Kerala High Court
Ramesh Babu C.T vs State Of Kerala on 26 September, 2019
Author: P.V.Asha
Bench: P.V.Asha
W.P(c).No.4870/2016-G 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE SMT. JUSTICE P.V.ASHA
THURSDAY, THE 26TH DAY OF SEPTEMBER 2019 / 4TH ASWINA, 1941
WP(C).No.4870 OF 2016(G)
PETITIONER:
RAMESH BABU C.T.
AGED 45 YEARS
S/O.M.P.VASUDEVAN, ASSISTANT TRAINEE (SELECTION
GRADE CONFIDENTIAL ASSISTANT), KERALA LEGISLATURE
SECRETARIAT, LEGISLATURE COMPLEX,
THIRUVANANTHAPURAM-695033, RESIDING AT AMRUTHAM,
PAVACHAKUZHY, PERUKAVU P.O.,
THIRUVANANTHAPURAM-695573.
BY ADVS.
SRI.P.NANDAKUMAR
SRI.S.ANEESH
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE SECRETARY, KERALA LEGISLATURE
SECRETARIAT, LEGISLATURE COMPLEX,
THIRUVANANTHAPURAM-695033.
2 THE SECRETARY
KERALA LEGISLATURE SECRETARIAT, LEGISLATURE
COMPLEX, THIRUVANANTHAPURAM-695033.
3 SMT.PREETHA.K
SECTION OFFICER, KERALA LEGISLATURE SECRETARIAT,
LEGISLATURE COMPLEX, THIRUVANANTHAPURAM-695033.
R1 BY GOVERNMENT PLEADER SRI.SUNIL KUMAR KURIAKOSE
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
26.09.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P(c).No.4870/2016-G 2
P.V.ASHA, J.
--------------------------
W.P(C).No.4870 of 2016-G
-------------------------------------------
Dated this the 26th day of September, 2019
JUDGMENT
The petitioner, who is working as Selection Grade Confidential Assistant in the Kerala Legislative Secretariat, is aggrieved by the delay in appointment as Section Officer.
2. The question arising in this case relates to appointment to the post of Section Officer in the Legislature Secretariat which is governed by the Kerala Legislature Secretariat (Recruitment and Conditions of Service) Rules, 1979. Originally the rules were issued as per Ext.P1 notification dated 5.9.1992. The feeder category to the post of Section Officer are : (1) Senior Grade Assistant or in the absence of Senior Grade Assistant, Assistant Gr.I, (2) Typist and (3) Confidential Assistant. As per the note given in Ext.P1 order dated 5.9.1992, it was provided as follows:
"Note:-- Appointment to the post of Section Officer, Legislature Secretariat from among the categories of Typists (including Office Superintendents), Confidential Assistants and Senior Grade Assistants (including Assistant Grade I in the Kerala Legislature Secretariat Service will be made in the ratio 1:1:15 respectively. The ratio will be applied in a block of 17 vacancies of Section Officers. When appointments made to the post of Section Officer since 1.7.1992 are regulated based on the revised procedure the ratio will be applied as a continuation of the old ratio. While applying the ratio, even W.P(c).No.4870/2016-G 3 if a candidate belonging to the category of Typist/Confidential Assistant is not eligible to be appointed as Section Officer when the turn for that category arises, that vacancy will not be lost by that category and given to the Assistant, but the category will retain its claim to be appointed agianst one of the 17 vacancies in case eligible candidate becomes available before appointment is made to all the 17 vacancies. A Typist/Confidential Assistant will not be appointed as Section Officer in preference to an Assistant who has the next chance of appointment as Section Officer and whose total length of service is equal to or greater than that of the Typist/Confidential Assistant. The post of Section Officer, Legislature Secretariat will be a selection post and appointment thereto, will be by selection by the Departmental Promotion Committee."
Another note was also provided below the category 3 to the following effect:-
Note (1): Confidential Assistants and Typists (including those working as Office Superintendents) having the prescribed qualification will be posted for training as Assistant for a minimum period of one year, if they are likely to be appointed as Section Officer within a period of five years. Thereafter they will continue to work as Assistant till they are appointed as Section Officers."
By Ext.P2 there was slight modification to Ext.P1, which reads as follows:
"7. In the above circumstances, in partial modification of the Government Order read as fourth paper above, the Speaker, Kerala Legislative Assembly in exercise of the powers conferred by rule 4 of the Kerala Legislature Secretariat (Recruitment and Conditions of Service) Rules, 1979, read with rule 8 and 11 thereof hereby orders that a Typist/Confidential Assistant will not be appointed as Section Officer, Legislature Secretariat in preference to an Assistant who has the next chance of appointment as Section Officer and whose age or total length of service is equal to or greater than that of the Typist/Confidential Assistant."
Subsequently, in the year 2007 there was another amendment, relevant portion of which reads as follows:
"3. The existing practice of by transfer appointment to the post of Section Officer from among the categories of Typists and Confidential Assistants who entered in service in Legislature Secretariat on or after 25.03.2006 shall be dispensed with.
