Bench as per Ext.P12 verdict dated 10.09.2009 in W.A.No.1730/2007.
9. Based on the specific finding by this Court in Exts. P11 and P12 judgments, Mr. Mohammed Raphy was reverted from the post of Welfare Officer, which he was holding by that time to the post of 'Stenographer Gr.I', as per Ext.P13 order dated W.P. ) Nos.31007 & 34395 OF 2009 & 6894 OF 2010 8 28.10.2009. Against the post of Welfare Officer vacated by Mr. Mohammed Raphy, Smt. K.P. Dheeratmaja who was appointed as Welfare Inspector as per Ext.P10, was given promotion vide Ext.P14 order dated 13.11.2009, leaving open the post of 'Welfare Inspector' once again. The petitioner filed Ext.P15 representation seeking to appoint him against the said vacancy, being the next eligible hand, but instead of appointing him, the 1st respondent, as per Ext.P16 Circular dated 18.11.2009, renotified the post for fresh selection; which in turn is under challenge in W.P.(C).No.34395/2009.
10. The respondents have filed a counter affidavit pointing out that Ext.P5 interim order passed by this Court has not given any better/priority rights over the senior person by name Smt. Dheeratmaja, who was rightly promoted to the available vacancy in 2006. It is stated that, only on promotion of Smt. Dheeratmaja to the next higher post of Welfare Officer, did arise a vacancy of 'Welfare Inspector' on 13.11.2009; which in turn has been notified to be filled up in accordance with the relevant Rules as on date. It is also pointed out that, there was no W.P. ) Nos.31007 & 34395 OF 2009 & 6894 OF 2010 9 instance of discrimination in so far as the Port Trust had taken action also against the other unqualified hand by name Mr. Mohandas, by issuing a show-cause notice to him. The petitioner has filed a reply affidavit producing a copy of the order dated 4.6.2010, whereby the Cochin Port Trust has reverted the person by name Mohandas as well, for want of necessary qualification to have been promoted as 'Welfare Inspector', thus contending that there is a clear vacancy available in the post of Welfare Inspector and that the petitioner has to be appointed in the said post.
11. The respondents 1 and 2 have filed their counter affidavit in W.P.(C).No. 31007/2009 as well, producing a copy of the judgment rendered by the Division Bench in W.A.NO.1730/2007 as Ext.R1(a) and also a copy of the show cause notice issued to the additional 3rd respondent by name Mr. Mohandas as Ext.R1(b). It is contended that, by virtue of the declaratory judgment passed by this Court in the concerned Writ Petition and the Writ Appeal, holding that the petitioner in the said case was not having the requisite qualification to be appointed as 'Welfare Inspector' in the year 2003, the issue has W.P. ) Nos.31007 & 34395 OF 2009 & 6894 OF 2010 10 become final and it is no more liable to be reopened. It is incidentally brought to the notice of this Court that, the person by name Mohandas, the additional 3rd respondent in W.P.(C). No.31007/2009, had approached this Court challenging his reversion from the post of Welfare Officer (for not having the requisite qualification to be promoted to the Feeder Category of 'Welfare Inspector') by filing W.P.(C).No. 18808/2010. After hearing both the sides, a learned Judge of this Court found that the appointment of Mr. Mohandas as 'Welfare Inspector' effected on 3.9.2002 was not challenged by anybody and that the reversion, referring to want of necessary qualification was ordered by the Port Trust nearly a decade after the appointment and further promotion as Welfare Officer. It was also observed by the learned Judge that, the point was not brought to the notice of the Division Bench of this Court in W.A.No.355/2007, whereby the claim for promotion as Industrial Relations Officer was considered and negated. Considering the particular facts and sequence of events, the learned Judge observed that the Court was not inclined to annul the decision of the Cochin Port Trust for W.P. ) Nos.31007 & 34395 OF 2009 & 6894 OF 2010 11 creation of the new post of 'Senior Welfare Officer' as part of employment policy regarding restructuring, thus declining the relief sought for under that head. However, following the law laid down by this Court in Rajalekshmi v. State of Kerala (1992 (1) KLT 458), the steps taken to revert Mr. Mohandas after several years was held as not correct or sustainable and accordingly, the reversion was set aside declaring that he was entitled to continue as 'Welfare Officer'. If the respondent Port Trust is aggrieved of the said verdict, it is for them, to have it agitated by way of appropriate proceedings, which however does not form the subject matter involved in these writ petitions.
