Kerala High Court
Lency Michael I.M vs State Of Kerala on 6 February, 2012
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE SMT. JUSTICE P.V.ASHA
WEDNESDAY, THE 4TH DAY OF JANUARY 2017/14TH POUSHA, 1938
WP(C).No. 16157 of 2015 (T)
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PETITIONER(S)/PETITIONERS:
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1. LENCY MICHAEL I.M, AGED 35,
W/O.LATE JOFRY T FRANCIS, LABORATORY ASSISTANT,
PHYSICS DEPARTMENT, ST ALBERT'S COLLEGE,
ERNAKULAM 682018(R/A.THOTTUNGAL HOUSE,
VYLOPPILLI LANE,AZAD ROAD, KALOOR, KOCHI 682017
2. SIMON D'CRUZ, AGED 34,
S/O.JOSEPH D'CRUZ, LABORATORY ASSISTANT,
CHEMISTRY DEPARTMENT,ST ALBERTS COLLEGE,
ERNAKULAM 682018, R/A.KANISSERY HOUSE, CUSAT P O,
SOUTH KALAMASSERY, KOCHI 682022
3. ANTONY JOSE PETER, AGED 37
S/O.C J PETER, LABORATORY ASSISTANT, ZOOLOGY DEPARTMENT,
ST ALBERTS COLLEGE, ERNAKULAM 682018
R/A.CHEMMAYATH HOUSE, OACHANTHURUTHU P O,
ERNAKUALM PIN 682508
4. LANSON XAVIER, AGED25
S/O.JOSEY K X,
LABORATORY ASSISTANT, CHEMISTRY DEPARTMENT,
ST ALBERTS COLLEGE, ERNAKULAM 682018,
R/A.KOTTIYATH HOUSE,AYYAMPILLI KAVU ROAD, EROOR P O,
THRIPPUNITHURA
5. VINU FRANCIS, AGED 30,
S/O.FRANCIS K L
LIBRARY ASSISTANT ,ST.ALBERTS COLLEGE,
ERNAKULAM 682018 R/A.KUTHUKATT HOUSE,
PERANDOOR TEMPLE ROAD,
PANAKKAPADOM LANE, ELAMAKKARA, KOCHI 682026
BY ADVS.SRI.BENNY GERVACIS
SMT.K.MAJEEDA HAMEED
SRI.T.B.HOOD
SMT.M.ISHA
SRI.AMAL KASHA
RESPONDENT(S)/RESPONDENTS:
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1. STATE OF KERALA
REPRESENTED BY SECRETARY TO GOVERNMENT,
HIGHER EDUCATION(D)DEPARTMENT,
SECRETARIAT,THIRUVANANTHAPURAM-695001
WPC 16157/2015
2. THE DIRECTOR OF COLLEGIATE EDUCATION,
DIRECTORATE OF COLLEGIATE EDUCATION,
VIKAS BHAVAN, TRIVANDRUM 695033
3. THE DEPUY DIRECTOR,
COLLEGIATE EDUCATION, ERNAKULAM 682011
4. MAHATMA GANDHI UNIVERSITY
REPRESENTED BY THE REGISTRAR,
MAHATMA GANDHI UNIVERSITY P O, ATHIRAMPUZHA,
KOTTAYAM
5. THE MANAGER
ST ALBERTS COLLEGE,
REPRESENTED BY THE PRINCIPAL, ERNAKULAM,
KOCHI 682018
6. ST.ALBERT'S COLLEGE,
REPRESENTED BY THE PRINCIPAL,
ERNAKULAM, KOCHI-682018
R1 BY ADV.T.RAJASEKHARAN NAIR, GOVERNMENT PLEADER
R4 BY ADV. SRI.VARUGHESE M.EASO, SC, M.G.UNIVERSITY
R5 BY ADV. SRI.K.SANDESH RAJA
R4 BY ADV. SRI.ASOK M. CHERIAN, SC, M.G. UNIVERSITY
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