4. The Typists and Confidential Assistants who were appointed and are being appointed in Legislature Secretariat on or after 25.03.2006 will be eligible for conversion as Assistant in the entry cadre." Therefore, the ratio of 1:1:15 for promotion would be applicable only for the Typists and Confidential Assistants, who entered service on or before 25.3.2006. W.P(c).No.4870/2016-G 4
3. The petitioner entered service on 09.02.2001 as Confidential Assistant Gr.II. The petitioner was posted as Assistant Trainee w.e.f 1.11.2012 as per Ext.P4 order dated 30.10.2012 and as per Ext.P5 order dated 23.12.2013 he was declared to have completed his training successfully. It is stated that a vacancy of Section Officer in the turn of Confidential Assistant arose on 1.12.2012. Ext.P6 would show that the vacancy of Section Officer in the turn for Confidential Assistant arose on 1.12.12. Since there was no CA who was eligible for promotion in the block of 17 vacancies, it was given to the Assistants. Similarly, the vacancy which arose in the turn of CA on 1.11.2013 was also given to Assistant since there was no eligible Confidential Assistant in the 2nd block of 17 vacancies shown in Ext P6; the 3rd respondent who was an Assistant was appointed against the vacancy of Section Officer which arose on 01.11.2013, as per Ext P7 order. Though the petitioner submitted objection against her appointment and requested to promote him in her place, the same was rejected as per Ext.P11 order stating that he cannot be granted promotion superseding Sri T.P.Abdul Majeed, his immediate senior. It was stated that there is no provision for granting promotion to the post of Section Officer within 5 years of the completion of training.
4. In this Writ Petition, the petitioner challenges the orders Exts.P7 and P11 and is claiming promotion as Section Officer with effect from 01.11.2013. The petitioner points out that he is not getting promotion since his immediate senior Sri Abdul Majeed is not getting promotion since there are Assistants who are either having age above him or having equal or more length of service, W.P(c).No.4870/2016-G 5 available for promotion.
5. Sri. P.Nandakumar, the learned counsel for the petitioner points out that this position will continue upto 2019 and the petitioner who is not having the disabilities as in the case of Sri. Abdul Majeed and is otherwise eligible for promotion will have to wait for the next turn after Abdul Majeed is getting promotion.
6. The learned counsel for the petitioner points out that the Confidential Assistant, who is eligible for appointment as Section Officer need not wait till all the Assistants who have got length of service equal to or greater than them are appointed as Section Officers. According to him, the Note in Ext.P2 only provides that a Typist or Confidential Assistant will not be appointed as Section Officer in preference to an Assistant who has the next chance of appointment as Section Officer and whose age or total length of service is equal to or greater than that of the Typist/Confidential Assistant. Therefore, it is his contention that the Typist/Confidential Assistant need wait only in respect of one Assistant who is the next claimant or who is having the next chance of appointment. Therefore, it is argued that the words "an Assistant" as well as "next chance" of appointment qualifying the Assistant would only indicate that the reference is to an Assistant within a block of 17 vacancies and that can be only once and that there is no provision to give the vacancy in the turn of CA to Assistant in every block of 17 vacancies in case there is an Assistant who is having the chance of appointment as W.P(c).No.4870/2016-G 6 the Section Officer and therefore the CA has to wait for the position till there is no Assistant having age or length of service above him. It is pointed out that "the next chance of appointment" will be only once and when it specifically refers to an Assistant that can be with reference to the Assistant, who is having length of service equal to or greater than that of the Typist/Confidential Assistant within one block of 17 vacancies. I am of the view that the respondents have not considered the matter on this aspect while rejecting the request of the petitioner in Ext.P11. Moreover, it is seen that in case such an interpretation is adopted, the promotion granted to the Assistants subsequent to 1.11.2013 would be affected.
7. Therefore, it is a matter to be considered by the Government after affording an opportunity of hearing to the petitioner, Sri T.P.Abdul Majeed, who is senior to the petitioner, the 3rd respondent and all other Assistants who were granted promotion on and after 1.11.2013. This shall be done within a period of three months from the date of receipt of a copy of this judgment.
The Writ Petition is disposed of accordingly.
Sd/- (P.V.ASHA, JUDGE) rtr/ W.P(c).No.4870/2016-G 7 APPENDIX PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF G.O.DATED 05.09.1992.
EXHIBIT P2 TRUE COPY OF G.O.DATED 16.07.1994.
EXHIBIT P3 TRUE COPY OF G.O.DATED 19.09.2007.
EXHIBIT P4 TRUE COPY OF ORDER DATED 30.10.2012.
EXHIBIT P5 TRUE COPY OF ORDER DATED 23.12.2013.
EXHIBIT P6 TRUE COPY OF BLOCK I AND BLOCK II LIST
PREPARED BY THE 2ND RESPONDENT.
EXHIBIT P7 TRUE COPY OF ORDER DATED 1.11.2013.
EXHIBIT P8 TRUE COPY OF REPRESENTATION DATED
04.01.2014 SUBMITTED BY THE PETITIONER
BEFORE THE 2ND RESPONDENT.
EXHIBIT P9 TRUE COPY OF SELECT LIST DATED 15.03.2014.
EXHIBIT P10 TRUE COPY OF REPRESENTATION DATED 6.12.2014
SUBMITTED BY THE PETITIONER BEFORE THE
HON'BLE SPEAKER.
EXHIBIT P11 TRUE COPY OF THE ORDER DATED 24.08.2015.
RESPONDENT'S EXHIBITS:
EXHIBIT R2 (a) TRUE COPY OF RELEVANT PAGES OF SENIORITY
LIST AND GRADATION LIST.
EXHIBIT R2 (b) TRUE COPY OF THE RELEVANT PAGES OF REVISED
SENIORITY AND GRADATION LIST OF ASSISTANTS.
EXHIBIT R2 (c) TRUE COPY OF THE ORDER IN RP NO.732/12 IN
WPC NO.4550/08.
EXHIBIT R2 (d) TRUE COPY OF THE RELEVANT PAGES OF
SENIORITY LIST OF CONFIDENTIAL ASSISTANT AS
ON 01/02/2014.