Kerala High Court
Balachandran V.T vs The State Of Kerala on 7 September, 2016
Author: P.R.Ramachandra Menon
Bench: P.R.Ramachandra Menon
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
&
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
WEDNESDAY, THE 7TH DAY OF DECEMBER 2016/16TH AGRAHAYANA, 1938
OP(KAT).No. 172 of 2016 (Z)
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AGAINST THE ORDER IN OA NO.1795/2016 of KERALA ADMINISTRATIVETRIBUNAL,
THIRUVANANTHAPURAM DATED 07.09.2016
PETITIONER:
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BALACHANDRAN V.T
S/O. THANKAPPAN, AGED 55 YEARS, DRIVER GRADE I
ICDS PROJECT OFFICE, MANNARKKAD, PALAKKAD, PIN - 678 582
RESIDING AT VAIPEL HOUSE, KUMARAMPATHOOR P.O.
MANNARKKAD, PALAKKAD, KERALA, PIN - 678 583.
BY ADV. SRI.P.P.JACOB
RESPONDENT(S):
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1. THE STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
SOCIAL JUSTICE DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM -695 001.
2. THE DIRECTOR
DEPARTMENT OF SOCIAL JUSTICE,
DIRECTORATE OF SOCIAL JUSTICE
VIKAS BHAVAN, THIRUVANANTHAPURAM - 695 033.
3. THE CHILD DEVELOPMENT PROJECT OFFICER
ICDS PROJECT OFFICE,
MANNARKKAD, PALAKKAD - 678 582.
* 4. K.I. SHOWKATH ALI, CLERK,
SOCIAL JUSTICE DEPARTMENT, PALAKKAD.
* [R4 IS IMPLEADED AS PER ORDER IN I.A. NO.1704 OF 2016
DATED 07.12.2016]
BY SENIOR GOVERNMENT PLEADER SRI.T. RAJASEKHARAN NAIR
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR
ADMISSION ON 07-12-2016, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
OP(KAT).No. 172 of 2016 (Z)
APPENDIX
PETITIONER'S EXHIBITS :-
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EXT.P1 - COPY OF THE O.A 1795/2016 WITH ANNEXURES
DATED 30-07-2016.
ANNEXURE A1 - COPY OF THE G.O.(P) NO.1/2014/P&ARD
DATED 03.01.2014.
ANNEXURE A2 - COPY OF THE CIRCULAR (REMINDER) NO.E9/3400/14
DATED 25.02.2014 OF THE SECOND RESPONDENT.
ANNEXURE A3 - COPY OF THE LETTER NO.265/2014 DATED 18.09.2014
OF THE CHILD DEVELOPMENT PROJECT OFFICER,
MANNARKKAD.
ANNEXURE A3(A) - COPY OF THE PROFORMA OF THE APPLICANT.
ANNEXURE A4 - COPY OF THE G.O.(P) NO.21/2014/PARD DATED 19.07.14.
ANNEXURE A5 - COPY OF THE ORDER NO.E9/3400/14(9) DATED 12.09.14
OF THE SECOND RESPONDENT.
ANNEXURE A6 - COPY OF THE PROVISIONAL SENIORITY LIST OF CLASS
IV AND LOW PAID EMPLOYEES IN THE PALAKKAD
DISTRICT APPENDED TO ANNEXURE A5.
ANNEXURE A7 - COPY OF THE ORDER NO.E9/3400/14(9) DATED 19.11.14
OF THE SECOND RESPONDENT.
ANNEXURE A8 - COPY OF THE COMBINED SENIORITY LIST OF CLASS
IV AND LOW PAID EMPLOYEESIN PALAKKAD DISTRICT
UP TO 13.12.2010.
ANNEXURE A9 - COPY OF THE REPRESENTATION DATED 20.12.2014
SUBMITTED BY THE APPLICANT BEFORE THE SECOND
RESPONDENT.
ANNEXURE A10 - COPY OF THE ORDER NO.E9/9364/14/16 DATED 17.03.16
OF THE SECOND RESPONDENT.
ANNEXURE A10(A) - COPY OF THE STATE LEVEL COMBINED PROVISIONAL
SENIORITY LIST OF LOW PAID EMPLOYEES IN THE
SOCIAL JUSTICE DEPARTMENT.