12. The sum and substance of the above discussion is that, whether the contention of the petitioner (Mr. Mohammed Raphy in W.P.(C).No. 31007/2009) that he has obtained the requisite qualification of 'MSW' by the time the reversion was to be implemented, is liable to be entertained, to save him from reversion. If not, how the resultant vacancy in the post of 'Welfare Inspector' has to be filled up and whether the petitioner in W.P.(C).No. 34395/2009 is entitled to have promotion to the W.P. ) Nos.31007 & 34395 OF 2009 & 6894 OF 2010 12 said vacancy; are the points to be considered.
13. Admittedly, as per the relevant recruitment Rules, LLB with Labour Laws is one of the alternate qualifications for the post of 'Welfare Officer', which the petitioner in W.P.(C).No. 31007/2009 is having. The distribution of posts in the respondent Port Trust is to such effect that, there is only 'one' post of 'Welfare Inspector' while 'two' posts of 'Welfare Officers' are available, for which the Feeder Category is 'Welfare Inspector'. Admittedly, the petitioner in W.P.(C).No.31007/2009 did not have either Degree or Diploma in 'Social Service' and he obtained the requisite qualification of 'MSW' only in the year 2009. There is a clear declaration and finding by the Division Bench in W.A.No.1730/2007 that the petitioner Mohammed Raphy was not having the requisite qualification to be posted as 'Welfare Inspector' when the vacancy arose in the year 2003. Since the elevation to the post of 'Welfare Officer' is only through the feeder category post of Welfare Inspector, the subsequent promotion as 'Welfare Officer', based on an illegal promotion given to the Feeder Category of Welfare Inspector cannot confer W.P. ) Nos.31007 & 34395 OF 2009 & 6894 OF 2010 13 any vested right to be saved from reversion. In other words, the fact that Mr. Mohammed Raphy had acquired the requisite qualification of 'MSW' by the time the reversion came to be implemented, does not come to his rescue. This Court finds that, there is absolutely no merit or bonafides in W.P.(C).No. 31007/2009 as the issue is squarely covered by the judgment rendered by the Division Bench of this Court in W.A.No.1730/2007.
14. Coming to W.P.(C).No. 34395/2009, the main challenge is against the 're-notification' of the vacancy to the post of 'Welfare Inspector' vide Ext.P16 and the prayer is for filling up the said post by promoting the petitioner who was having all the requisite qualifications when it was notified in the year 2003. There is no dispute for the respondent Port Trust that the petitioner Muhammed Nazeer is not qualified to hold the post of 'Welfare Inspector' and the only objection when his claim was turned down earlier vide Ext.P2 was that, the vacancy was notified on 1.7.2002; whereas the petitioner came to the service of the Port Trust (Pursuant to the merger of DLB with CPT) only W.P. ) Nos.31007 & 34395 OF 2009 & 6894 OF 2010 14 with effect from 1.8.2002 and hence that, he could be considered only against the future vacancies. There occurred another vacancy in the year 2003, notified as per Ext.P3 dated 23.1.2003, which was applied for and was directed to be considered vide Ext.P5 interim order passed by this Court. It was in respect of the said vacancy, that the petitioner in the other writ petition, i.e., Mr. Mohammed Raphy came to be appointed vide Ext.P6. Later, Mr. Mohammed Raphy was promoted to the next higher post of 'Welfare Officer' vide Ext.P7 dated 15.06.2004; giving rise to the vacancy of 'Welfare Inspector' once again, which was notified on 5.07.2004 and the petitioner applied for the same this time as well. Pursuant to the reversion of Mr. Mohammed Raphy from the post of 'Welfare Officer', the Senior most hand i.e., Smt. Dheeranmaja came to be promoted to the post of 'Welfare Inspector' on adhoc basis as per Ext.P10 (in W.P.(C) No.31007/2009) and later, she was promoted to the next higher post of 'Welfare Officer', which was vacated by Mr. Mohammed Raphy.
