Kerala High Court
K.P. Rajitha vs High Court Of Kerala on 17 March, 2016
Author: P.N.Ravindran
Bench: P.N.Ravindran, A.Muhamed Mustaque
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN
&
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
WEDNESDAY, THE 31ST DAY OF AUGUST 2016/9TH BHADRA, 1938
WA.No. 1297 of 2016 () IN WP(C).21579/2015
--------------------------------------------
AGAINST THE JUDGMENT IN WP(C) 21579/2015 of HIGH COURT OF KERALA DATED
17-03-2016
APPELLANT/PETITIONER:
---------------------------------
K.P. RAJITHA
OFFICE ATTENDANT (HIGER GRADE),
HIGH COURT OF KERALA, ERNAKULAM.
BY ADVS.SRI.P.RAVINDRAN (SR.)
SRI.SREEDHAR RAVINDRAN
RESPONDENT/RESPONDENT:
------------------------------------
HIGH COURT OF KERALA
ERNAKULAM, KOCHI-682 031,
REPRESENTED BY ITS REGISTRAR GENERAL.
BY ADV. SMT.V.P.SEEMANDINI (SR.)
BY ADV. SRI.M.R.ANISON
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 31-08-2016, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
vpv
P.N.RAVINDRAN & A.MUHAMED MUSTAQUE, JJ.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
W.A.No.1297 of 2016
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
Dated this the 31st day of August, 2016
JUDGMENT
P.N.Ravindran, J.
This writ appeal arises from the judgment delivered by a learned single Judge of this court on 17.3.2016 in W.P.(C) No.21579 of 2015. The appellant is the petitioner therein. By the impugned judgment, the learned single Judge dismissed the writ petition without considering the merits of the contentions put forward by either side on the short ground that in view of the dismissal of W.P.(C)No.19147 of 2015, which was also dismissed by the very same judgment, the writ petition would stand dismissed. The brief facts of the case are as follows:
2. The appellant was appointed as Office Attendant in this court on 17.10.2002 and she joined duty on 19.10.2002. Her probation in the category of Office Attendant was declared satisfactorily completed with effect from 19.10.2004. It is not in dispute that the appellant, who is a graduate, has passed the K.G.T.E. Lower and Higher in Typewriting (English). She also possesses a certificate in Computer Word Processing.
3. Rule 20(7) of the Kerala High Court Service Rules, 2007 W.A.No.1297 of 2016 2 (hereinafter referred to as "the Rules" for short) as it stood prior to 28.10.2014 reads as follows:
"(7)(1) For appointment by transfer to a category in any of the Sub Divisions under Division II, for which no feeder category is prescribed in these Rules, priority for appointment shall be determined in the following manner:
(i) First, willing and qualified hands holding any other posts in Division II with identical scale of pay shall be considered, seniority being reckoned with effect from the date of entry into any category in Division II;
(ii) In the absence of suitable hands in such categories as provided in clause (i) above, willing and qualified hands holding any other post in Division II with a lesser scale of pay shall be considered, reckoning seniority in the same manner as in clause (i) above;
(iii) In the absence of suitable hands in the categories covered by clauses (i) & (ii) above, willing and qualified hands holding any posts mentioned against categories 1 to 5 in Division IV shall be considered, seniority being reckoned with effect from the date of entry into any of the categories in Division IV.
(iv) In the absence of suitable hands in the categories covered by clauses (i) to (iii) above, willing and qualified hands holding any other post in Division IV shall be considered, seniority being reckoned as provided in clause (iii) above.
(2) For appointment by transfer to a category in Division IV, for which no feeder category is prescribed in these Rules, priority for appointment shall be determined in the following manner:
(i) First, willing and qualified hands holding any other posts in Division IV with identical scale of pay shall be considered, seniority among them being reckoned with effect from the date of entry into any category in Division IV;
(ii) In the absence of suitable hands in categories covered by clause (i) above, willing and qualified hands holding any other post in Division IV with a lesser scale of pay shall be considered, reckoning seniority in the same manner as in clause (i) above."
Sub-clause (iii) of clause (1) of sub-rule (7) of Rule 20 of the Rules was amended with effect from 28.10.2014 by a W.A.No.1297 of 2016 3 notification issued by this court. Sub-clause (iii) as amended reads as follows:
"In the absence of suitable hands in the categories covered by clauses (i) & (ii) above, willing and qualified hands holding any posts mentioned against categories 1 to 6 in Division IV with identical scale of pay shall be considered, seniority being reckoned with effect from the date of entry into any of the categories in Division IV."
The only effect of the amendment to Rule 20(7)(1) is that instead of confining the appointment by transfer to categories 1 to 5 in Division IV with identical scale of pay, category 6 was also included.