ANNEXURE A11 - COPY OF THE LETTER NO.113/16 DATED 03.04.2016 OF
THE CHILD DEVELOPMENT PROJECT OFFICER,
MANNARKKAD.
ANNEXURE A12 - COPY OF THE PROFORMA ATTACHED TO
ANNEXURE A11.
[CONTD...]
OP(KAT).No. 172 of 2016 (Z) 2
ANNEXURE A13 - COPY OF THE RELEVANT PAGE OF THE STAMP
ACCOUNT REGISTER KEPT IN THE OFFICE OF THE
CHILD DEVELOPMENT PROJECT OFFICER,
MANNARKKAD.
ANNEXURE A14 - COPY OF THE GOVERNMENT LETTER
NO.15952/K/15/H&FWD DATED 24.11.2015.
EXT.P2 - COPY OF THE RELEVANT PORTION OF THE SENIORITY
LIST PAGES 1 TO 8 AND LAST PAGE PUBLISHED BY
THE SECOND RESPONDENT DATED 06-10-2016.
EXT.P3 - COPY OF THE ORDER IN O.A 1795/16 DATED 07-09-2016.
RESPONDENTS' EXHIBITS:- NIL
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//TRUE COPY//
P.A. TO JUDGE
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P.R. RAMACHANDRA MENON & P.SOMARAJAN,JJ.
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O.P. (KAT) No.172 of 2016
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Dated this the 7th day of December, 2016
JUDGMENT
The petitioner, applicant in OA No.1795 of 2016, is stated as aggrieved of the course and events pursued by the respondent State/Department in not giving appointment to the petitioner by transfer to the post of LD Clerk/Typist in anyone of the vacancies in Palakkad District, based on his position in Ext.P2 final seniority list, at the earliest, at any rate, on or before his date of retirement.
2. The sequence of events reveals that the petitioner entered into service in the Social Justice Department as a Driver on 02.04.1998. Byy virtue of Annexure A1 G.O.(P) No.1/2014/P&ARD dated 013.01.2014, he is stated as entitled to be appointed by-transfer as an LD Clerk/Typist, based on his seniority. According to the petitioner, he is the senior most hand in Palakkad District O.P. (KAT)No.172 of 2016 2 and seniority is maintained on District-wise basis. As a matter of fact, Annexure A6 provisional seniority list was published by the State/Department about 6 years ago on 13.12.2010, where, the person by name K.I Shoukath Ali was shown at Serial No.1, virtually ignoring the better seniority of the petitioner, who ought to have been placed in that slot. The petitioner filed objection, but the same was not considered or finalised, which made him to approach the Tribunal by filing the aforesaid OA with the following prayers:
"i) Declare that the applicant is entitled to be included in the final combined seniority list of Low Paid and Class IV employees in the Social Justice Department and appointed as Clerk with effect from the due date.
ii) Direct the respondents 1 and 7 to include the applicant in the final seniority list of Low Paid and Class IV employees in the Social Justice Department eligible for by transfer appointments as Clerk/Typist, at appropriate place, appoint him as Clerk with effect from due date, and grant him all consequential service benefits within a time limit to be fixed by this Hon'ble Court.
and
iii) Grant such other reliefs as this Hon'ble Court deems fit and proper in the circumstances of this case including te cost of this Original Application."O.P. (KAT)No.172 of 2016 3
3. When the matter came up for consideration, it was submitted on behalf of the State/Department that the seniority list had already been finalised, after considering the objections raised by the petitioner/applicant and that he had already been included in the list. Based on the said submission, an interim order was passed on 22.08.2016, to produce a copy of the order by which the name of the petitioner/applicant was included. Thereafter, on 31.08.2016, it was submitted on behalf of the State/ Department that the final seniority list was to be published and thereafter on 07.09.2016, it was asserted from the part of the Department that the same had been published already. In view of the course and events, the prayer was confined by the applicant to give appropriate direction to the 2nd respondent to consider the claim of the applicant for by-transfer appointment as LD Clerk/Typist within a time frame. It was accordingly that, the OA was disposed of, observing that the matter had to O.P. (KAT)No.172 of 2016 4 be finalised with reference to the date of occurrence of the vacancy and eligibility of the applicant for appointment to the post of LD Clerk, in tune with the ranking in the recently published final seniority list, in turn directing the 2nd respondent to take a final decision within two months.
