Kerala High Court
Antony Paul Vazhapilly vs The State Of Kerala on 29 March, 2021
Bench: Alexander Thomas, K. Babu
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MR.JUSTICE K. BABU
MONDAY, THE 29TH DAY OF MARCH 2021 / 8TH CHAITHRA, 1943
OP(KAT).NO.85 OF 2021
AGAINST THE ORDER IN OA.NO.525/2021 DATED 12-03-2021 OF THE
KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM
PETITIONER/APPLICANT IN THE O.A.:
ANTONY PAUL VAZHAPILLY, AGED 56 YEARS,
S/O. V.T. PAUL, INSTRUCTOR GRADE 1,
GOVERNMENT ENGINEERING COLLEGE, RAMAVARMAPURAM,
ENGINEERING COLLEGE P.O., TRISSUR DISTRICT,
PIN 680 009, RESIDING AT VAZHAPILLY HOUSE,
NARAKAL P.O., ERNAKULAM, PIN-682 505.
BY ADVS.SRI.P.N.SANTHOSH, SMT.K.P.GEETHA MANI
RESPONDENTS/RESPONDENTS IN THE O.A.:
1 THE STATE OF KERALA,
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
HIGHER EDUCATION (H) DEPARTMENT,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM, PIN 695 001.
2 THE DIRECTOR OF TECHNICAL EDUCATION,
DIRECTORATE OF TECHNICAL EDUCATION,
THIRUVANANTHAPURAM, PIN 695 033.
SRI.ANTONY MUKKATH, SR.GOVT.PLEADER
THIS OP(KERALA ADMINISTRATIVE TRIBUNAL) HAVING COME UP FOR
ADMISSION ON 29.03.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
ALEXANDER THOMAS & K.BABU, JJ.
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O.P.(KAT) No. 85 of 2021
[arising out of the impugned interim order dated 12.3.2021 in
O.A. (Ekm) No. 525 of 2021 on the file of the KAT, Ernakulam Bench]
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Dated this the 29th day of March, 2021
JUDGMENT
The prayers in the afore captioned Original Petition (KAT) filed under Articles 226 & 227 of the Constitution of India are as follows:
(See pages 11 & 12 of the paper book of this O.P.) "
i. Issue a Writ of mandamus or any other appropriate writ, order or direction declaring that the petitioner is entitled to get transfer appointment to the post of Lecturer in Mechanical Engineering (Polytechnics) in the 35% quota reserved for by transfer appointment based on his seniority in the feeder category or 1 st Grade Instructor with effect from the date of occurrence of vacancy prior to 1.3.2019 in the Department ii. Issue a writ of mandamus or any other appropriate writ, order or direction calling for the records leading to Exhibit P-2 and set aside the same by declaring that for appointment to the post of Lecturer in Polytechnics, convening of DPC is not required in the light of Exhibit P-4 and P-5.
iii. Direct the respondents to grant all monetary benefits including arrears of salary attached to the post of Lecturer in Mechanical Engineering (Polytechnics) with effect from the date on which the petitioner is entitled to get transfer appointment to the said post in the 35% quota. And iv. Pass such other orders or directions as deemed just, fit and necessary in the facts and circumstances of the case."
2. Heard Sri.P.N.Santhosh, learned counsel appearing for the petitioner herein/sole applicant in the O.A. before the Tribunal and Sri.Antony Mukkath, learned Senior Government Pleader appearing for the respondents herein/respondents in the O.A. before the Tribunal. O.P.(KAT) No. 85 of 2021
..3..
3. The petitioner herein has filed the instant Ext.P-1 original application O.A.(EKM) No. 525/2021 before the Kerala Administrative Tribunal, Ernakulam Bench, with the following prayers: (See pages 28 & 29 of the paper book of this O.P.) "
i. Declare that the applicant is entitled to get regular promotion to the post of Lecturers in Mechanical Engineering (Polytechnics) in the 35% quota reserved for by transfer appointment based on his seniority in the feeder category of 1 st Grade Instructor with effect from the date of occurrence of vacancy prior to 1.3.2019 in the Department. ii. Direct the respondents to promote the applicant to the post of Lecturer in Mechanical Engineering (Polytechnics) in one of the existing vacancy.
iii. Direct the respondents to grant all monetary benefits including arrears of salary attached to the post of Lecturer in Mechanical Engineering (Polytechnics) with effect from the date on which the applicant is entitled to get promotion to the said post in the 35% quota reserved for by transfer appointment. And.
iv. Pass such other orders or directions as deemed just, fit and necessary in the facts and circumstances of the case."
