Point of law: When seniority of persons in post of Laboratory Assistant cannot be altered solely because some of them had cleared “Attenders Test” later, obviously, their chances of promotions can also be not affected for this reason alone.

JUDGMENT :

The petitioners in these two cases – which are hypostatised on similar factual assertions and seek similar reliefs – are persons who were directly recruited as Lab Assistants in the services of “Bishop Moore College, Mavelikkara” and “Sree Sankara Vidyapeetom College, Perumbavoor”.

2. As per “The Conditions of Service of Teachers and Members of Non Teaching Staff – First Statutes, 1979 of the University of Kerala, (hereinafter referred to as “First Statutes” for short), the qualifications requisite for a person to be appointed as a Laboratory Assistant is either a pass in Standard VII or equivalent, or five years of regular service in private colleges; along with pass in “Attenders Test”, conducted by the Public Service Commission.

3. It is undisputed that, for every candidate who is appointed as a Laboratory Assistant, three chances are granted statutorily to pass the “Attenders Test”, and that if this is done, then they would retain the seniority in the said post, notwithstanding that somebody else had cleared the same earlier.

4. While so, positions of Lower Division Clerk (LDC) either arose or were created in the respective Colleges, and the petitioners were all promoted to the same by the Managements, nevertheless that they had not yet cleared the “Attenders Test” mentioned above.

5. This is the genesis of the controversy in this case because, the statutory Educational Authorities, including the Government, took the stand that only those who had cleared the “Attenders Test” while being a Lab Assistant, could be considered for promotion as LDC and to be granted it.

6. Resultantly, Ext.P20 order in WP(C) No.2717/2021 was issued, wherein, promotions of the petitioners therein were denied approval; while Ext.P11 was issued as regards the petitioners in WP(C) No.12371/2020, setting aside their order of approval of promotions to such post, earlier granted. These orders are now impugned.

7. I have heard Sri. Babu Varghese – learned Senior Counsel, instructed by Sri. Abhay Ferdinand, appearing for the petitioners in WP(C) No.2717/2021; Sri. Sudhin Kumar – learned counsel for the petitioner in WP(C) No.12371/2020, Sri. K.R. Ganesh appearing for the respondents in WP(C) No.2717/2021 and Sri. V. Venugopal – learned Government Pleader appearing or the official respondents in all these cases.

8. As evident from the afore narrative of facts, the crucial question for consideration is whether the promotion of the petitioners in these two cases as LDC by the respective managements, even before they had cleared the “Attenders Test” in the post of Laboratory Assistant, is improper or otherwise.

9. For an evaluation of the afore issue, one must certainly have a look at Chapter III of the “First Statutes”, particularly Clauses 41(12) and 41(5) thereof; which are extracted below for such purpose :