SUDHEENDRAN M Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioners, who are working as Process Operators in the Travancore Titanium Products Ltd. - the 3rd respondent, are aggrieved by the refusal on the part of the 3rd respondent to appoint them as Supervisors and in retaining respondents 4 to 8, who do not have the prescribed qualification, as Acting Supervisors (Production) against the vacancies of Supervisors. The petitioners claim that they are fully qualified for appointment to the post by transfer.

(2.) The petitioners commenced their service in the Travancore Titanium Products Ltd-the 3rd respondent in the year 2009 as Process Operators (trainees) . They were absorbed as Process Operators with effect from 26.05.201 All of them are Graduates/Post Graduates in Chemistry. Their conditions of service are governed by Ext.P2 Rules, namely Travancore Titanium Products Ltd. Subordinate Service Rules (hereinafter referred to as the 'Service Rules') . As per rule 7 of chapter I of the Service Rules the qualification to be possessed by a person for appointment to any post in the subordinate service are prescribed in schedule III to the rules. As per rule 8 the methods of appointment to a post in the subordinate service are by (a) promotions from the feeder category or (b) when eligible candidates are not available for appointment by promotion from the feeder category as laid down in Chapter VI of the Rules, by transfer from other Departments in accordance with the provisions laid down in Chapter IV or (c) If no eligible candidate is available for appointment by transfer also, by direct recruitment. It further provides that while resorting to direct recruitment, the rules and procedures, if any laid down by the Government, and the rules and directives of Government relating to direct recruitment, shall also be followed. The method of appointment, qualification etc to various posts under the 3rd respondent are prescribed in the schedule to the rules. In schedule III of the Service Rules category 1 is Supervisor (Production) . The qualification prescribed for promotion from the post of Chargehand Operator, which is serial no.2, is B.Sc Chemistry/Diploma in Chemical Technology with three years experience as Chargehand Operator. Under the note it is provided that Chargehand Operators, Process Operators, Work Asst./Canteen Mazdoor on the roll as on 6.1990 will be governed by pre-revised rules. For Appointment to the post of Chargehand Operator by promotion from Process Operator, the qualification prescribed are (1) SSLC or equivalent with 5 years experience as Process Operator or (2) Pre-Degree with Chemistry as one of the subjects/NTC in the trade of Attendant Operator under the Apprenticeship training scheme and three years' experience as Process Operator or (3) B.Sc Chemistry/Diploma in Chemical Technology with 2 years' experience as Process Operator.

(3.) The petitioners' case is that the qualification prescribed in the service rules are insufficient, being contrary to the provisions contained in Factories Act and Kerala Factories Rules. It is asserted that the respondent Company is one operating on hazardous substances. Sub clause (b) of Section 41C of the Factories Act, 1948 provides that every occupier of a factory involving in hazardous processes shall appoint persons who possess qualification. Rule 81AN of Kerala Factories Rules prescribes the qualification to be possessed by persons who are required to supervise the handling of hazardous substances. 5 years experience is required for Degree holders in Chemistry and Diploma holders in Chemical Engineering. For Postgraduates in Chemistry and Graduates in Chemical Engineering or Technology, experience required is of 2 years. The petitioners submit that respondents 4 to 8 are not having Degree in Chemistry and they did not have the prescribed experience also. However they were promoted as Acting Supervisors. Petitioners claim that the 3rd respondent company ought to have resorted to appointment by transfer, when persons like petitioners who are fully qualified in accordance with Rule 81AN of the Factories rules as well as Ext.P2 rules, are available.