15. Going by the sequence of events, the single post of W.P. ) Nos.31007 & 34395 OF 2009 & 6894 OF 2010 15 'Welfare Inspector' became vacant on different occasions after the petitioner in W.P.(C).No.34395/2009 (Mr. Muhammed Nazeer) became an employee of the CPT. By virtue of the declaration made by the Division Bench of this Court in W.A.No.1730/2007, Mr. Raphy was not qualified to be promoted to the post of 'Welfare Inspector' which was notified for the first time vide Ext.P3. In fact, when Ext.P5 interim order was passed by this Court to consider the claim of Mr. Muhammed Nazeer (petitioner in W.P.(C).No.34395/2009) in respect of the said vacancy along with other claims, since Mr. Raphy was not actually qualified for the post, the respondent Port Trust could have promoted only Smt. Dheeratmaja as Welfare Inspector, being senior most hand; instead of the wrong promotion given to Mr.Raphy as per Ext.P6. Had it been done, as a natural sequence of events, it would have been none other than Smt. Dheeratmaja, who would have been promoted to the next higher post of 'Welfare Officer', when Ext.P7 order was issued on 15.06.2004 promoting Mr. Raphy to the said post (who was wrongly inducted to the post of Welfare Inspector). Had it been W.P. ) Nos.31007 & 34395 OF 2009 & 6894 OF 2010 16 correctly done as above, by promoting Smt. Dheeratmaja as 'Welfare Officer', the resultant vacancy of 'Welfare Inspector' notified on 5.7.2004 could have been filled up only by the next person, i.e., petitioner Muhammed Nazeer, who had applied for the same as specifically pleaded in paragraph '5' and Ground B of the writ petition, which has not been rebutted anywhere in the counter affidavit filed by the CPT.
16. True, Smt. Dheeratmaja was given adhoc promotion as 'Welfare Inspector' only in the year 2006 vide Ext.P10 and later she was promoted to the post of 'Welfare Officer' as per Ext.P14 order dated 13.11.2009, thus resulting in a vacancy of 'Welfare Inspector'. But the fact remains that, there occurred a vacancy of 'Welfare Inspector' by promoting Mr. Raphy vide Ext.P7, which was notified as well on 5.7.2004. Had the promotion been correctly done by the CPT, promoting only the qualified persons in accordance with the Rules, this dispute would not have been there at all. Merely for the reason that, Smt. Dheeratmaja was not conscious of her rights and had not approached this Court seeking for appropriate reliefs, it cannot bar the way of the W.P. ) Nos.31007 & 34395 OF 2009 & 6894 OF 2010 17 petitioner Muhammed Nazeer from pursuing his rights by way of W.P.(C).No.34395/2009, more so, when it was he, who approached this Court for the first time, challenging the absence of qualification for the persons proposed to be promoted to the post of 'Welfare Inspector' by filing of O.P.No. 462/03, leading to the turn of events.
