High Court Kerala High Court

Stanly George A. vs Kerala Public Service Commission on 7 June, 2010

Kerala High Court
Stanly George A. vs Kerala Public Service Commission on 7 June, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

OP.No. 5217 of 2002(U)


1. STANLY GEORGE A., ASSISTANT,
                      ...  Petitioner

                        Vs



1. KERALA PUBLIC SERVICE COMMISSION,
                       ...       Respondent

2. STATE OF KERALA, REPRESENTED BY

3. SHRI.CHANDRASEKHARAN PILLAI.S.,

4. SHRI.GEORGE JOSEPH, SECTION OFFICER,

5. SMT.NAJEMA BEEVI H.A., SECTION OFFICER,

6. SMT. USHAKUMARI K., SECTION OFFICER,

7. SHRI.VIVEKANANDAN K., SECTION OFFICER,

8. SMT.GABRIALAL K., SECTION OFFICER,

9. SMT.AYISHA BEEVI S., SECTION OFFICER,

10. SHRI. SASIKUMAR T.S., SECTION OFFICER,

11. SHRI.CHANDRAN E., SECTION OFFICER,

12. SHRI. RAJESAN J.S., SECTION OFFICER,

13. SHRI. VIJAYA DAS S., SECTION OFFICER,

14. SHRI. RAMAKRISHNA K.M., SECTION OFFICER,

                For Petitioner  :SRI.B.RAGUNATHAN

                For Respondent  :SRI.ALEXANDER THOMAS,SC,KPSC

The Hon'ble MR. Justice ANTONY DOMINIC

 Dated :07/06/2010

 O R D E R
                       ANTONY DOMINIC, J.
                     ================
                    O.P.No.5217 OF 2002 (U)
                                 &
                 W.P.(C) NO. 12014 OF 2004 (E)
                =====================

             Dated this the 7th day of June, 2010

                         J U D G M E N T

Petitioners in these petitions are graduate typists. Their

grievance is that in the matter of promotion to the post of Section

Officer, juniors to them in service have got promotion earlier to

them. It is in this background, these petitions have been filed.

2. In so far as OP No.5217/2002 is concerned, the facts

are that, petitioner, being a graduate, entered the service of the

PSC as a Typist on 26/10/83. He claims to be eligible for by

transfer appointment as Section Officer w.e.f. 1/1/2001. It is

stated that by Exts.P8 and P9, respondents 3 to 14 were

appointed as Section Officers, overlooking his claims in as much

as they joined service as Assistants only after 11/5/1984.

3. In so far as the petitioners in WP(C) No.12014/04 are

concerned, their grievance is also similar. Ext.P2 in OP

No.5217/2002, is a copy of the GO(P) No.138/89/GAD dated 5th of

June, 1989. According to the petitioners, as per this Government

Order, graduate Typists like them, are exempted from passing the

OP No.5217/2002 & WP(C) No.12014/04

:2 :

suitability test for appointment to the post of Section Officer and

that the Government Order itself provides that 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. On this basis, counsel contends that since respondents

in these petitions entered service subsequent to them, their total

length of service is less than that of theirs and therefore, they

could not have been preferred to them or given earlier

appointment as Section Officers.

4. It is further contended that although in Ext.P1

Government Order viz., GO(P) No.219/88/GAD dated 17/6/88, vide

clause (c) thereof, it is provided that in the matter of appointment

to the post of Section Officer, Graduate Typists or Confidential

Assistants will not overtake a Senior Grade Assistant or Assistant

Grade I elder to him in age, in view of the provisions contained in

Ext.P2 Government Order, the said Government Order has

become redundant, and therefore, even going by the provisions of

OP No.5217/2002 & WP(C) No.12014/04

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Ext.P1, the party respondents herein could not have been given

promotion earlier than the petitioners.

5. However, learned counsel for the PSC, in whose

services petitioners and the respondents are working defends the

earlier appointment given to the party respondents. According to

the learned counsel for the PSC, the suitability test is exempted

in view of Note (3) to Ext.P2 Government Order referred to above.

It is stated that in the Government Order itself, exemption has

been given subject to the conditions laid down in Ext.P1 GO(P)

No.219/88/GAD dated 17/6/88 referred to above. It is stated that

going by Ext.P1, the party respondents being elder to them in age

are entitled to be treated seniors to the petitioners who are

younger to them in age.