4. The grievance now projected by the petitioner is that, the respondents have virtually thrown the better rights of the petitioner to wind and are wrongly accommodating the person by name K.I. Shoukath Ali who was wrongly placed at Serial No.1 of Annexure A6, despite the fact that in the final seniority list, the petitioner stands placed as Serial No.19, while Mr.K.I. Shoukath Ali stands placed only below, at Serial No.31.
5. The prayers in the Original Petition are in the following terms:
"i. Call for the records and files of O.A. 1795/16 of the Kerala Administrative Tribunal, Thiruvananthapuram and peruse the same.O.P. (KAT)No.172 of 2016 5
ii. Direct the respondents 1 to 3 to appoint the petitioner by transfer in the post of LD Clerk/Typist in any of the vacancy in the Palakkad District immediately considering that the petitioner will retire by 31.12.2016.
iii. Direct the respondent to revert the employee enlisted as Sl. No.31 in Ext.P2 list immediately in order to appoint the petitioner by transfer in the said post if no other vacancy is available.
iv. Issue such other reliefs which may deem fit and proper in the facts and circumstances of the above writ petition."
6. The learned Senior Government Pleader appearing for the respondents submits that the prayer No.3 amounts to a new case and that reversion of K.I. Shoukath Ali was never a prayer included in the OA and further, the said person was never in the party array.
7. The learned counsel for the petitioner, however, submits that, it is because the callous inaction on the part of the State/Department, that the petitioner is constrained to approach this Court with the aforesaid prayer, besides seeking to implead K.I Shoukath Ali in the party array by filing IA No.1704 of 2016. It is further pointed out by the learned counsel for the petitioner that, it is only on the basis of the assertion made from the part O.P. (KAT)No.172 of 2016 6 of the Government that the matter was finalised by the Tribunal, based on the placement given to the petitioner in the final seniority list. Mr.K.I Shoukath Ali, shown at Serial No.1 in Annexure A6, who stands tranposed to Sl. No.31 in the final list, placing below the petitioner did not have any grievance, with regard to this transposition in Ext.P2 combined final seniority list giving higher placement to the petitioner at Serial No.19. This being the position, the proceedings ought to have been taken to a logical conclusion by giving appointment to the petitioner in preference to the person by name K.I Shoukath Ali and this corrective exercise has not been done despite the specific order/observations made by the Tribunal and hence the grievance.
8. This Court finds considerable force in the said submissions, more so since, Ext.P3 judgment was passed by the Tribunal on 07.09.2016 and the prescribed time of 'two months' is already over. It is also brought to the O.P. (KAT)No.172 of 2016 7 notice of this Court that the petitioner will be retiring, attaining the age of superannuation, on 31.12.2016. If the petitioner is otherwise eligible to be appointed on by- transfer appointment as an LD Clerk/Typist based on the credentials and if he is made to retire from the post of Driver even without permitting to occupy the chair of Clerk/Typist atleast for the remaining days, at the same time, permitting the person by name K.I Shoukath Ali, who is wrongly occupying the post of Clerk/Typist, it can be only regarded as an act of callous inaction or deliberate attempt on the part of the Officers concerned, without paying any heed to implement the verdict passed by the Tribunal, by letter and spirit.
9. The learned Senior Government Pleader submits that an order is still to be passed based on the actual facts and figures, pursuant to Ext.P3 verdict.
10. We find it appropriate to direct the 2nd respondent to pass appropriate orders in terms of Ext.P3 O.P. (KAT)No.172 of 2016 8 verdict passed by the Tribunal giving by transfer appointment as LD Clerk/Typist to the petitioner, if he is otherwise eligible and give a posting within ten days from today. The learned Senior Government Pleader is required to convey the gist/ outcome of the Original Petition to the 2nd respondent/ Director today itself, either by fax or otherwise. Any lapse on the part of the 2nd respondent/Director to give effect to the verdict passed by the Tribunal and also of this Court will be viewed seriously, to be followed with appropriate consequence.
The writ petition is disposed of.
P.R. RAMACHANDRA MENON, JUDGE.
P.SOMARAJAN, JUDGE.
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