04-01-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
RKC
WP(C).No. 16157 of 2015 (T)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1:PHOTOCOPY OF THE GOVERNMENT ORDER GO(RT)
NO.257/2012/HEDN,DATED 6.2.2012
EXHIBIT P2: PHOTO COPY OF THE MINUTES OF THE MEETING OF THE SLECTION
COMMITTEE FOR SELECTION OF CANDIDATES FOR THE POST OF LABORATORY /
LIBRARY ASSISTANTS IN THE 6TH RESPONDENT COLLEGE HELD ON 4.8.2012
EXHIBIT P3:PHOTO COPY OF THE APPOINTMENT ORDERS DATED 8.8.2012
APPOINTING PETITIONERS 1 TO 4 ALONG WITH THE APPOINTMENT ORDER OF THE
5TH PETITIONER DATED 1.12.2012
EXHIBIT P4:PHOTOCOPY OF THE COMMUNICATION DATED 10.9.2012 BY THE 5TH
RESPONDENT FORWARDING THE DETAILS OF APPOINTMENT OF THE PETITIONERS
AND REQUESTING THE APPROVAL OF THEIR APPOINTMENTS
EXHIBIT P5:PHOTO COPY OF THE COMMUNICAION BY THE 1ST RESPONDENT DATED
29.4.2013
EXHIBIT P6: PHOTO COPY OF THE COMMUNICATION RECEIVED FROM THE KERALA
PUBLIC SERVICE COMMISSION DATED 24.2.2012
EXHIBIT P7: PHOTOCOPY OF THE REPRESENTATION FILED BY THE PETITIONERS
EXHIBIT P8: PHOTO COPY OF THE ORDER DATED 5.5.2014 ISSUED BY THE 2ND
RESPONDENT
EXHIBIT P9:PHOTOCOPY OF THE PETITION DATED 9.7.2014 SUBMITTED BY THE
5TH RESPONDENT
EXHIBIT P10: PHOTOCOPY OF THE COMMUNICATION BY THE 1ST RESPONDENT
DATED 19.7.2014
EXHIBIT P11: PHOTOCOPY OF THE COMMUNICATION BY THE 2ND RESPONDENT
DATED 26.3.2015
EXHIBIT P12: PHOTO COPY OF THE REPORT BY THE 2ND RESPONDENT DATED
14.1.2015
EXHIBIT P13: PHOTO COPY OF THE ORDER DATED 22.1.2011 ISSUED BY THE
2ND RESPONDENT
EXHIBIT P14: PHOTOCOPY OF THE COMMUNICATION BY TH 1ST RESPONDENT
DATED 14.3.2011
EXHIBIT P15:PHOTOCOPY OF THE ORDER OF APPROVAL DATED 22.6.2011 ISSUED
BY THE 2ND RESPONDENT GRANTING APPROVAL OF APPOINTMENT TO UNQUALIFIED
LABORATORY ASSISTANTS IN THE SREE SANKARA COLLEGE, KALADY WITH EFFECT
FROM THE DATE OF INITIAL APPOINTMENT
EXHIBIT P16: PHOTO COPY OF THE ORDER DATED 7.10.2014 ISSUED BY THE
1ST RESPONDENT
EXHIBIT P17: COPY OF THE LIST OF NON-TEACHING STAFF IN R6 COLLEGE AS
ON 1.9.2011
RESPONDENT(S)' EXHIBITS: NIL
RKC
TRUE COPY
PA TO JUDGE
P.V.ASHA, J.
W.P.(C) No.16157 of 2015
Dated this the 4th day of January, 2017
JUDGMENT
Petitioners are aggrieved by the denial of approval with effect from the date of their appointments and by the down grading of their posts as Last Grade Servants.
