Kerala High Court
Biju C vs Institute Of Human Resources on 10 June, 2016
Author: P.V.Asha
Bench: P.V.Asha
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE SMT. JUSTICE P.V.ASHA
FRIDAY, THE 10TH DAY OF JUNE 2016/20TH JYAISHTA, 1938
WP(C).No. 17134 of 2011 (N)
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PETITIONER(S):
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BIJU C., AGED 33,
S/O.LATE C.CHATHU, CHEMBANTAVIDA HOUSE,
P.O.KADIRUR, KANNUR DISTRICT-670 642.
BY ADVS.SRI.K.S.MADHUSOODANAN
SRI.T.V.JAYAKUMAR NAMBOODIRI
SRI.THUSHAR NIRMAL SARATHY
SRI.M.M.VINOD KUMAR
SRI.P.K.RAKESH KUMAR
SMT.M.A.RUXANA
RESPONDENT(S):
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INSTITUTE OF HUMAN RESOURCES
DEVELOPMENT (I.H.R.D), PRAJOE TOWERS,
VAZHUTHACAUD, THIRUVANANTHAPURAM-695 014,
REPRESENTED BY ITS DIRECTOR.
BY ADVS. SHRI M.K.CHANDRAMOHAN DAS,SC ,IHRD
SRI.V.A.MOHAMMED, SC, IHRD
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 10-06-2016, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
msv/
WP(C).No. 17134 of 2011 (N)
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APPENDIX
PETITIONER(S)' EXHIBITS:
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EXT.P1: PHOTOCOPY OF THE INTERVIEW MEMO BEARING NO.3/09/H.R.D.
DTD.10.11.2009.
EXT.P2: PHOTOCOPY OF THE RELEVANT PAGE OF RANK LIST DTD.19.3.2010.
EXT.P3: PHOTOCOPY OF THE REPLY DTD.5.4.2011 BEARING
NO.EB3/4267/2011/HRD.
EXT.P4: PHOTOCOPY OF THE PHOTOCOPY OF THE LIST WITH FORWARDING
LETTER DTD.23.4.2011 BEARING NO.EB3/4331/2011/HRD.
EXT.P5: PHOTOCOPY OF THE JUDGMENT IN WP(C) 11418/04 DTD.10.3.2008
OF THE HON'BLE HIGH COURT.
EXT.P6: PHOTOCOPY OF THE JUDGMENT IN WP(C) NO.964/2010
DTD.9.9.2010 OF THE HON'BLE HIGH COURT.
EXT.P7: PHOTOCOPY OF THE JUDGMENT IN WA.1613/2010 DTD.15.3.2011 OF
THE HON'BLE HIGH COURT.
EXT.P8: PHOTOCOPY OF THE APPLICATION DTD.26.6.2014 UNDER RIGHT TO
INFORMATION ACT.
EXT.P9: PHOTOCOPY OF THE REPLY UNDER RIGHT TO INFORMATION ACT
DTD.25.8.2014.
RESPONDENT(S)' EXHIBITS:
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EXT.R1(a): TRUE COPY OF THE NOTIFICATION NO.RECT/03/09/HRD OF THE
INSTITUTE.
ANNEXURE R1(b): TRUE COPY OF THE LIST OF NJD (NON JO8INING DUTY)
CANDIDATES FOR APPOINTMENT TO THE POST OF LAST
GRADE SERVANTS UNDER IHRD.
ANNEXURE R1(c): TRUE COPY OF THE ROTATION CHART.
ANNEXURE R1(c): TRUE COPY OF THE DETAILS OF APPOINTMENTS MADE FROM
THE RANK LIST.
ANNEXURE R1(d): TRUE COPY OF THE APPOINTEES INCLUDED IN THE RANK
LIST AS LAST GRADE SERVANTS.
//TRUE COPY//
P.S.TO JUDGE
Msv/
P.V.ASHA J.
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W.P.(C) No.17134 of 2011
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Dated this the 10th day of June, 2016
J U D G M E N T
The petitioner is a candidate included in the rank list for appointment as a last grade servant in the Institute of Human Resource Development ('IHRD', for short). He is aggrieved by the refusal to appoint him, despite the fact that there are NJD vacancies against which he is eligible for appointment.
