Kerala High Court
M.M.Thomas vs Sasi.P.K on 10 August, 2011
Author: P.S.Gopinathan
Bench: C.N.Ramachandran Nair, P.S.Gopinathan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP (CAT).No. 2518 of 2011(Z)
1. M.M.THOMAS,SOCIAL SECURITY ASSISTANT,
... Petitioner
2. SUMA UNNIKRISHNAN,SOCIAL SECURITY
3. GOPAKUMAR.M,SOCIAL SECURITY ASSISTANT,
4. SUBASH CHANDRA DAS,SOCIAL SECURITY
Vs
1. SASI.P.K,AGED 41 YEARS,S/O.KOMAN NAIR,
... Respondent
2. JAGATH KUMAR.G,AGED 44 YEARS,
3. UNION OF INDIA,REPRESENTED BY THE
4. THE CENTRAL PROVIDENT FUND COMMISSIONER,
5. THE REGIONAL PROVIDENT FUND COMMISSIONER
6. THE REGIONAL PROVIDENT FUND COMMISSIONER
7. JITHENDRAN,SENIOR SOCIAL SECURITY
For Petitioner :SRI.KRB.KAIMAL (SR.)
For Respondent :SRI.P.PARAMESWARAN NAIR,ASG OF INDIA
The Hon'ble MR. Justice C.N.RAMACHANDRAN NAIR
The Hon'ble MR. Justice P.S.GOPINATHAN
Dated :10/08/2011
O R D E R
C.N.RAMACHANDRAN NAIR & P.S.GOPINATHAN, JJ.
------------------------------------------ O.P.(C.A.T)No.2518 & 2525 OF 2011
------------------------------------------- Dated this the 10th day of August, 2011 C O M M O N J U D G M E N T ~~~~~~~~~~~ P.S.Gopinathan, J.
The common petitioners assail the common order dated 19.7.2011 of the Central Administrative Tribunal, Ernakulam Bench in O.A.No.723/2010 and O.A.No.970/2010. The petitioners are respondents 5 to 8 in both applications before the Tribunal. O.A.No.723/2010 was filed by respondents 1 and 2 in O.P.No.2518/2011. O.A.No.970/2010 was filed by the 1st respondent in the other petition. The 1st respondent in O.P.No.2518/2011 entered the service of the 5th respondent as Lower Division Clerk (LDC) on 5.9.1996. He was promoted as Upper Division Clerk (UDC) on 10.11.1997 and was regularised with effect from 28.5.2002. UDC was redesignated as Social Security Assistant (SSA) with effect from 25.2.2004. Thereafter, with effect from 19.10.2004 he was promoted as Senior Social Security Assistant (SSSA). The 2nd respondent entered the service as LDC on 3.2.1992. He was promoted as UDC on O.P.(C.A.T) No.2518 & 2525/2011 2 10.11.1997 and regularised with effect from 28.5.2002. He was also redesignated as SSA on 25.2.2004 and promoted as SSSA on 19.10.2007. The 1st respondent in O.P.No.2525/2011 entered the service as LDC in 1993. He was promoted as UDC in 1997 and with effect from 19.10.2004 he is working as SSSA. The petitioners 1, 2 and 4 entered the service of the Employees Provident Fund Organisation (EPFO) in Tamil Nadu Region and while they were working so, petitioners 1 and 4 were transferred to Kerala Region as per Annexure-R5(a) order dated 19.6.2008. The 2nd petitioner was transferred as per Annexure-R5(b) order dated 20.8.2008. The 3rd petitioner was working as Data Entry Operator in Gulbarga Region in Karnataka. He was transferred and posted as SSA on 1.6.2005 in Kerala Region. Thereby, as such the petitioners as well as respondents 1 and 2 in O.P. (C.A.T) No.2518/2011 and the 1st respondent in the other petition are at present working as SSA/SSSA. SSA and SSSA are feeder categories to the post of the Enforcement Officer/Accounts Officer (EO/AO). 25% of the vacancies in the category of EO/AO are reserved for departmental candidates to be selected by departmental competitive examination. 50% is set O.P.(C.A.T) No.2518 & 2525/2011 3 apart for direct recruitment. Remaining 25% is set apart for promotion on seniority basis. The official respondents issued Annexure-A2 circular dated 11.9.2009 inviting application for 12 posts of EO/AO, of which 7 are open and 5 are reserved. The petitioners as well as private party respondents appeared for the examination. After evaluation Annexure-A3 rank list was published. Annexure-A4 is the list of successful candidates. Petitioners rank 1, 2, 4 and 5 in Annexure-A3. Respondents 1 and 2 in O.P.2518/2011 rank 8 and 13. The 1st respondent in other petition ranks No.9. Since there were only 7 open vacancies, the private party respondents in the petitions being rank No.8, 9 and 13, in all probability, would not get appointment. Realising this position, they moved the above Original Applications before the Tribunal, alleging that, as per rules, to entitle SSA to get promotion as EO/AO on the basis of the departmental competitive examination, minimum five years regular service in the prescribed scale in the respective regions is required and that the petitioners, who were transferred to the Kerala region on the dates mentioned earlier, have no required qualifying regular service in the Kerala region and therefore O.P.(C.A.T) No.2518 & 2525/2011 4 they are not entitled to be appointed as EO/AO in pursuance to Annexure-A3 and that the inclusion of their names in the rank list is illegal, arbitrary and not sustainable, with a prayer to quash and set aside Annexures-A3 and A4 to the extent it include the petitioners and to prepare fresh rank list excluding them.