4. The methods of appointment to the post of Typist Grade II which is category 4 in sub-division 3 in Division II of Annexure I to the Rules are as follows:
"Typist Grade II Appointment by transfer,
recruitment by transfer or
direct recruitment or
recruitment under rule 11(2)"
5. The qualifications for appointment to the post of Typist Grade II are:
"1. Plus Two or equivalent
2. K.G.T.E. (Higher) in Typewriting (English) Desirable:
Certificate in computer word processing or equivalent."
As stated earlier, it is not in dispute that the appellant possesses these qualifications.
6. The term 'appointment by transfer' is defined in sub- W.A.No.1297 of 2016 4 rule (2) of Rule 2 of the Rules which reads as follows:
"(2) "Appointment by Transfer" means appointment of an approved probationer in one post to another post, which is not in the direct line of promotion."
7. The term 'recruitment by transfer' is defined in sub- rule (14) of Rule 2 of the Rules which reads as follows:
"(14) Recruitment by Transfer.- A person is said to be 'recruited by transfer' to the Service, when at the time of his first appointment thereto, he is a member of another service as defined in rule 2(15) of the Kerala State and Subordinate Services Rules, 1958 or any other service prescribed by these Rules."
8. The term "Direct Recruitment" has been defined in sub-rule (6) of Rule 2 of the Rules, which reads as follows:
"(6) Direct Recruitment.- A person is said to be "directly recruited" to the Service when he is appointed substantively for the first time to the Service."
9. The recruitment contemplated in sub-rule (2) of Rule 11 of the Rules relates to appointment of physically handicapped persons satisfying the criteria laid down in Rule 9
(e) of Part II of the Kerala State and Subordinate Services Rules, 1958. Such appointment can be made only to the post of Computer Assistant Grade II, Telephone Operator, Typist- Copyist Grade II, Clerical Assistant, Binder, Lift Operator, Duplicator Operator, Gardener and Office Attendant.
10. With a view to appoint employees governed by sub- rule (7) of Rule 20 as it stood prior to 28.10.2014 to the W.A.No.1297 of 2016 5 category of Typist-Copyist Grade II, the Registry of this court prepared a panel for appointment and it came into force on 29.7.2011. A copy thereof is on record as Ext.P1. The appellant is serial No.10 therein. It is stated therein that the persons named therein, 26 in number, are empanelled for appointment as Typist-Copyist Grade II in this court. It is also stated that the names are arranged in the order of inter se seniority among those who qualified in the typing test held on 23.7.2011. It is further stated that serial Nos.7, 9, 11, 15 and 18 namely Smt.Pushpakumari D., Higher Grade Peon, Smt.Gracy K.A., Higher Grade Peon, Smt.Rathy K.P., Peon, Smt.Deepa M.M., Peon and Smt.Sumathi K.S., Peon, were included in the previous panel which was brought into force as per proceedings dated 7.2.2008, but were not appointed by transfer to the category of Typist Grade II. It is also stipulated that the panel will remain in force for a period of three years from 29.7.2011. It is not in dispute that candidates up to serial No.9 in Ext.P1 were regularly appointed by transfer to the category of Typist Grade II. Smt.K.S.Sindhu, Higher Grade Peon, who is serial No.8 in Ext.P1 and was appointed by transfer as Typist-Copyist Grade II, was later empanelled for appointment by transfer as Computer Assistant Grade II as per this court's proceedings W.A.No.1297 of 2016 6 dated 6.3.2014.
11. While Ext.P1 was in force, Sri.V.R.Sadasivan, Selection Grade Typist-Copyist of this court, who was due to retire from service on 31.8.2014 on attaining the age of superannuation, entered on leave preparatory to retirement, on 8.7.2014. That vacancy was filled up by temporarily promoting Sri.K.N. Premanathan, Senior Grade Typist-Copyist as per Ext.P2 proceedings dated 16.7.2014. By the very same order, the consequential vacancy of Senior Grade Typist-Copyist that arose on the temporary promotion granted to Sri.K.N. Premanathan as Selection Grade Typist-Copyist was filled up by temporarily promoting Smt.S. Geetha, Typist-Copyist Grade I as Senior Grade Typist-Copyist. The consequential vacancy of Typist-Copyist Grade I was filled up by temporarily promoting Smt.Pushpalatha P., Typist-Copyist Grade II with effect from 8.7.2014. By the very same order, the appellant, who had become a Higher Grade Office Attendant by the time Ext.P1 was issued, was appointed by transfer as Typist-Copyist Grade II on a temporary basis in the vacancy of Smt. Pushpalatha P., Typist-Copyist Grade II, who was temporarily promoted as Typist-Copyist Grade I.