17. It is brought to the notice of this Court that, the Recruitment Rules have undergone some change in the meanwhile and the vacancy of 'Welfare Inspector' resulted pursuant to the promotion of Smt. Dheeratmaja as per Ext.P14 dated 13.11.2009 has been notified as per Ext.P16 Circular dated 18.11.2009 and it is contended that the petitioner in W.P.(C). No.34395/2009 (Mr. Muhammed Nazeer) has to contest along with other eligible candidates. This Court finds it difficult to accept the said proposition, obviously for the reason that, the course and events as mentioned above would have and should have resulted in promotion and appointment of the petitioner Muhammed Nazeer, had the qualified hand alone was considered for appointment, in tune with relevant Rules; promoting Smt. W.P. ) Nos.31007 & 34395 OF 2009 & 6894 OF 2010 18 Dheeratmaja against the 'first' vacancy which arose in the year 2003 (against Ext.P3 notification) and the next vacancy which arose in the year 2007, pursuant to the promotion to be given to Smt. Dheeratmaja (instead of the promotion given to Mr. Rafi vide Ext.P7) notified on 5.7.2004, ought have been given to none other than Mr. Muhammed Nazeer, the petitioner in W.P.(C).No. 34395/2009, who alone was the other qualified hand as on that date. In the said circumstances, this Court finds that the petitioner in W.P.(C).No. 34395/2009 is entitled to succeed. W.P. ) No.6894 OF 2010
18. Ext.P14 order dated 13.11.2009 in W.P.(C) 34395 of 2009 which promotes the person by name Smt. K.P. Dheeratmaja as 'Welfare Officer' in the Cochin Port Trust is under challenge in W.P.(C) 6894 of 2010 (wherein it has been marked as Ext.P3) preferred by the petitioner herein, who is stated as working as a 'Sports Officer'. The case projected by the petitioner is that the post held by him happens to be one of the feeder categories for promotion to the post of 'Welfare Officer', as per the recently notified Recruitment Rules (Ext.P2) W.P. ) Nos.31007 & 34395 OF 2009 & 6894 OF 2010 19 and that the petitioner satisfies all the requisite qualifications mentioned in Ext.P2. According to the petitioner, the third respondent- Dheeratmaja has been wrongly promoted as Welfare Officer, in violation of the Recruitment Rules, in so far as no written test or viva voce, which are mandatory as per Ext.P2 Recruitment Rules, have been conducted and that the third respondent does not have the requisite experience as well.
19. The respondent Cochin Port Trust has filed a counter affidavit pointing out that the idea and understanding of the petitioner is quite wrong and misconceived; that Ext.P2 produced by the petitioner is only a 'proposed amendment' to the existing rules-[Ext.R1(a)] and that the same has not been brought into force. It has been asserted that, as per Ext.R1(a) existing Rules, the petitioner does not have the requisite qualification. The educational qualifications required are a University Degree along with a Degree or Diploma in Social Service from any Institution recognised by the State Government or LL.B. with Labour Law as an elective subject from a University recognised by the Government of Kerala . It is also stated that the petitioner W.P. ) Nos.31007 & 34395 OF 2009 & 6894 OF 2010 20 is not qualified and is not working in any of the feeder categories to be considered for promotion to the post of 'Welfare Officer'.
20. The third respondent, Smt. Dheeratmaja has filed a detailed counter affidavit highlighting her credentials/qualifications to have appointed to the post of Welfare Officer, simultaneously asserting that the petitioner does not have any of the requisite qualifications for the post in question and also that the post of 'Sports Officer' is not a feeder category for promotion to the post of 'Welfare Officer'.
21. The petitioner himself admits in paragraph '3' of the writ petition, that he is only a Graduate in Economics, a Post Graduate in English Literature and a holder of 'Diploma in Labour Laws and Administrative Laws'. It is also conceded in paragraph '4' that the post of 'Sports Officer' (Upgraded Post of Asst. Welfare Officer) was not specifically included among the feeder categories till 2009. The petitioner contends that Ext.P2 recruitment rules govern the appointment to the post of 'Welfare Officer' from 08.05.2009. It is in the said background, that the petitioner pleads that the promotion of the third respondent as W.P. ) Nos.31007 & 34395 OF 2009 & 6894 OF 2010 21 Welfare Officer vide Ext.P3 order dated 13.11.2009 is not in order, being contrary to Ext.P2 Rules.
22. But, there is no case for the petitioner that he was qualified to be promoted to the post of 'Welfare Officer' on the basis of Ext.R1(a) Rules, more so when the petitioner himself concedes in paragraph '4' that the post held by him was not included as a feeder category post till 2009.