4. The petitioner had sought the following interim reliefs from the Tribunal: (See page 29 of the paper book of this O.P.) "To issue a direction directing the respondents to promote the applicant to the post of Lecturers in Mechanical Engineering (Polytechnics) provisionally in one of the existing vacancies pending final disposal of the Original Application."
5. After hearing both sides the Tribunal has passed the impugned Ext.P-2 interim order dated 12.3.2021 in the above O.A., whereby the said interim reliefs sought for by the petitioner have not O.P.(KAT) No. 85 of 2021 ..4..
been granted (See pages 41 to 43 of the paper book of this O.P.). The Tribunal has noted in Ext.P-2 that the applicant presses for an order of provisional promotion since he is due to retire from service on 31.3.2021. But, the learned Senior Government Pleader has pointed out that Departmental Promotion Committee (DPC) is not likely to be convened before 31.3.2021 and that therefore it may not be feasible to effect promotion in the meantime. Hence, the Tribunal has ordered that it is made clear that the retirement of the applicant will not stand in the way of extending the benefits due to him based on his seniority, on notional promotion. The abovesaid interim order at Ext.P-2 that is under challenge in this original petition.
6. The above original petition has been filed before this Court on 22.3.2021. The same had come up for consideration before us for admission on 23.3.2021, on which day we had requested the learned Senior Government Pleader to get instructions in the matter and accordingly the matter has been listed before us today. The case of the petitioner is that, he is presently working as 1 st Grade Instructor in Government Engineering College, Thrissur, and that going by the stipulations of the Special Rules for Kerala Technical Education Service Rules, the petitioner would come under the feeder O.P.(KAT) No. 85 of 2021 ..5..
post for by transfer appointment to the post of Lectures in Polytechnics. That, it is only on account of the delay on the part of the 2nd respondent that the 35 % quota set apart for in service candidates were not filled up from 2010 onwards, except a few appointments. Further that, it is now well settled by the decision of this Court in Suresh v. State of Kerala [2021 (1) KLT 566] that vacancies in the post of Lecturers in Technical streams in Polytechnics which arose prior to 1.3.2019 are to be filled up in accordance with the stipulations in the Special Rules, 2010, i.e., 35% of the vacancies are to be filled up by transfer appointment. That, options were called from qualified hands eligible to be appointed under 35% quota and the petitioner is the 4th position in the seniority list for appointment to the post of Lecturer in Mechanical Engineering, and that though he had submitted his option for by transfer appointment on 11.2.2021 and a seniority list was drawn, no orders have been issued by the 2 nd respondent etc.
7. The learned Senior Government Pleader would point out that he has been furnished instructions by the Department stating that in view of the model code of conduct which has been enforced by the Election Commission of India as the elections to the Kerala O.P.(KAT) No. 85 of 2021 ..6..
Legislative Assembly have been notified, it is legally necessary to seek opinion of the Election Commission of India authorities on granting temporary appointment to the applicant in a case like this and that the said process cannot be completed at any rate before the petitioner retires from service on 31.3.2021, which is only two days away. Further, the learned Senior Government Pleader would also submit that he has been instructed to submit by the Department that for regular appointment by method of transfer from the post of 1st Grade Instructor in Government Engineering College to the post of Lectures in Polytechnics can be considered only through the DPC process and not otherwise, and it is not feasible to complete the said process before the petitioner retires from service on 31.3.2021.
8. In the light of these aspects, we are not in a position to accede to the request of the petitioner that the respondents in the O.P. should be directed either to make temporary appointment or regular appointment from the post of 1 st Grade Instructor in Government Engineering College to the post of Lectures in Polytechnics. Further at this stage, it may not be right and proper for us to issue a mandatory direction that the petitioner should either be temporarily or regularly appointed to the said post, as the claims of O.P.(KAT) No. 85 of 2021 ..7..
others will have to be processed and the availability of vacancies, the seniority position of the petitioner, fitness etc will have to be examined, and since the petitioner is to retire from service within two days, it will not be feasible for the respondent authorities to complete the process in that regard even otherwise. That apart, now in view of the model code of conduct enforced by the Election Commission of India, the stand of the respondents in the O.A. that they will have to necessarily seek opinion of the Election Commission of India authorities for making appointment in this nature, cannot be faulted. Further, we see that the Tribunal has adequately safeguarded the position of the original petitioner by making it clear that the retirement of the applicant will not stand in the way of extending the benefits due to him based on his seniority on notional promotion, etc.