12. The appellant's appointment by transfer as Typist- W.A.No.1297 of 2016 7 Copyist Grade II, by Ext.P2 proceedings dated 16.7.2014, though on a temporary basis was made at a time when the panel evidenced by Ext.P1 was in force and had not ceased to be valid. It is not in dispute that Sri.V.R.Sadasivan did not rejoin duty after availing leave preparatory to retirement and he retired from service on 31.8.2014. Thereupon, by Ext.P3 proceedings dated 5.9.2014, the temporary promotions granted to Sri.K.N.Premanathan as Selection Grade Typist-Copyist, Smt.S.Geetha as Senior Grade Typist-Copyist and Smt.Pushpalatha P. as Typist-Copyist Grade I were regularised with effect from 1.9.2014. However, as regards the appellant, on the reasoning that Ext.P1 panel prepared for appointment by transfer to the post of Typist-Copyist Grade II in which she was included, expired on 28.7.2014 on completion of the period of 3 years and as the vacancy of Typist-Copyist Grade II against which she was appointed by transfer on a temporary basis as per Ext.P2 became regular only with effect from 1.9.2014, the then Hon'ble Acting Chief Justice extended the temporary appointment granted to the appellant as Typist-Copyist Grade II until a suitable candidate is selected after a due process of fresh selection.
13. Aggrieved thereby, the appellant submitted Ext.P4 W.A.No.1297 of 2016 8 representation dated 20.9.2014 before the Hon'ble the Chief Justice. In that representation she raised two contentions. The first was that she could have been accommodated against the vacancy of Sri.V.R.Sadasivan which arose on 1.9.2014 as he had availed leave preparatory to retirement on 8.7.2014 and had not rejoined duty. The second was that Sri.A.Saly, Office Superintendent (Higher Grade) was compulsorily retired from service with retrospective effect from 8.4.2014 (the date on which he was placed under suspension) as per Ext.P9 proceedings dated 20.6.2014, that the said vacancy of Sri.A. Saly was filled up by temporarily promoting Sri.V.A.Mahaboob, Office Superintendent and against the consequential vacancy of Sri.V.A.Mahaboob, Smt.P.R.Rosy, Selection Grade Typist- Copyist was temporarily promoted as Office Superintendent with effect from 8.4.2014, that consequent on the said temporary promotion given to Smt.P.R.Rosy, Sri.M.J.Sebastian, Senior Grade Computer Assistant was promoted as Selection Grade Computer Assistant on a temporary basis, that against the consequential vacancy of Sri.M.J.Sebastian, Sri.R.Rajesh Kumar, Computer Assistant Grade I was promoted as Senior Grade Computer Assistant on a temporary basis, that in the resultant vacancy, Smt.V.S.Sindhu, Computer Assistant Grade W.A.No.1297 of 2016 9 II was promoted as Computer Assistant Grade I on a temporary basis and in the resultant vacancy, Smt.K.S.Sindhu, Typist- Copyist Grade II, who was already included in the panel for appointment by transfer as Computer Assistant Grade II, was temporarily appointed by transfer as Computer Assistant Grade II. The appellant contended that as two vacancies of Typist- Copyist Grade II were thus available on 1.9.2014, orders regularising her in service as Typist-Copyist Grade II may be issued. The said representation was considered and rejected by Ext.P5 Office Memorandum dated 17.10.2014 on two grounds. As regards the vacancy which arose consequent on Sri.V.R.Sadasivan, Selection Grade Typist-Copyist entering on leave preparatory to retirement, the stand taken was that his vacancy became regular only with effect from 1.9.2014 and by that time, the panel from which the appellant was temporarily promoted as Typist-Copyist Grade II expired on 28.7.2014. As regards the appellant's claim that she ought to have been accommodated in the consequential vacancy of Typist-Copyist Grade II which arose consequent on the imposition of the major punishment of compulsory retirement on Sri.A.Saly, Office Superintendent (Higher Grade), the stand taken was that in view of paragraph 19 of the Manual of Disciplinary Proceedings, W.A.No.1297 of 2016 10 the vacancy which arose consequent on the imposition of punishment on Sri.A.Saly cannot be filled substantively for a period of one year. Shortly thereafter, by Ext.P6 proceedings dated 29.10.2014, the appellant was discharged of her duties as Typist-Copyist Grade II with effect from 28.10.2014 and posted back as Higher Grade Office Attendant.
14. The appellant thereupon submitted Ext.P7 representation dated 14.11.2014 before the Hon'ble the Chief Justice seeking regularisation in service as Typist-Copyist Grade II with effect from 9.4.2014, the date on which Sri.A.Saly was compulsorily retired from service. In the alternative, she claimed regularisation in the vacancy which arose on 1.9.2014 on the retirement of Sri.V.R. Sadasivan, Selection Grade Typist- Copyist. That representation was also rejected by Ext.P8 Office Memorandum dated 11.12.2014. The instant writ petition was thereupon filed challenging Exts.P5, P6 and P8 orders and seeking regularisation in service as Typist-Copyist Grade II with effect from the date of Ext.P2, viz. 16.7.2014 or such other earlier date depending upon the filling up of the resultant vacancies. It was contended that as a clear vacancy had arisen on 1.9.2014 on the retirement of Sri.V.R.Sadasivan, Selection Grade Typist-Copyist on 31.8.2014, as he had not rejoined duty W.A.No.1297 of 2016 11 after availing leave preparatory to retirement with effect from 8.7.2014, the appellant ought to have been regularised in service with effect from 1.9.2014 in the category of Typist- Copyist Grade II. It was further contended that the amendment to the Kerala High Court Service Rules, 2007 with effect from 28.10.2014 or the fact that Ext.P1 list had ceased to be in force on 28.7.2014 cannot therefore be held out against the appellant. The appellant also contended that as a clear vacancy had arisen consequent on the imposition of the punishment of compulsory retirement on Sri.A.Saly with effect from 8.4.2014, she ought to have been accommodated in the consequential vacancy of Typist-Copyist Grade II which arose consequent on the appointment by transfer of Smt.K.S.Sindhu, Typist-Copyist Grade II as Computer Assistant Grade II.