2. The IHRD issued a notification dated 31.01.2009 inviting application for selection and appointment to the post of last grade servants as against 145 vacancies. Thereafter, Ext.P2 rank list was published on 19.03.2010. The appointments in IHRD are made following the principles of communal reservation as contained in Rules 14 to 17 of the Kerala State and Subordinate Services Rules (hereinafter referred to as the "KS&SSR"). The case of the petitioner is that 145 candidates were appointed from the rank list immediately after the publication of the W.P.(C) No.17134 of 2011 2 rank list. Out of the 145, 13 candidates did not join duty. On the basis of the information collected under the Right to Information Act, as per Ext.P2, petitioner claims that 3 out of the 13 candidates who did not join duty, belong to Other Backward Class (OBC). They are Rank No.20, Shri. Ajayakumar, Rank No.88, Smt.Sasi Anchankudi and Rank No.128, Shri Sunil C.K., belong to OBC. Petitioner is rank No.160 and he belongs to OBC. Therefore petitioner claims appointment against one of those vacancies. The case of the petitioner is that the last candidate appointed from the OBC was Rank No.128. The petitioner is the 2nd candidate belonging to OBC, belong rank No.128, rank No.130 being the 1st candidate. It is stated that even though Rank No.133 is shown as OBC - Hindu Nadar, there is a separate turn for Hindu Nadar in the 100 point roaster given in Annexure I under Rule 15 of the KS&SSR, according to which Hindu Nadar is to be appointed against the 38th turn and SIUC Nadar is allotted turn No.60.
3. Respondents filed counter affidavit producing Ext.R1(b) list of candidates to be appointed against the W.P.(C) No.17134 of 2011 3 NJD vacancies of OBC. In Ext.R1(b) as against the OBC turn MRI-10 OBC, is set apart for Smt.Sandhya S. with rank No.335 belonging to OBC - Hindu Nadar with the remarks "adjusted against the turn 60 Hindu Nadar. Similarly, MRI-90 OBC is set apart for Smt. R.S. Beena with rank No.386 belonging to SIUC - Nadar with the remarks"
adjusted against the turn 80 SIUC Nadar and against MRII- 40 OBC, Smt. Anila K.S, Rank No.130 belonging to OBC is proposed to be appointed. There is only one candidate ranked above the petitioner, who belongs to OBC at Rank No.130, Smt.Anila K.S. Petitioner is the next candidate. According to the petitioner the respondents have set apart the vacancies of OBC to appoint Hindu Nadar & SIUC - Nadar illegally. The respondents are not making appointment only to see that the persons who were engaged on provisional basis on daily wages are allowed to continue and ultimately for regularising them. The petitioner relies on Ext.P5 judgment dated 10.03.2008 in W.P(C) No.11418 of 2004 by which a Division Bench of this Court confirmed the interim order passed on W.P.(C) No.17134 of 2011 4 15.12.2004 directing the respondents to strictly follow the recruitment policy and rules while making appointments. Referring to Ext.P6 judgment dated 09.09.2010 in W.P(C) No.964 of 2010 and in a batch of cases wherein the selection to the post of last grade servants was under
challenge. The petitioner points out that along with the batch of cases, this Court considered the cases of persons who claimed regularisation of services as last grade servants who challenged the selection. In paragraph 5 of the judgment this Court observed that in the light of the Apex Court judgment in Secretary, State of Karnataka v. Umadevi(3) ([2006] 4 SCC 1), the claim for regularisation cannot be accepted in view of the earlier judgments of this Court as well. However, in Ext.P7 judgment dated 15.03.2011 in W.A. No.1613 of 2010 when the issue relating to regularisation under the respondents came up for consideration, the learned Standing Counsel had submitted that the respondents are prepared to consider the case of the appellants therein as done in the case of several others who are allowed to continue on W.P.(C) No.17134 of 2011 5 ad hoc basis on a consolidated monthly pay of Rs.6,000/- and the learned counsel for the appellants accepted the above proposal. However, this Court did not go into those questions and disposed of the Writ Appeal as follows: "6. We make it clear that we have not considered the merit or demerit of any individual case before us. It will be open to the Institute to take an appropriate decision in the matter, of course applying the same yard stick that has been adopted in the case of other similarly placed employees who have been given the benefit of absorption/regularization.
