IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 34049 of 2006(C)
1. RAJENDRAN NAIR,
... Petitioner
Vs
1. THE PRINCIPAL SECRETARY TO GOVERNMENT,
... Respondent
2. THE DIRECTOR, OFFICE OF THE
3. THE MANAGER, B.N.V.V. & HIGHER
For Petitioner :SRI.R.T.PRADEEP
For Respondent :SRI.P.N.RAVINDRAN
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :15/06/2009
O R D E R
T.R. Ramachandran Nair, J.
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W.P.(C) No.34049 of 2006-C
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Dated this the 15th day of June, 2009.
JUDGMENT
The petitioner who was appointed as Watcher, was later promoted as
a Lab Assistant from the category of 25% for transfer appointment from
qualified Class IV employees. He is aggrieved by Ext.P12, whereby
approval of his appointment has been rejected.
2. The petitioner has been working under the third respondent
management as a Watcher from the year 1985. He was promoted as a Peon
in the year 1987. The Government as per G.O.(P) No.331/2001/G.Edn.
dated 9.11.2001 prescribed the method of appointment and qualification for
non-teaching staff in aided Higher Secondary Schools. As far as the post of
Lab Assistant is concerned, 25% of the total posts shall be filled up from
among Class IV employees in the schools under the educational agency
and the remaining 75% by direct recruitment. This is clear from Ext.P2. By
Ext.P3, the Government sanctioned two posts of Lab Assistants in each
aided higher secondary school. By Ext.P4, the Director of Higher
Secondary Education accorded sanction for creation of two posts of Lab
Assistant in the third respondent’s school.
wpc 34049/2006 2
3. The manager made the appointments subsequently. It appears that
apart from making appointments in these two sanctioned posts, he made
appointment to two supernumerary posts also. All the four happened to be
fresh appointments coming under the 75% quota, that too without
recognising the right of the petitioner who was the seniormost under the
25% category.
4. By Ext.P5, the Director of Higher Secondary Education granted
approval of appointment of one Jaya Hari, being an appointee under the
75% category. As per Ext.P8, approval has been granted for the
appointment of one Gopakumar D., and Anil Nair in two posts on
supernumerary basis. The petitioner was appointed as per Ext.P1 by the
Manager, after the Director refused approval of appointment one of the
persons appointed under the 75% quota. By Ext.P6, the Government fixed a
cut off date, viz. 28.3.2003 so as to regularise the appointments made to the
post of four Lab Assistants. The Government later, by Ext.P7, issued a
revised order. Going by Ext.P7, the person appointed by direct recruitment
under 75% quota will be accommodated against the first sanctioned post
and second sanctioned post will be earmarked for appointment by transfer
appointment under 25% quota. The petitioner is relying upon the said
clause. But the Director of Higher Secondary Education forwarded his
recommendations as per Exts.P10 and P11 to the Government stating that
wpc 34049/2006 3
the appointment cannot be approved as it was made after the cut off date,
viz. 28.3.2003. Accordingly, the Government rejected the approval as per
Ext.P12. The view taken in Ext.P12 is that since the petitioner was
promoted to the post of Lab Assistant by the Manager on 21.2.2005, there
exists no vacancy of Lab Assistant to promote him as on that date. The
above finding is rendered relying upon clause (iv) of Ext.P7, to the effect
that if one or both of the sanctioned posts happen to be vacant it will be
filled up by accommodating the elder supernumerary person. Fresh
appointments of Lab Assistants shall be made only after exhausting the
supernumerary posts and a vacancy arises in the sanctioned posts.
Accordingly, it was held that there is no vacancy.
5. Learned counsel for the petitioner submitted that the view taken by
the Government cannot be accepted. It is pointed out that going by clause
(ii) of Ext.P7, the person appointed by direct recruitment under 75% quota
will be accommodated against the first sanctioned post and second
sanctioned post will be earmarked for appointment by transfer appointment
under 25% quota. The petitioner was eligible and entitled for such
appointment. But the Manager made a mistake in filling up all the four
posts by direct recruits. Approval was not granted in respect of one of the
appointees. Obviously, going by Ext.P7 the person appointed under the
75% quota will be accommodated against the first sanctioned post. Going
wpc 34049/2006 4
by Ext.P8, two other appointees were granted approval on supernumerary
basis. Therefore, it is clear from these two orders that the second post
earmarked for 25% quota has not been filled up properly. This fact has not
been taken into consideration by the Government while passing Ext.P12
order. Only in the absence of a person coming under clause (ii) of Ext.P7
alone, the method provided under clause (iv) can be adopted. This is not a
case where one of the sanctioned post was kept vacant prior to 28.3.2003
since the manager had filled up all the four vacancies by fresh hands. The
eligibility of the petitioner for appointment is evident, since he was the
rightful claimant under 25% quota, which is an admitted fact. Therefore,
when the manager has issued Ext.P1 appointment order, that should have
been with effect from 2.6.2003, viz. the date of creation of post as per
Ext.P4. Merely for the said fault of the manager the petitioner cannot be
deprived of his rightful claim.
6. In the counter affidavit, in para 4 it is clearly stated that 25%
vacancy of Lab Assistant is reserved for ‘by promotion category.” As such,
one post is to be set apart for appointment by promotion from the existing
Class IV employees of the school. But the manager has not done this prior
to 28.3.2003. He appointed all the four Lab Assistants from open market.
7. It is clear from the averments contained in para 2 of the counter
affidavit that an objection was taken regarding the approval of appointment
wpc 34049/2006 5
in respect of one of the four appointees who were appointed from open
market by the manager. It is stated that at the time of granting approval of
appointment to the Lab Assistants, this anomaly was brought to the
attention of the manager and then he appointed the petitioner as Lab
Assistant with effect from 21.2.2005 and furnished the proposal for
approval. This aspect is pointed out in Exts.P10 and P11 also by the
Director. In Ext.P11, it is specifically stated in para 5 that “actually Shri
Rajendran Nair was to be appointd in the post prior to 28.3.2003.”
Therefore, clearly, if the appointment of the petitioner was made at the right
point of time, it could have been approved, as eligibility has been
recognised. The manager had illegally appointed another person in the
post to which the petitioner had to be appointed. Once the approval is
rejected in respect of one of the appointees, automatically the manager
should have appointed the petitioner with effect from the date of Ext.P4.
6. In that view of the matter, the stand taken by the Government in
Ext.P12 cannot be accepted. The main reason stated that the appointment
was effected from 21.2.2005 and the regularisation can be made only in
respect of appointments made up to 28.3.2003. As already noticed, the
method provided in clause (iv) of Ext.P7 could be considered only if one of
the sanctioned posts happened to be vacant. Herein, clearly the second post
under 25% quota was filled up by the manager as on the cut off date.
wpc 34049/2006 6
Therefore, the petitioner should be the beneficiary when the approval was
refused in respect of one of the appointees in the vacancy earmarked for
transfer appointment, under 25% category.
7. In that view of the matter, Ext.P12 is quashed. The third
respondent Manager is directed to submit a fresh proposal for filling up the
vacancy earmarked for 25% quota by appointing the petitioner with effect
from 28.3.2003. Appropriate action shall be taken within a period of one
month from the date of receipt of a copy of this judgment. The Manager
will forward the proposal to the second respondent who will pass
appropriate orders regarding approval in the light of the findings rendered
above, within a further period of six weeks. The petitioner will be entitled
for consequential monetary benefits also.
The writ petition is allowed as above. No costs.
(T.R. Ramachandran Nair, Judge.)
kav/