15. The respondent opposed the writ petition by filing a counter affidavit dated 10.11.2015. It was contended that the writ petition is liable to be dismissed for suppression of material facts, on account of delay and latches and also for non-joinder of necessary parties. It was contended that on 29.10.2014, the date on which Ext.P6 proceedings was issued, a fresh empanelment of members of the High Court service was done for the purpose of appointment by transfer to the category of W.A.No.1297 of 2016 12 Typist-Copyist Grade II and in that list, a copy of which is Ext.R1(a), the name of the appellant does not find a place, the reason being that she did not qualify in the typing test conducted for the purpose. It was further stated that thereafter, another list evidenced by Ext.R1(b) was published on 13.7.2015 and in that list also, the name of the appellant did not find a place for the aforesaid reason. The respondent contended that as appointments have already been effected from Ext.R1(a) list and the petitioner had not challenged its validity and also for the reason that no one named in Exts.R1
(a) and R1(b) have been joined as parties to the writ petition, the writ petition is liable to be dismissed for non-joinder of necessary parties, for suppression of material facts and on account of delay and latches. On the merits it was contended that after Ext.P1 list was prepared and during its currency, viz. during the period from 29.7.2011 to 28.7.2014, only 9 regular vacancies arose in the category of Typist-Copyist Grade II and those vacancies were filled up by appointing the seniormost 9 persons included in that list. It was contended that no permanent vacancy in the category of Typist-Copyist Grade II arose during the period from 16.7.2014, viz. the date on which the writ petitioner was temporarily appointed by transfer as W.A.No.1297 of 2016 13 Typist-Copyist Grade II, to 28.7.2014, the date of expiry of Ext.P1 list. It was further contended that in view of paragraph 19 of the Manual for Disciplinary Proceedings, the vacancy which arose consequent on the imposition of the punishment of compulsory retirement on Sri.A.Saly, Office Superintendent (Higher Grade) could not have been filled up substantively until after the expiry of the period of one year from the date of compulsory retirement and therefore, as the said period of one year expired only on 1.6.2015 and Ext.P1 list had ceased to be in force by then, the appellant cannot claim appointment to the consequential vacancy which arose on account of the imposition of the punishment of compulsory retirement on Sri.A.Saly, Office Superintendent (Higher Grade). The respondent also contended that in the meanwhile, Ext.R1(a) panel had been prepared and published and the name of the appellant did not find a place therein for the reason that she did not qualify in the proficiency test. As regards the appellant's contention that a regular vacancy had arisen on 1.9.2014 consequent on the retirement of Sri.V.R.Sadasivan, Selection Grade Typist- Copyist, relying on Ext.R1(d), it was contended that as the regular vacancy arose only with effect from 1.9.2014 consequent on the retirement of Sri.V.R.Sadasivan on W.A.No.1297 of 2016 14 31.8.2014, the appellant's appointment to the post of Typist- Copyist Grade II with effect from 16.7.2014 can only be treated as temporary. It was also contended that as Ext.P1 list had ceased to be in force by the time a regular vacancy arose on 1.9.2014, the appellant cannot claim appointment in that vacancy. It was also contended that Smt.Deepa M.M., Binder, rank No.1 in Ext.R1(a) proceedings dated 29.10.2014 was accommodated against the vacancy which arose on 1.9.2014 consequent on the retirement of Sri.V.R.Sadasivan, Selection Grade Typist-Copyist on 31.8.2014, that Sri.Lijumon P.C., Court Keeper (Higher Grade), rank No.2 in that list was appointed on 29.10.2014, that Sri.Vijayan O.B., Higher Grade Office Attendant, rank No.1 in Ext.R1(b) proceedings dated 13.7.2015 was also appointed on 21.7.2015 and that in the absence of those persons on the party array, the writ petition is liable to be dismissed for non-joinder of necessary parties. The respondent further contended that in view of rules 19 and 21 of the Rules, the appellant had no right to continue in the post of Typist- Copyist Grade II after Ext.R1(a) proceedings dated 29.10.2014 was issued and therefore, Ext.P6 order discharging her from the post of Typist-Copyist Grade II with effect from 28.10.2014 and posting her back as Office Attendant Higher Grade is perfectly W.A.No.1297 of 2016 15 legal and valid.
