IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 1122 of 2010()
1. R.BHAGYALAKSHMI,
... Petitioner
Vs
1. PRINCIPAL SECRETARY,
... Respondent
2. KERALA ELECTRICAL AND ALLIED ENGINEERING
For Petitioner :SRI.S.P.ARAVINDAKSHAN PILLAY
For Respondent :SRI.M.K.THANKAPPAN
The Hon'ble MR. Justice C.N.RAMACHANDRAN NAIR
The Hon'ble MR. Justice P.S.GOPINATHAN
Dated :14/07/2010
O R D E R
C.N.RAMACHANDRAN NAIR
&
P.S.GOPINATHAN, JJ.
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Writ Appeal No.1122 of 2010.
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Dated this the 14th day of July, 2010.
J U D G M E N T
Gopinathan, J.
The petitioner in WP(C).No.4192/2009 is the appellant.
She was provisionally appointed as a Stenographer on 19-4-
1991 in second respondent Company for a period of six
months as advised by the Employment Exchange. On expiry
of the term of appointment, her service was terminated.
But, she continued as a casual Stenographer on daily wage
basis. While so, after obtaining application from the
appellant, the then Managing Director appointed her as
Personal Assistant in the scale of pay of Rs.380 – 1262 by
Ext.P1 order dated 16-4-1994 and she commenced her
service with effect from 18-4-1994. Later, by Ext.P2 dated
6-3-1995 her service was confirmed with effect from 18-10-
1994 in the scale of pay of Rs.750 – 1997. While so, by
WA.No.1122/2010.
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Ext.P3 dated 29-3-1997, the appellant was posted as
Stenographer under the General Manager (Marketing). It
appears that there were so many such appointees working
in the second respondent Company in various sections. The
first respondent having noticed the back-door employment,
directed the 2nd respondent to terminate the services of
such employees who secured appointment through back-
door methods. Consequently, Ext.P4 memo dated 10-7-
1997 was served upon the appellant and other employees to
show cause for not terminating their services. Challenging
Ext.P4, the appellant and other affected 145 persons moved
this Court by filing OP.No.16404/1997. During the
pendency of that proceedings the services of 145 persons
affected by Ext.P4 order was regularized, it is submitted, on
compassionate grounds. The appellant and four others
were not regularized. So, she filed a representation seeking
regularization. Since, no orders were passed she moved
this Court by filing WP(C).No.5285/2008.
WA.No.1122/2010.
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2. By Ext.P9 judgment this Court disposed that writ
petition directing the first respondent to consider her
representation with notice to her. The first respondent,
accordingly, considered her representation and her service
as Stenographer was regularized by Ext.P10 order dated 1-
9-2008. Ext.P10 order is silent regarding the
commencement of the service. Assailing Ext.P10, the
appellant preferred WP(C).No.4192/2009 seeking
declaration that she is entitled to have her service as
Personal Assistant regularized with effect from 16.4.1994.
The learned single Judge by the impugned judgment dated
28-5-2010 found that the appellant is entitled to
regularization from 18-4-1994, the date of commencement
of her service by Ext.P1. Whereas, her request for
regularization as Personal Assistant to the Chairman was
declined. As against the judgment declining her prayer for
regularization as Personal Assistant to the Chairman, this
appeal was filed.
WA.No.1122/2010.
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3. We have heard the learned counsel appearing for
the appellant as well as the Government Pleader and the
Standing Counsel for the second respondent. Irrespective
of her entitlement to the claim for appointment as Personal
Assistant, we find that she was, in fact, having no
educational qualification to claim appointment to that post.
The respondents 1 and 2 in their counter-affidavit had
specifically stated that the qualification for appointment as
Personal Assistant are:
(i) Graduation in English Literature;
(ii) Typewriting and Shorthand Higher; and
(iii) Ten years experience in similar post.
There is no whisper in the petition that the petitioner had
such qualification. Curiously, we note that the petitioner
had conveniently omitted to plead as to whether she has got
sufficient educational qualifications and required
experience to get an appointment as as a Personal
Assistant. The petitioner is only a Commerce graduate with
WA.No.1122/2010.
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Typewriting and Shorthand Lower. There is no case that
she is having any experience. Though the petitioner had, in
her reply-affidavit, put the respondents to proof of the averments
in the counter-affidavit regarding qualification for the post of
Personal Assistant, there is no whisper that the educational
qualification for the post of Personal Assistant affirmed in the
counter-affidavit is not correct. There is also no whisper in the
reply-affidavit that she has got sufficient qualification to hold the
post of Personal Assistant. When a party seeks a relief asserting
rights, it is for that party to establish by pleadings that he or she
is qualified for that right. In the absence of specific pleadings, it
is quite appropriate to accept the pleadings in the counter-
affidavit. So, reliance has to be given to the averments in
the counter-affidavit and to conclude that the petitioner
lacks qualification.
4. It is pertinent to note that Ext.P3 by which the
appellant was posted as Stenographer was not assailed so
far. Therefore, as on the date of Ext.P4, the assailed memo, the
appellant was only a Stenographer. So long as the appellant has
WA.No.1122/2010.
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no challenge against Ext.P3, her claim seeking posting as
Personal Assistant is devoid of merit. Adding to that the
respondents have got a case that the post of Personal Assistant is
of officer category and that of the Stenographer is of worker
category and that though in Ext.P1 it is stated that the appellant
was appointed as Personal Assistant, she was given a pay scale
of Rs.380 – 1262, which is that of a worker category and that
scale of pay of the Personal Assistant affirmed as Rs.1850-3550
in the counter-affidavit is not countered by the appellant.
Therefore, it is to be concluded that though the appellant was
designated as Personal Assistant, she was appointed in a lower
category. From the materials on record, it is evident that the
vacancy was not notified. But, on an application filed by the
appellant, she who was working as a casual Stenographer
on daily wages, somehow or other managed to get her
appointed on Stenographer’s scale with designation as
Personal Assistant. It appears to be a clandestine dealing
on personal consideration and not an appointment on merits
or on the basis of qualification or after a due selection
WA.No.1122/2010.
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process or there is any transparency in her appointment.
Really, the appellant is not entitled to regularization. But,
the first respondent was pleased to regularize on
compassionate grounds. Whatever that be, the appellant
lacks qualification to be appointed as Personal Assistant.
Therefore, she is not entitled to be regularized as a Personal
Assistant. Her claim on that count lacks merit and deserves
no consideration. In the above circumstance, we find that
the appeal is ill-advised and devoid of merit.
In the result, the appeal is dismissed with no order as
to costs.
C.N.RAMACHANDRAN NAIR,
(Judge)
P.S.GOPINATHAN,
(Judge)
Kvs/-