7. The appellants and the writ petitioner shall submit their individual representations before the Director within seven days from today in which event the Director shall afford an opportunity of hearing to the parties and take a decision as indicated above, as expeditiously as possible, at any rate, within two weeks from the date of receipt of a copy of the representation."
4. It is under these circumstances the petitioner submits that the appointments are not made even against the NJD vacancies and petitioner was not even included in the list of candidates to be appointed against those NJD vacancies contrary to the turn provided in the 100 point W.P.(C) No.17134 of 2011 6 roaster as per the Annexure.
5. The respondents had in its counter affidavit filed on 26.09.2011 stated in paragraph 3 as follows:
"145 number of candidates were appointed from the rank list out of which 13 numbers of candidates have not joined duty. Now steps are being taken to fill up the non-joining duty vacancies".
6. In paragraph 7 it is stated as follows:
"7. As per the directions of this Hon'ble Court Judgment, 61 numbers of former daily wages employees were heard by the Director, IHRD and based on the representations received from them they were engaged on a monthly consolidated pay of Rs.6000/-. They were engaged only on temporary basis and not given any appointment on regular basis. Further steps are being taken by IHRD to fill up the 13 numbers of Non-joining duty vacancies from the Rank List. As such, the allegations of the petitioner that effort are being made by IHRD to re-engage/regularize daily wages labourers working for 2 to 5 years there utilizing the non-joining duty vacancies is ill-founded and unmerited."
7. Thereafter statements were filed on 12.03.2013 producing the list of candidates for appointment to the W.P.(C) No.17134 of 2011 7 post of last grade servant as Annexure R1(b). Referring to that, it was stated that petitioner whose rank No.161 does not come within the zone from which appointments against the 13 NJD vacancies can be made. It was stated in Ext.R1(b) list that 2 candidates; 1 belonging to OBC - Hindu Nadar and the other belonging to SIUC Nadar were adjusted against MRI-10 and MRI-90.
8. The petitioner filed a reply affidavit stating the above fact and pointing out that as against the 1st NJD vacancy Smt.Anila who was Rank No.130, and the petitioner who was Rank No.160 where the two candidates next in the list who were to be appointed against the NJD vacancies.
9. Thereafter the 5th respondent filed an additional statement in March, 2013 again stating that petitioner who is Rank No.160 cannot be adjusted against the NJD vacancies of OBC again saying that Smt.Sandhya belonging to Hindu Nadar and Smt. Beena belonging to SIUC - Nadar were to be adjusted against the 10th and 90th turn of OBC. Another statement was filed on 25.06.2013 W.P.(C) No.17134 of 2011 8 producing the details of the appointments made from the rank list. It was stated that as per the revised staff vacancy reported by the Committee constituted by the Government, the sanctioned strength of the last grade servant on the basis of the work load shall be 134 and the physical strength of the employees was 201 and therefore no more appointments were permissible. It was also stated that a vigilance enquiry in respect of drawing up of the rank list was going on and therefore steps could not be taken for appointment subsequent to the 1st permanent appointment. The list of candidates who were already appointed from Ext.P1 rank list produced as Ext.R1(c) which indicated the 13 NJD vacancies. Petitioner again filed an additional reply affidavit asserting his claim for appointment against the OBC turn. It was also pointed out that Smt.Anila who was rank No.130 was liable to appointed against MRI-10 and petitioner being the next candidate should be appointed against the second vacancy of OBC.
10. Yet another counter affidavit was filed on W.P.(C) No.17134 of 2011 9 07.11.2013 wherein the respondents stated that Government had initiated an enquiry by the Vigilance and Anti Corruption Bureau on matters relating to the conduct of the written test, interview, selection and appointment of last grade servant as per notification dated 18.09.2010 and therefore IHRD was not in a position to effect appointments of last grade servant against NJD vacancy. It is further stated that Government had constituted a Committee for revision of staff pattern and Special Rules in IHRD and Committee has submitted a report before the Government and the number of last grade servants could be assessed only after finalisation of the report by the Government. It was also stated that several of the institutions under it were closed down being non-viable.