16. Shorn of details, the substance of the averments in the counter affidavit filed by the respondent is that by the time a substantive vacancy of Typist-Copyist Grade II arose on 1.9.2014 consequent on the retirement of Sri.V.R.Sadasivan, Selection Grade Typist-Copyist, Ext.P1 list had ceased to be in force and that no substantive appointment could have been made against the vacancy which arose consequent on the imposition of the punishment of compulsory retirement on Sri.A.Saly, Office Superintendent (Higher Grade) and that in the subsequent panels prepared, viz. Exts.R1(a) and R1(b), the name of the appellant did not find a place for the reason that she did not qualify in the proficiency test.
17. We heard Sri.P.Ravindran, learned Senior Advocate appearing for the appellant and Smt.V.P.Seemandini, learned Senior Advocate appearing for the respondent. We have also gone through the pleadings and the materials on record. Sub- rule (7) of Rule 20 of the Kerala High Court Service Rules, 2007 stipulates that for appointment by transfer to a category in any of the Sub Divisions under Division II, for which no feeder category is prescribed in the Rules, priority for appointment shall be determined in the manner set out therein. In sub- W.A.No.1297 of 2016 16 clause (i) it is provided that the first priority shall be to willing and qualified hands holding any other post in Division II with an identical scale of pay, which in the instant case is a post carrying the same scale of pay as Typist-Copyist Grade II. The appellant does not fall in that category. Sub-clause (ii) of clause (1) of sub-rule (7) of Rule 20 stipulates that in the absence of suitable hands in such categories as provided in clause (i), willing and qualified hands holding any other post in Division II with a lesser scale of pay shall be considered. As per sub- clause (iii) of clause (1) of sub-rule (7) of Rule 20 as it stood in force immediately prior to 28.10.2014 it was provided that in the absence of suitable hands in the categories covered by clauses (i) & (ii) above, willing and qualified hands holding any post mentioned against categories 1 to 5 in Division IV shall be considered. In sub-clause (iv) it is provided that in the absence of suitable hands in the categories covered by clauses (i) to (iii) above, willing and qualified hands holding any other post in Division IV shall be considered, seniority being reckoned as provided earlier. The appellant falls in that category namely the category covered by sub-clause (iv) of clause (1) of sub- rule (7) of Rule 20 of the Rules. It was while she was working as Office Attendant Higher Grade that she was subjected to a W.A.No.1297 of 2016 17 proficiency test (held on 23.7.2011) for the purpose of assessing her suitability for appointment by transfer to the post of Typist-Copyist Grade II. She was found suitable and included in the list thus prepared. A copy thereof is on record as Ext.P1. The stand of the respondent is that as Ext.P1 ceased to be in force on 28.7.2014 and a regular vacancy of Typist- Copyist Grade II consequent on the retirement of Sri.V.R. Sadasivan from service arose only on 1.9.2014, the appellant who was temporarily appointed by transfer to the category of Typist-Copyist Grade II cannot continue in service. It is contended that the services of all others who were temporarily promoted consequent on Sri.V.R. Sadasivan, Selection Grade Typist-Copyist entering on leave preparatory to retirement with effect from 8.7.2014 were regularised with effect from 1.9.2014 for the reason that in their case, there was no panel as in the instant case. It is also contended that in the subsequent proficiency tests which were conducted, the appellant was not found suitable and was not empanelled and therefore, she cannot claim regularisation in service as Typist-Copyist Grade II following her temporary appointment by transfer as per Ext.P2 proceedings dated 16.7.2012. It is also contended that the regular vacancy of Typist-Copyist Grade II which arose on W.A.No.1297 of 2016 18 1.9.2014 consequent on the retirement of Sri.V.R.Sadasivan, Selection Grade Typist-Copyist was filled up by appointing rank No.1 in Ext.R1(a) list namely Smt.Deepa M.M., Binder.