23. The respondent Cochin Port Trust has asserted in their counter affidavit dated 02.11.2011 that, Ext.P2 was only a 'proposed amendment' to the existing rules -Ext.R1(a) and that the same had not been brought into force. As such, the relevant rules applicable for promotion to the post of 'Welfare Officer' at the time of granting promotion to the third respondent on 13.11.2009 was nothing other than Ext.R1(a) Rules, as per which, the petitioner admittedly stands not qualified and not comes within the feeder category. The specific averment of the respondent Cochin Port Trust in this regard as to the non- applicability and non-implementation of Ext.P2 rules, as on the date of Ext.P3, has not been rebutted by the petitioner by filing W.P. ) Nos.31007 & 34395 OF 2009 & 6894 OF 2010 22 any reply affidavit. In the said circumstance, the challenge raised against Ext.P3 has necessarily to fail. It is ordered accordingly.
24. It is brought to the notice of this Court (from paragraph '8' of the counter affidavit filed by the third respondent) that during the pendency of the writ petition, the petitioner in W.P.(C) 6894 of 2010 has been promoted as Welfare Officer as per Ext.R3(b) order dated 30.08.2011, making it clear that, it will be subject to the result of the writ petition pending before the High Court of Kerala. Under what circumstances the petitioner came to be promoted as 'Welfare Officer' remains as a matter of mystery. According to the third respondent, it is based on Ext.P2 Rules, which came to be approved by Government of India only on 28.08.2010 (much after Ext.P3 promotion dated 13.11.2009 given to the third respondent ). But then, the counter affidavit filed on behalf of the first and second respondents is dated 02.02.2011, wherein the Secretary of the Cochin Port Trust asserts that Ext.P2 rules have not been brought into force (even as on the date of the W.P. ) Nos.31007 & 34395 OF 2009 & 6894 OF 2010 23 affidavit).
25. The qualifications for promotion to the post of 'Welfare Officer', as given in Ext.P2 amended rules, are as given below:
.... "(i) A Degree from a recognised University.
(ii) Degree/Diploma in Social Science from a recognised University/Institution.
(iii) Knowledge of Local Language.
Desirable: Two years experience as a Labour Welfare Officer/Industrial Relations Officer in an Industrial/Commercial/Govt. Undertaking."
26. The factual position in this regard is conceded by the petitioner himself in paragraph '9' of the writ petition, simultaneously adding that, he is only a Graduate in Economics, and a Post Graduate in English Literature, with Diploma in Labour Laws and Administrative Laws. According to the petitioner, since he is a Graduate in Economics, which is stated as a subject coming within the category of Social Science, he fulfills the essential qualification to hold the post of 'Welfare Officer' under W.P. ) Nos.31007 & 34395 OF 2009 & 6894 OF 2010 24 Ext.P2. Ext.P2 does never say that Diploma in Labour Laws and Administrative Laws is an alternate qualification in place of Degree/Diploma in Social Science. The absence of qualification of the petitioner is also asserted in the counter affidavit filed on behalf of the respondents 1 and 2. If this be the position, how an unqualified person like the petitioner happened to be promoted by the respondents 1 and 2 by way of Ext.R3(b) dated 30.08.2011 is a matter which requires to be investigated. It only makes this Court to doubt whether promotion of unqualified hands is the order of the day, as pursued earlier in respect of the post of 'Welfare Inspector' as well, leading to the subsequent reversions. This Court directs the second respondent to conduct an enquiry in this behalf and take remedial steps, if necessary, forthwith.
27. In the above facts and circumstances, W.P.(C) Nos.31007 of 2009 and 6894 of 2010 are dismissed as devoid of any merit. In W.P.(C) 34395 of 2009, this Court holds that the petitioner is entitled to be promoted to the post of Welfare Inspector in view of the settled rights and liberties, W.P. ) Nos.31007 & 34395 OF 2009 & 6894 OF 2010 25 though the post was made available only belatedly, pursuant to the promotion to Smt.Dheeratmaja vide Ext. P14 dated 13.11.2009. As such, Ext.P16 Circular dated 18.11.2009 notifying the post for fresh selection is held as not good and is set aside. The respondents are directed to pass necessary orders granting promotion to the above petitioner to the post of 'Welfare Inspector' resulted pursuant to Ext.P14, at the earliest, at any rate, within one month from the date of receipt of a copy of the judgment. The writ petition is allowed. No cost.
P.R. RAMACHANDRA MENON, JUDGE.
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