9. In the light of these aspects, we are not in a position to accede to the request of the petitioner for issuing any mandatory directions to the respondents in this petition. However, the respondents in the O.P. will ensure that their pleadings are duly completed before the Tribunal without any further delay, at any rate immediately after the Tribunal re-opens after the Summer Vacation. The Tribunal is requested to take all reasonable endeavors possible to O.P.(KAT) No. 85 of 2021 ..8..
ensure the early disposal of the O.A., by the end of June, 2021 or within any reasonable time limit that may be found appropriate by the Tribunal, by taking note of the interest of administration of justice.
With these observations and directions, the above Original Petition (KAT) will stand finally disposed of.
Sd/-
ALEXANDER THOMAS, JUDGE Sd/-
K.BABU, JUDGE MMG O.P.(KAT) No. 85 of 2021 ..9..
APPENDIX PETITIONER'S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE ORIGINAL
APPLICATION (EKM) N0. 525/2021 ALONG
WITH IT ANNEURES.
ANNEXURE A1 A TRUE COPY OF THE B. TECH MECHANICAL
ENGINEERIG0MDEGREE CERTIFICATE DATED 50.09.2019 ISSUED TO THE PETITIONER BY THE UNIVERSITY OF CALICUT.
ANNEXURE A2 A TRUE COPY OF THE COMMON ORDER NO.
EC2/30817/2010/DTE9II0 DATED 18.8.2010 ISSUED BY THE SENIOR JOINT DIRECTOR.
ANNEXURE A3 A TRUE COPY OF THE ORDER NO.
EC2/35863/13/DTE/DATED 27.11.2013
ISSUED BY THE SENIOR JOINT DIRECTOR
DECLARING PROBATION OF THE PETITIONER
IN THE POST OF 1ST GRADE INSTRUCTOR.
ANNEXURE A4 A TRUE COPY OF THE RELENT PAGES OF THE
GRADATION LIST OF LECTURER IN
GOVERNMENT POLYTECHNIC COLLEGES/
WORKSHOP SUPERINTENDENT IN
POLYTECHNIC, COLLEGE FIRST GRADE
INSTRUCTORS IN GOVERNMENT ENGINEERING COLLEGE TECHNICAL HIGH SCHOOL, SUPERINTENDENT PUBLISHED BY THE 2ND RESPONDENT BY ORDER NO. EGI/1745 /16 DTE DATED 28.05.2019.
ANNEXURE A5 A TRUE COPY OF THE CIRCULAR NO.
EGI/1571/21/D.T.E. DATED 03.02.201 ISSUED BY THE 2ND RESPONDENT (IN CHARGE).
O.P.(KAT) No. 85 of 2021
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ANNEXURE A6 A TRUE COPY OF THE PRO FORMA DATED 11.02.2021 SUBMITTED BY THE PETITIONER ALONG WITH THE COVERING LETTER NO.
EI/2385/21/GECTCR DATED 16.02.2201 OF THE PRINCIPAL GOVT. ENGINEERING COLLEGE, THRISSUR.
EXHIBIT P2 A TRUE COPY OF THE INTERIM ORDER DATED 12.03.2021 IN O.A. (EKM) NO. 525/2021 OF THE HONBLE KERALA ADMINISTRATIVE TRIBUNAL.
EXHIBIT P3 A TRUE COPY OF THE NOTIFICATION NO EGI/33328/10/DTE DATED 30.03.2011 PUBLISHED IN THE KERALA GAZETTE PART II, EDUCATION DEPARTMENT) PUBLISHING THE REVISED SELECT LIST OF PORTION TO THE POST OF LECTURER AND OTHER POSTS IN THE TECHNICAL EDUCATION DEPARTMENT DRAW BY THE AD HOC DPC (LOWER) WHICH MET ON 30.03.2011.
EXHIBIT P4 A TRUE COPY OF THE ORDER NO.
EC5/16197/12/DTE/ DATED 19.11.2014
ISSUED FROM THE OFFICE OF THE
DIRECTORATE OF TECHNICAL EDUCATION.
EXHIBIT P5 A TRUE COPY OF THE GOVERNMENT CIRCULAR
NO. 11919/R1/06/P & ARD DATED
14/03/2007 ISSUED BY THE PRINCIPAL
SECRETARY TO GOVERNMENT, PERSONNEL AND ADMINISTRATIVE REFORMS (RULES ) DEPARTMENT.
EXHIBIT P6 A TRUE COPY OF THE CIRCULAR NO.
EGI/1571/21/DTE DATED 09.03.201 ALONG WITH THE PROVISIONAL SENIORITY OF CANDIDATES WHO ACQUIRED QUALIFICATIONS FOR APPOINTMENT OF BY TRANSFER TO THE SPOT OF LECTURER I POLYTECHNIC AS ON 01.03.2019.