18. The Rules do not contain a provision enabling the Registry to prepare a list of candidates selected for appointment by transfer. The Rules do not also prescribe a period of validity for such a list. The committee for framing the High Court Rules and the High Court Service Rules had at its meeting held on 23.7.2010 resolved to recommend that the period of validity of the select list for appointment to the category of Typist-Copyist Grade II be fixed as three years from the date of publication. Even if we were to take it that the prescription of a three year period of validity for the panel prepared for appointmnet by transfer is in order, we are of the opinion that in the instant case, the appellant is entitled to succeed on the short ground that a vacancy of Typist-Copyist Grade II was available on 31.8.2014 and on 1.9.2014 against which she could have been regularly appointed following her temporary appointment by transfer as Typist-Copyist Grade II as per Ext.P2 proceedings dated 16.7.2014. Even going by the stand of the respondent Ext.P1 list was valid till 28.7.2014. The appellant had also qualified in the proficiency test held on 23.7.2011 before it was W.A.No.1297 of 2016 19 prepared. All the others senior to her in that list had been appointed on a regular basis by transfer to the post of Typist- Copyist Grade II. Shortly before the expiry of Ext.P1 list, Sri.V.R. Sadasivan, Selection Grade Typist-Copyist entered on leave preparatory to retirement on 8.7.2014. His date of superannuation was 31.8.2014. Consequent on Sri.V.R. Sadasivan entering on leave preparatory to retirement on 8.7.2014, the vacancy in the post of Selection Grade Typist- Copyist was filled up by temporarily promoting Sri.K.N. Premanathan, Senior Grade Typist-Copyist as per Ext.P2 proceedings dated 16.7.2014. By the very same order, the consequential vacancy of Senior Grade Typist-Copyist that arose on the temporary promotion granted to Sri.K.N. Premanathan as Selection Grade Typist-Copyist was filled up by temporarily promoting Smt.S.Geetha, Typist-Copyist Grade I as Senior Grade Typist-Copyist. The consequential vacancy of Typist-Copyist Grade I was filled up by temporarily promoting Smt.Pushpalatha P., Typist-Copyist Grade II with effect from 8.7.2014. By the very same order, the appellant herein was appointed by transfer as Typist-Copyist Grade II on a temporary basis in the vacancy of Smt. Pushpalatha P., who was temporarily promoted as Typist-Copyist Grade I. W.A.No.1297 of 2016 20
19. The appellant's appointment by transfer as Typist- Copyist Grade II by Ext.P2 proceedings dated 16.7.2014 though on a temporary basis was made at a point of time when the panel evidenced by Ext.P1 was in force. The respondent has no case that Sri.V.R.Sadasivan had rejoined duty after cancelling the leave availed by him and that it was after rejoining duty that he retired from service on 31.8.2014. Sub-rule (1) of Rule 72 of Part I of the Kerala Service Rules which applies to employees of this court stipulates that an officer on leave may not return to duty before the expiry of the period of leave granted to him, unless he is permitted to do so by the authority which granted him leave. Sub-rule (2) of Rule 72 above referred to stipulates that notwithstanding anything contained in sub-rule (1), an officer on leave preparatory to retirement shall be precluded from withdrawing his request for permission to retire and from returning to duty, save with the consent of the authority empowered to appoint him. Note I to the said Rules stipulates that no formal cancellation of the unexpired portion of leave is necessary when an officer returns to duty before the expiry of his leave.
20. The respondent does not have a case that Sri.V.R. Sadasivan had rejoined duty after cancelling the leave availed W.A.No.1297 of 2016 21 by him and that he retired from service on 31.8.2014 after rejoining duty. In other words, as on the date of expiry of the panel evidenced by Ext.P1 namely 28.7.2011 and as on 31.8.2014, a clear vacancy of Typist-Copyist Grade II was in existence consequent on the chain of promotions effected following the availing of leave preparatory to retirement by Sri.V.R.Sadasivan. However the respondent declined to regularise the appellant in service on the premise that as Ext.P1 had ceased to be in force in the meanwhile, she can continue in service only subject to a further selection. Ext.P3 evidences the said fact. In our considered opinion, the remote possibility of Sri.V.R.Sadasivan cancelling the leave availed by him preparatory to retirement and rejoining duty with the consent of the authority competent to appoint him, having not taken place, as the appellant had qualified in the proficiency test held on 23.7.2011 and was legally empanelled and had also been temporarily appointed, the respondent acted illegally in terminating her appointment by transfer as Typist-Copyist Grade II on the premise that she cannot, in view of the expiry of the panel evidenced by Ext.P1, continue in service and will have to undergo a fresh selection process. Consequently, she was relieved from the post of Typist-Copyist Grade II and W.A.No.1297 of 2016 22 posted back as Higher Grade Office Attendant.