6. In so far as the challenge against Clause (C) of Ext.P1

Government Order raised in WP(C) No.12014/04 is concerned,

that contention is answered by the PSC in its counter affidavit, in

the following words:

In this connection, it is to be pointed out that the Ext.P2
was issued by the Government in consultation with the
Commission. Necessary proposals were formulated and
placed by the Government and the Commission after
considering various aspects involved in the matter

OP No.5217/2002 & WP(C) No.12014/04

:4 :

agreed to the proposals of the Government. The reason
which weighed with the Government in proposing
clause (c) of Ext.P2 Government order and found
reasonable by the Commission is that one can enter in
service as Typists/Confidential Assistants in the
Government Secretariat (or in the office of the K.P.S.C)
also) 3 to 5 years earlier in age than an Assistant who
can join in service only after graduation. A
Typist/Confidential Assistant can acquire graduation
after entering the service and thereby acquire eligibility
to get selection as Section as per the existing ratio at
younger age than the Assistant and thus gain better
prospects for further advancement than the directly
recruited Assistants. In order to mitigate the hardship
caused to the Assistants, Government incorporated a
further condition to the rules to the effect that no
graduate Typists/Confidential Assistant who is younger
in age to a directly recruited Assistant would become
eligible for appointment as Section Officer and issued
the orders in GO(Ms) No.219/88/GAD dt 17.6.88
(Ext.P2). The clause (c) has been incorporated as a
precaution so that injustice as aforesaid may not be
brought about in the case of Assistants while exemption
is granted to graduate Typists/Confidential Assistants
from passing the required suitability test. If no such
condition was made, the exemption granted to
graduate typists/confidential Assistants would have
been prejudicial to the interests of the Assistants. The
intention was that no Section or staff who constitute the
feeder category should be put to hardship or
disadvantage by introduction of new rules to the benefit
of a Section of the feeder category ie. Confidential
Assistants/Typists.

7. Two contentions are raised. One is that Ext.P1

Government Order containing that Clause providing seniority to

elder in age is redundant in view of Ext.P2, the subsequent

OP No.5217/2002 & WP(C) No.12014/04

:5 :

Government Order. The other contention raised is that the clauses

contained in Exts.P1 and P2 are contradictory in nature, and

therefor, the latter one, viz., Ext.P2, should prevail.

8. As far as the contention that Ext.P1 Government Order

containing Clauses (c) challenged in WP(C) No.12014/04 is

redundant is concerned, a reading of Ext.P2, the Government

Order providing for exemption to Grade Typists from acquiring

suitability test, it is provided that such exemption from the

suitability test itself is subject to the conditions laid down in

Ext.P1, viz., GO(P) No.219/88/GAD dated 17/6/88. Therefore, since

the Government Order itself has referred to GO(P) No.219/88/GAD

dated 17/6/88and has incorporated the conditions of the said

Government Order as condition for exemption, I am not

persuaded to accept the contention raised by the learned counsel

for the petitioners that the Government Order has become

redundant.

9. The other contention that is raised is that Exts.P1 and

P2 are contradictory in nature and therefore the latter one should

prevail. A reading of Ext.P2 shows that Graduate

OP No.5217/2002 & WP(C) No.12014/04

:6 :

Typists/Confidential Typists will not be appointed as Section

Officer, in preference to an Assistant, who has next chance of

appointment as Section Officer, and whose total length of service

is equal to or greater than the Typists/Confidential Assistants.

This provision will apply to a Typist/Confidential Assistant, who

has not claimed or enjoyed the benefit of exemption. In other

words, this provision applies to a Graduate Typist or Confidential

Assistant, who is qualified in all respects including in Suitability

test. On the other hand, Note 3 providing for exemption applies

to Graduate Typists, who have not passed Suitability Test and the

Note provides that such Graduate Typists will enjoy the benefit of

exemption, but however, subject to the conditions of GO(P)

No.219/88/GAD dated 17/6/88. Therefore, these two Government

Orders deal with two classes of Graduate Typists/Confidential

Assistants and Ext.P1 GO(P) No.219/88/GAD dated 17/6/88

applies only in respect of the latter one. Viewed in this manner, I

am not persuaded to agree with the counsel for the petitioners

that there is anything contradictory in between Exts.P1 and P2

nor hold that Ext.P2 should govern the field. Therefore, that

OP No.5217/2002 & WP(C) No.12014/04

:7 :

contention also has to be rejected

10. As far as the challenge against Clause (c) of Ext.P1 GO

(P) No.219/88/GAD dated 17/6/88 is concerned, PSC has

explained in the counter affidavit, the reasons which made the

Government to provide for such seniority to the employees who

are elder in age. Nothing has been placed on record to conclude

that the said reasoning given by the PSC in its counter affidavit is

incorrect or erroneous. Therefore, I see no merit in these

petitions. These petitions are devoid of merit and are rejected.

OP No.5217/2002 and WP(C) No.12014/04 are dismissed.

ANTONY DOMINIC, JUDGE
Rp