11. The above statement was filed in view of the fact that this Court had passed an interim order directing the respondents to fill up the NJD vacancies. The respondent had filed Writ Appeal No.1400 of 2013 as against that interim order which was ultimately disposed of observing that the appellant can move for early W.P.(C) No.17134 of 2011 10 hearing. As it was pointed out that Smt.Sandhya and Smt.Beena belonging to Hindu - Nadar and SIUC Nadar, were candidates to be appointed against the NJD vacancies, the petitioner sought information regarding their address in order to implead them in the party array. By Ext.P9 letter dated 25.08.2004, the Public Information Officer of the respondents informed that Smt.Sandhya and Beena were not given appointments so far. It was stated in Ext.P9 that further proceedings for appointment could be given only after the completion of the vigilance enquiry in respect of appointment in IHRD made during the period from 2006 onwards. The respondent had again filed a statement on 08.03.2016 according to which there are only 139 posts of last grade servants with effect from 14.04.2014 consequent to G.O(Ms.) No.676/14/H.Edn dated 14.02.2014 by which Government approved the revised staff pattern of IHRD. Therefore it was stated that the teachers were already rendered therein excess. There was dearth of 18 posts in order to accommodate them. It was also stated that consequent on retirement and W.P.(C) No.17134 of 2011 11 resignation of personnel in service, 14 personnel in excess of sanctioned post have subsequently been accommodated against the sanctioned post. It was further stated that "as such there are no temporary hands working against sanctioned post under under the category of last grade servants in IHRD as on date. But there are 95 persons working in different institutions under the IHRD on monthly consolidated payment as last grade servant and not they are not attached to any sanctioned posts.
12. Heard the learned counsel for the petitioner and the learned Standing Counsel for the respondents.
13. It is seen that this Court had passed an interim order on 27.06.2012 directing the respondent to fill up the non-joining duty vacancies provisionally subject to further orders in this writ petition, as expeditiously as possible, at any rate, within two weeks from the date of receipt of a copy of the order. As against that interim order, the respondents filed Writ Appeal No.1400 of 2012 and that interim order was stayed by the Division Bench and finally W.P.(C) No.17134 of 2011 12 the Writ Appeal was disposed of on 15.07.2013 reserving the right of the parties to raise all contentions.
14. Therefore, it can be seen that as on 15.07.2013, the stay granted against the interim order in the Writ Appeal was not in force. The revised staff pattern came into force, according to the respondent, only with effect from 14.02.2014. It is stated that the total number of posts sanctioned is only 139 and employees are in excess. However, it is stated that there are 61 persons continuing on consolidated wages of Rs.6000/-. The number of such persons shown in the additional statement came to 85 while the cases of 20 others were under consideration for engagement.
15. From the consideration of rival contentions it can be seen that the contention of the respondent that first two vacancies of OBC were to be earmarked for Hindu-Nadar and SIUC-Nadar cannot be accepted going by the terms given in the 100 point roaster given in the Annexure and prepared under Rule 15 and as much as Hindu-Nadar and SIUC-Nadar are separately given turns at W.P.(C) No.17134 of 2011 13 38 and 60 respectively. Regarding the claim of the petitioner for appointment, it is seen that at the time when the petitioner approached this Court as well as until the year 2014, posts were very much available for accommodating him. In fact the respondent had filled up 145 vacancies. Petitioner's claim is against one of the non-joining duty vacancies, which was liable to be filled up immediately. In case that vacancy was filled up in time in accordance with Rules, petitioner would have got appointment at least in 2013 itself. Now that it is stated that the candidates already appointed are in excess, the interest of the petitioner can be protected by directing the respondent to appoint the petitioner notionally as last grade servant, so that he will be eligible for future appointment as provided under Rule 7 of the KS&SSR in her capacity.
16. Therefore there shall be a direction to the respondent IHRD to appoint the petitioner as a last grade servant notionally. Respondents will be free to discharge him as and when required, enabling the petitioner to W.P.(C) No.17134 of 2011 14 enjoy the benefit of discharged/retrenched employees for the purpose of re-appointment, so as to enable appointment against future vacancy. In the meanwhile, since the respondent is engaging provisional hands on ad hoc basis and on consolidated wages of Rs.6000/-, despite the non-availability of posts, the respondent shall engage the petitioner also along with them in one of the institutes under it. As and when a regular vacancy arises the petitioner shall be absorbed against the same, subject to any person having any superior claim over him under Rule 7 of KS&SSR. The above proceedings shall be completed within a period of one month from the date of receipt of copy of the judgment.
This writ petition is allowed accordingly.
Sd/-
P.V.ASHA, JUDGE.
AS/16/06/16