21. The proficiency test which lead to the preparation of Ext.R1(a) panel was held after Ext.P3 proceedings dated 5.9.2014 was issued. As a low grade employee of this court, the appellant would have had in her anxiety to get appointed to a higher post participated in the proficiency test held thereafter. That cannot be in our opinion be taken as a relinquishment of the right which had accrued in her by virtue of her empanelment as per Ext.P1 for appointment by transfer to the post of Typist-Copyist Grade II. Such being the situation, we are of the opinion that merely for the reason that she had failed to qualify in the proficiency test which was held prior to the preparation of Exts.R1(a) and R1(b) lists or for the reason that none of the candidates empanelled in Exts.R1(a) and R1(b) have been joined as parties to the writ petition, the relief prayed for by the appellant cannot be declined. As a clear vacancy of Typist-Copyist Grade II had arisen consequent on Sri.V.R.Sadasivan, Selection Grade Typist-Copyist entering on leave preparatory to retirement on 8.7.2014 and he had not rejoined duty prior to his retirement on 31.8.2014, we are of the considered opinion that the appellant had a right to be regularised in service with effect from 1.9.2014 as Typist- W.A.No.1297 of 2016 23 Copyist Grade II. The mere fortuitous fact that after her temporary appointment by transfer as Typist-Copyist Grade II on 16.7.2014, the panel in which her name was included had ceased to be in force is not in our opinion a reason justifying her non-regularisation in service. The decision taken by the respondent not to regularise her in service cannot in our opinion be sustained in law. Such being the state of affairs, as the appellant was illegally denied regularisation in service, the mere fact that the subsequently selected persons have not been joined as parties or that the subsequent panels prepared have not been subjected to challenge is not in our opinion a reason justifying the dismissal of the writ petition. The cause of action for the instant writ petition arose when the appellant was denied regularisation in service following her temporary appointment after being found suitable for appointment by transfer to the post of Typist-Copyist Grade II. The appellant cannot in our opinion be expected to challenge all the appointments made after she was denied regularisation in service based on the inclusion of her name in Ext.P1. It is relevant in this context to note that four among the candidates who were subsequently selected were also included in Ext.P1 panel. Since the appellant's claim is based on the inclusion of W.A.No.1297 of 2016 24 her name in Ext.P1 panel and none of the persons included in Exts.R1(a) and R1(b) had a right to be appointed in preference to the appellant against the vacancy which arose on 1.9.2014, we are of the opinion that their non-joinder does not vitiate the writ petition. The appellant was in our opinion denied her legitimate right to be regularised in service.
22. There is also another reason which has persuaded us to form the above opinion. Ext.P1, the panel in which the appellant is included states that the names of serial numbers 7 (Smt.Pushpakumari D), 9 (Smt.Gracy K.A.), 11 (Smt.Rathy K.P.), 15 (Smt.Deepa M.M.) and 18 (Smt.Sumathi K.S.) were included in the previous panel which was brought into force as per proceedings dated 7.2.2008. In the penultimate paragraph of Ext.P1 it is stated as follows:
"The names are arranged in the order of interse seniority between the persons who have qualified in the Typing Test held on 23/07/2011 and the members (Serial Nos.7, 9, 11, 15 & 18), remaining in the previous panel which was brought into force as per the High Court Proceedings read (1) above.
The panel will remain in force for a period of 3 years from 29.7.011."
The aforesaid recital discloses that serial Nos.7, 9, 11, 15 and 18 in Ext.P1 were not subjected to the typing test held on W.A.No.1297 of 2016 25 23.7.2011 and that only the other 21 candidates were subjected to the typing test.
23. Serial numbers 7, 9, 11, 15 and 18 in Ext.P1 who were ranked in an earlier panel were included in Ext.P1 panel for the reason that their turn for appointment by transfer as Typist-Copyist Grade II did not arise during the period of validity of that panel which had come into force on 7.2.2008. Their rank was however altered for the reason that ranking is based on the date of entry in service in view of the stipulation in Rule 20(7) above referred to. Serial Nos.7 and 9 in Ext.P1 list were regularly appointed. The next candidate awaiting appointment by transfer as Typist-Copyist Grade II was the appellant. She was in fact appointed by transfer as Typist- Copyist Grade II on 16.7.2014 at a point of time when Ext.P1 was in force, but on a temporary basis. Her claim is that she should have been regularised in that vacancy itself with effect from 1.9.2014. Smt.Deepa M.M., the seniormost among the persons named in Ext.R1(a) list was ranked four places below the appellant in Ext.P1. The last among the persons named in Ext.P1 panel who were regularly appointed by transfer as Typist-Copyist Grade II is Smt.Gracy K.A. The next vacancy ought to have gone to the appellant. It was in fact given to her, W.A.No.1297 of 2016 26 but only on a temporary basis. She was denied regularisation on the specious plea that after her temporary appointment on 16.7.2014, the panel ceased to be valid on 28.7.2014 and the regular vacancy arose thereafter on 1.9.2014. Smt.Rathy K.P., serial No.11 in Ext.P1 panel was temporarily appointed on 19.7.2014 when her turn for appointment arose during the period of validity of Ext.P1. She was exempted from the proficiency test which was held prior to the preparation of Ext.P1 panel as she had passed it earlier when the panel which came into force on 7.2.2008 was prepared. That appointment was consequent on the imposition of the punishment of compulsory retirement on Sri.A.Saly. As stated earlier, when the panel evidenced by Ext.P1 was prepared, five persons who were empanelled in an earlier list but were not appointed for the