STATE OF KERALA Vs. KRISHNAN

JUDGEMENT

(1.) THE appeal is by the State and by the Director of technical Education, Kerala, against the judgment of a learned judge allowing he writ petition filed by the 1st respondent herein, and quashing Ex. P6 order and directing the Departmental Promotion Committee to reconsider the claims of the petitioner and the 3rd respondent and decide as to who had the preferential right to promotion.

(2.) THE short facts giving rise to this appeal are hese: by a G. O. dated 11-9-1968, the Government created a post of Administrative assistant in the Directorate of Technical Education The counter-affidavit filed on behalf of the 1st respondent in Para. 3, has referred to the said G. O. and stated that a copy of the same is produced and marked as Ext. A-1. The document, however, has neither been actually produced nor marked. One balakrishnan Nair who was Accounts Officer, was promoted as Administrative assistant. That mad. it necessary that the post of Accounts Officer, should be filled up. This was done by appointing the 2nd respondent to the said post. Against the said appointment O. P. No. 240 of 1969 was filed by the writ petitioner (1st respondent herein) which resulted in Ext. P5 judgment. The learned judge of this Court observed as follows: "2. Counsel on behalf of the petitioner has contended that the appointment of the 4th respondent was by an incompetent authority. Counsel on behalf of the State has pointed out from the files that the actual order promoting the 4th respondent provisionally as Accounts Officer was passed by the Director of Technical Education. Even so it is clear from Ext p1 that he was incompetent to do so as the Director of Technical Education was competent only to appoint the lowest grade gazetted officers and the post of accounts Officer was not one such. This being so, it is further urged by counsel on behalf of the petitioner that that incompetent acton the part of the director of Technical Education could not have been ratified on 30-10-1968 a date on which the petitioner had also become fully qualified. It is not disputed before me that other things being equal a senior may be entitled to be preferred to a junior. If this appointment was therefore to be made on 31-10-1968, perhaps the petitioner might have had to be preferred. It is unnecessary, I think to consider this matter because the appointment under Ext. P2 is only of that provisional appointment. The Departmental Promotion committee' has not yet considered the matter. All that is necessary therefore, is to direct that the departmental promotion Committee should consider the rival claims of the petitioner and the 4th respondent in relation to the vacancy that was filled up provisionally by Ext P2 order and fresh appointment orders should be made in accordance with the recommendation of the Departmental promotion Committee. This should be one early. "

(3.) AFTER Ext. P5 judgment in pursuance of the reconsideration directed by it, the Government passed Ex. P6 order rejecting the 1st respondent's request for re consideration. It was thereupon that the 1st respondent filed the writ petition m this Court which was allowed by the learned Judge. The learned judge noticed that the Departmental Promotion committee had proceeded on the basis that the vacancy arose on 12-9-1968 and on that basis excluded the writ petitioner as be was not qualified on that date The learned judge was of the view that this was not in conformity with the directions in Ext. P5 judgment, and that the said judgment had proceeded on the basis that the promotion was made only on 30-10-1968 on which date the vacancy should be deemed to have arisen. The learned judge quoted practically the same passage from Ext P5 judgment which we have extracted earlier and concluded: "from this observation it is clear that'his Court understood the date on which the vacancy arose to be 30-10-1968". We are unable to agree with this part of the reasoning and conclusion of the learned Judge. The learned judge apparently missed the import of the words "if" and "perhaps" in the relevant sentence in Ext. P5 judgment, while discussing whether the appointment could be regarded as having been made before 30-10-1968. Ext. P5 judgment did not express any concluded view on the question and left the matter for determination by the Departmental Promotion Committee.