2. The petitioners took a contention that in their transfer order there is specific mention that their service in the respective regions from which they were transferred would be counted for applying for departmental examination and therefore, the inclusion of their names in the rank list is unassailable. Overruling their objection, petitions were allowed as against the petitioners after entering a specific finding that the petitioners do not have the requisite experience in Kerala region as on the date on which the vacancies were notified and therefore they are not eligible to be in the rank list. Consequently, the inclusion of their names in the rank list for promotion to the post of EO/AO was set aside as one prepared contrary to the Recruitment Rules. The Tribunal below further directed the official respondents to include the name of the O.P.(C.A.T) No.2518 & 2525/2011 5 private party respondents in appropriate places for promotion to the post of EO/AO in the event they are otherwise eligible. Assailing the above common order, these petitions were filed under Article 227 of the Constitution of India.
3. We have heard senior Adv. Sri.K.R.B.Kaimal appearing for the petitioners, Additional Solicitor General of India Sri.P.Parameswaran Nair and Smt.T.N.Girija, learned standing counsel appearing for the other official respondents. The factual position regarding the official status of the parties is not at all disputed. The petitioners were admittedly working in other regions, namely, in Tamil Nadu and Karnataka and they were transferred to the Kerala region in 2008 and 2009 as stated earlier. It is also not disputed that their rank in the seniority list is below the private party respondents as it was one of the conditions of the transfer. It is also not disputed that to entitle promotion through departmental test SSA should have five years experience. The only question is whether the service of the petitioners in the other region can be counted to determine the eligibility for promotion to the post of EO/AO. It is admitted O.P.(C.A.T) No.2518 & 2525/2011 6 by either side that Employees Provident Fund Organaisation (EO/AO) Recruitment Rules, 2002 (for short referred to as the Rules) govern the field. As per Rule 3 of the above said Rules the method of recruitment, age limit, qualifications and other matters attached thereto are specified in Columns 5 to 14 of the schedule. The relevant column of the schedule for the purpose of adjudication of the dispute on hand is Column No.12, which reads as follows:
12 In case of (i) Promotion (Other than Examination Quota) recruitment by Section Supervisor with 5 years regular service in the promotion/ Scale of Rs.5000-8000/- serving in the respective deputation/ Regions and possessing educational qualification of absorption, matriculation or equivalent.
grade from which promotion/ (ii) By promotion on the basis of departmental deputation/ competitive examination absorption to be [Section Supervisor and Junior Hindi Translator with made. 3 years regular service in the scale of Rs.5000-8000/-
and DEO (Grade-C) with three years regular service in the scale of Rs.5000-8000/- including those DEO (Grade-C) who have already put in 5 years regular service in DEO (Grade-A) and Social Security Assistants/Assistants/Stenographers / and DEO (Grade-A and B) with 5 years regular service in the scale of Rs.4,000-6,000/- in the respective regions.] Going by Column 12 quoted above, we find that the experience of 5 years regular service shall be in the respective regions. There is no doubt for us that the service outside the O.P.(C.A.T) No.2518 & 2525/2011 7 region can no way be counted to calculate the five years regular service in the respective region. In other way, the petitioners may be qualified for promotion on the basis of the departmental test in the region in which they were working but for the transfer. That would not enure to the petitioners to appear for the departmental test in any other region. Regular service in the respective regions occurring in Column No.12 quoted above relate only to the region in which the promotions are made and nothing beyond. Such being the Rule position, we find that the impugned order of the Tribunal is in tune with the Rules. There is no perversity, illegality, error or impropriety to be rectified in exercise of the jurisdiction vested under Article 227 of the Constitution of India. The Petitions are devoid of merit. Accordingly, petitions are dismissed. No costs.
(C.N.RAMACHANDRAN NAIR, JUDGE) ( P.S.GOPINATHAN, JUDGE) ps/6/8