2. All the petitioners were appointed as Lab Assistants/Library Assistants in St.Alberts College, Ernakulam by direct recruitment. Government had by Ext.P1 order dated 6.2.2012, conveyed concurrence for filling up five posts of Lab Assistants/Library Assistants in St.Alberts College, Ernakulam. Thereafter the College issued a notification inviting applications for appointment to the post of Lab/Library Assistants and prepared a rank list with 19 candidates, from which petitioners were appointed. In Ext.P2 proceedings of the selection committee, it was stated that since there were no candidates who have passed Attender's test conducted by Kerala Public Service Commission (KPSC for short), candidates selected as Lab/Library Assistant would be treated as last grade staff for appointment to the post of Lab/Library Assistant and they would be promoted to Lab/Library Assistant post as and W.P.(C) No.16157 of 2015 2 when they passed the Attender's test conducted by the KPSC. Accordingly orders of appointment were issued appointing petitioners 1 to 4 as per Ext.P3 series as Lab Assistant on probation in the lower scale of pay of 8500-13210/- till they qualify the Attender's test conducted by the KPSC and was posted as Lab Assistants. It was further stated that they would be eligible for the pay of Lab Assistant as and when they get qualified in the Attender's test. The 5th petitioner was appointed as Library Assistant under similar conditions.
3. The Manager thereafter forwarded proposal for approval of appointment of petitioners as per Ext.P4 letter. In Ext.P5 letter, the Additional Chief Secretary to Government, on 29.4.2013 informed that the appointment of the petitioners cannot be approved in the post of Lab/Library Assistant, since they did not have the qualification namely the eligibility test conducted by the KPSC. It was therefore directed that six posts of Lab Assistants in the College may be down graded to the post of Last Grade Servants and they may be granted approval to the post of Last Grade Servants with direction to disburse them salary admissible to Last Grade Servants. Simultaneously it was ordered that the post of Lab Assistant would cease to exist and appointment of Lab Assistants should be done only with the prior concurrence from Government after posts are sanctioned. Thereafter, even though their W.P.(C) No.16157 of 2015 3 appointments were on 8.8.2012, the 2nd respondent approved the appointment of petitioners as per Ext.P8 order on 5.5.2014, only with effect from 29.4.2013, after down grading their posts as Last Grade Servants.
4. Petitioners are challenging Exts.P5 and P8 orders. According to them there is no reason for denying approval with effect from the date of appointment. It is pointed out that as per Part C, Statute 44 of the M.G.University Statutes, 1997, which governs the conditions of service of members of non teaching staff, post of Library Assistant/Lab Assistant comes under category No.12. The minimum qualification for appointment to the post by direct recruitment is SSLC or equivalent with a pass in Attender's test conducted by the KPSC. The 2nd proviso below that provides that those who are appointed under direct recruitment for want of qualified hands for promotion from among the Last Grade Servants shall continue as such subject to the condition that they pass the eligibility test which the KPSC may conduct in accordance with the orders as the Government may issue.
5. It is pointed out that the Attender's test contemplated in the aforesaid provision is not being conducted by the KPSC regularly. Petitioners have produced Ext.P6 letter dated 24.2.2011 obtained under the Right to Information Act in which the State Public Information Officer informed that Attender's test is one W.P.(C) No.16157 of 2015 4 prescribed for the in-service candidates and there is no fixed time for conducting the test. In the letter dated 24.2.2011 it was stated that tests were conducted on 13.4.2005 and thereafter on 13.5.2010. Petitioners have in paragraph 7 of the writ petition pointed out that they have already submitted applications for participating in the eligibility test/Attender's test immediately after entering service when the KPSC had notified the same on 9.7.2013.
6. Petitioners also relied on Ext.P14 letter dated 14.3.2011 whereby Government accorded sanction for approving the appointments of three Lab Assistants appointed on 23.6.2010 in Sree Sankara College, Kalady, on condition that they should pass the Lab Attender's test conducted by KPSC within three chances, failing which they would be liable to refund the salary paid to them. It was further ordered that till such time they acquire that qualification they will be paid salary admissible for the post of Last Grade Servants. This writ petition has been filed praying the following reliefs:
a. A writ of mandamus or other appropriate writ, direction or order directing the 1st respondent is issue orders directing approval of appointment of petitioners as Laboratory/Library Assistants in the 6th respondent College with effect from their date of appointment i.e. 8.8.2012 b. A writ of certiorari or other appropriate writ, direction or order setting aside Exts.p5 & P8 issued by the 1st and 2nd respondents to the extent that the appointment of the petitioners to the post of Laboratory/Library Assistants is approved down grading the post to that of last grade employees with effect from 29.4.2013.
c. A writ of mandamus or other appropriate writ, direction or order directing that the petitioners are entitled to the benefits W.P.(C) No.16157 of 2015 5 as extended to the Laboratory Assistants in Sree Sankara college, Kalady as per Exts.P14 and P15 order.
