High Court Kerala High Court

R.Bhagyalakshmi vs Principal Secretary on 14 July, 2010

Kerala High Court
R.Bhagyalakshmi vs Principal Secretary on 14 July, 2010
       

  

  

 
 
  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.

              = = = = = = = = = = = = = =
               Writ Appeal No.1122 of 2010.
              = = = = = = = = = = = = = =

           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.

-: 2 :-

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.

-: 3 :-

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.

-: 6 :-

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/-