reason that their turn did not arise during the period of validity of that panel, were once again empanelled without being subjected to another typing test to test their proficiency. However, in the case of the appellant a different yardstick was adopted. Notwithstanding the fact that she had qualified in the proficiency test that was held on 23.7.2011 and was included in Ext.P1 panel and was also temporarily appointed by transfer as Typist Grade II, on the short ground that after her temporary W.A.No.1297 of 2016 27 appointment by transfer as Typist Grade II, Ext.P1 ceased to be in force, she was compelled to undergo a fresh proficiency test which she failed to pass. However, serial Nos.7 and 9 in Ext.P1 panel, were not required to undergo a fresh proficiency test for the purpose of including their names in Ext.P1 panel. They were appointed after their names were included in Ext.P1 panel without once again passing the proficiency test. They had passed the proficiency test which was held in the year 2008 prior to the preparation of the panel which was brought into force as per proceedings dated 7.2.2008. As stated earlier, the appellant had served as Typist Grade II in this court during the period from 16.7.2004 till 28.10.2014. The respondent has no case that her work as Typist Grade II was not efficient or not upto the mark. In such circumstances, we are of the opinion that the mere fact that the appellant did not qualify in the proficiency test held prior to the issuance of Exts.R1(a) and (b) proceedings cannot be held out against her. The only other person appointed from among the persons named in Ext.R1(a) is Sri.Lijumon P.C. He got a right to be appointed only on 29.10.2014 when Ext.R1(a) was issued. The appellant does not claim any vacancy that arose after that date. Her claim is for regularisation against the regular vacancy which arose on W.A.No.1297 of 2016 28 1.9.2014. None of the persons named in Ext.R1(a) had a right to be appointed against that vacancy. The same is the position as regards the persons named in Ext.R1(b). Therefore, they cannot be said to be necessary parties. Even if they had been joined as parties, all that they could have stated is that the appellant cannot claim regularisation for the very same reasons put forward by the respondent in its counter. We therefore find no reason or justification to non suit the appellant on the ground that the writ petition is bad for non-joinder of necessary parties. As regards the proficiency test which the appellant was again subjected to, there is reference in Exts.P4 and P7 representations about that aspect of the matter. It cannot therefore be said that there was willful suppression of a material fact. Having regard to the totality of the facts placed before us, we find no reason to non-suit the appellant on the ground of delay and latches. The appellant had in our opinion a right to be regularised in the post of Typist-Copyist Grade II with effect from 1.9.2014. In such circumstances, we are of the considered opinion that it is not necessary for us to consider the question whether paragraph 19 of the Manual for Disciplinary Proceedings applies to employees of this court and whether the appellant had a right to be considered for W.A.No.1297 of 2016 29 appointment by transfer against the regular vacancy which arose consequent on the imposition of the punishment of compulsory retirement on Sri.A.Saly.
24. Though it was contended before us that Ext.R1(d) would justify the stand taken by the respondent, we find nothing in Ext.R1(d) which militates against the view taken by us. Ext.R1(d) would show that the person appointed as Public Relations Officer in a leave vacancy was appointed on a regular basis only when the leave vacancy became a regular vacancy. In the instant case also, the leave vacancy became a regular vacancy on 1.9.2014. Therefore, there is nothing in Ext.R1(d) which would disentitle the appellant to be regularly appointed by transfer to the post of Typist-Copyist Grade II with effect from 1.9.2014. Learned counsel appearing for the respondent also contended before us that the appellant's appointment as per Ext.P2 proceedings dated 16.7.2014 was under Rule 21 of the Rules. We are afraid, the said contention is plainly untenable. Rule 21(a) comes into operation only when regular method of appointment cannot be resorted to. The appellant was appointed though on a temporary basis after Ext.P1 panel was prepared for appointment by transfer on a regular basis as Typist Grade II. Rule 21(a) can therefore have no application. W.A.No.1297 of 2016 30 Rule 21(a) can apply only when a panel has not been prepared and not when appointments are made from the panel prepared for regular appointment. There is nothing in Rule 21(a) which would disentitle the appellant from being regularised in the post of Typist Grade II with effect from 1.9.2014. We accordingly overrule the said contention as well.
For the reasons stated above, we allow this writ appeal, set aside the impugned judgment, allow the writ petition and declare that the appellant was entitled to be regularised in service as Typist-Copyist Grade II with effect from 1.9.2014. Consequently, we quash Exts.P5, P6 and P8 and direct the respondent to issue appropriate orders within one month from today, appointing the appellant as Typist-Copyist Grade II by transfer on a regular basis with effect from 1.9.2014. Having regard to the fact that the appellant was working in a lower post and was earning salary and allowances, we do not deem it appropriate to direct that she should be paid arrears of salary and allowances applicable to the post of Typist-Copyist Grade II. The appellant will however be entitled to fixation of pay in the category of Typist-Copyist Grade II with effect from 1.9.2014 and to have her seniority in the category of Typist- Copyist Grade II reckoned with effect from 1.9.2014. She will W.A.No.1297 of 2016 31 also be entitled to all other consequential service benefits. The parties shall suffer their respective costs.
Sd/-
P.N.RAVINDRAN JUDGE Sd/-
A.MUHAMED MUSTAQUE JUDGE /true copy/ P.A. To Judge vpv