7. A statement is filed on behalf of the 1st respondent stating that petitioners' appointment cannot be approved, since they did not have the requisite qualification. According to the Government, direct appointments can be made only if the applicants are fully qualified as per the University Statutes. The 1st respondent states the difficulties caused to the Government on account of inclusion of unqualified hands in the rank list of Lab/Library Assistants and states that the Government have taken steps to approve the appointment of Lab Assistants on condition that they should pass the test within three consecutive chances and till then they would be paid the salary of Last Grade Servants as done as per Ext.P14. According to the Government, management have appointed petitioners on 8.8.2012 and 1.12.2012 from the rank list for Lab/Library Assistants, on the basis of the interview conducted for appointment to that post. Since the posts have been downgraded with effect from 29.4.2013, it is stated that the petitioners were granted approval with effect from 29.4.2013 as Last Grade Servants, in order to avoid cancellation of their appointment taking a lenient view.
8. Heard learned counsel for the petitioners and the learned Government Pleader.
W.P.(C) No.16157 of 2015 6
9. The respondents have no explanation for not approving the appointment of petitioners with effect from their date of appointment, even while admitting their appointments from 8.8.2012 and 12.12.2012. Ext.P14 would show that the Government have in the case of similarly situated persons, accorded sanction for approval of appointment of Lab Assistants after granting them three consecutive chances for appearing in the eligibility test allowing them to continue as Last Grade Servants till they acquire qualification. While stating that a lenient view was adopted in the case of the petitioners, Government did not state why the view adopted in the case of Lab Assistants of Sreesankara College was not extended to the petitioners.
10. It is common case which cannot be disputed that the KPSC does not conduct the eligibility test/Attender's test regularly, as can be seen from the letter received from the State Information Officer itself. It is a further fact that the eligibility test is confined to in-service hands. In other words a candidate from open market is not eligible to appear in the eligibility test/Attenders' test. Petitioners have stated that they have applied for appearing in the test conducted by the KPSC immediately after joining duty in the post. At any rate, applications were invited only once that was in 2013. In the statement, Government have stated that it is granting three consecutive chances to the directly recruited hands for W.P.(C) No.16157 of 2015 7 acquiring the qualification. Under the above circumstances, down grading of the posts of Lab Assistants/Library Assistants against which petitioners were appointed to that of Last Grade Servants and denial of approval of their appointment in the post of Lab Assistant/Library Assistant is illegal. There is no reason for discrimination towards petitioners. It is only fair, just and proper that the Government adopts a uniform course of action in the case of the approval of Lab Assistants/Library Assistants, and to issue orders in the case of petitioners as done in Ext.P14.
11. There is no reason why the petitioners' appointment should not be approved in the scale of pay of Last Grade Servants with effect from the date of their appointment when Government in their statement also admits that they were appointed with effect from August 2012 and December 2012 respectively. There is no reason for postponing the date of approval till 29.4.2013 and denying them salary attached/admissible to the post.
12. In the above circumstances, the orders Exts.P5 and P8 to the extent it deviates from the course adopted in Ext.P14 order and downgraded their posts and denies approval with effect from the date of appointment are quashed.
13. There shall be a direction to respondents 1 to 3 to reconsider the case of petitioners and to approve their appointments with effect from the date of their appointments, as W.P.(C) No.16157 of 2015 8 done in Ext.P14 allowing them three consecutive chances to appear in the Lab Attenders' test conducted by the KPSC and to allow them to continue on payment of salary as admissible to the Last Grade Servants till they acquire qualification and to pay them salary with effect from the date of their respective appointments.
Under the above circumstances, appropriate steps as directed above shall be taken within a period of four months. Orders Exts.P5 and P8 will stand modified to the above extent. Respondents will be free to fix the very same conditions as mentioned in Ext.P14 in the case of the petitioners.
Sd/-
P.V.ASHA JUDGE rkc