IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 15357 of 2009(L)
1. S. SUNIL KUMAR,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
2. THE DIRECTOR OF HEALTH SERVICES,
3. K.P. SUNIL KUMAR,
For Petitioner :SRI.N.SUGATHAN
For Respondent :SRI.BRIJESH MOHAN
The Hon'ble MR. Justice C.T.RAVIKUMAR
Dated :01/10/2010
O R D E R
C.T. RAVIKUMAR, J.
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W.P.(C). NO.15357 OF 2009
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Dated this the 1st day of October, 2010
JUDGMENT
Frustrated by the stagnation in the entry post for over two decades
and alleging illegal denial of promotion, the petitioner, who is working as
Laboratory Technician in the State Public Health Laboratory under Health
Services Department (for short ‘the Department’ only) filed this Writ
Petition. The challenge in this Writ Petition is against Exts. P7 and P10
and the further prayer is for the issuance of a writ of mandamus
commanding the second respondent to promote the petitioner to the cadre
of Publication Assistant and to grant him all consequential benefits based
on that promotion with effect from 20.3.2009. The question of propriety
and legality in conducting Eligibility Assessment Test for promotion to the
post of Publication Assistant also crop up for consideration in this Writ
Petition.
2. The brief facts relevant for the purpose of deciding the issues
involved in this Writ Petition are as follows:-
The petitioner entered in the service of the Department as
Laboratory Technician in the year 1987. On completion of ten years of
W.P.(C) NO.15357/2009 2
service in the said entry grade, he was granted the first higher grade and
on completion of 18 years of service in the said cadre, he was granted the
second higher grade as per Ext.P1 with effect from 20.7.2004. Based on
Ext.P1, initially he was sanctioned scale of pay of Rs.5000-8150 and based
on the pay revision issued in G.O.(P).No.145/06/Fin.dated 25.3.2006, it
was revised to Rs.8390-13270. He has been drawing salary in the said
revised scale with effect from 20.7.2004.
3. As per Ext.P2 circular dated 14.5.2008, the second respondent
invited applications for the post of Publication Assistant in the Department
from departmental hands possessing the prescribed qualifications. The
qualifications prescribed thereunder were as follows:
1.Graduation
2.Must have produced or published pamphlets, articles or booklets
or book in Malayalam.
The method of appointment has been provided thereunder as follows:
By promotion from the following categories in this Department.
1. Family Planning Health Assistant
2.Health Assistant
3.Public Health Worker
4.Lab Technician
W.P.(C) NO.15357/2009 3
4. The petitioner has passed B.A and Laboratory Technician
Course. He had published articles in ‘Kerala NGO’, a periodical
publication of the Joint council of State Service Organisations recognised
by the Government of Kerala. Therefore, in response to in Ext.P2 circular,
he submitted Ext.P3 application on 4.6.2008. Ext.P4 is the service details
of candidates who had submitted applications pursuant to Ext.P2 including
that of the petitioner. Indisputably, the petitioner was the seniormost
among the applicants and also the highest salary drawer in the highest
scale of pay among them. Though, two other Laboratory Technicians
namely one Smt.Haripreetha. A.L and Suresh Kumar R were among the
applicants, they were much juniors to him. Evidently, the then scale of
pay of Laboratory Technician was Rs.8390-13270. As regards the third
respondent, he commenced his career under the Department as Junior
Health Inspector on 10.8.1997 and he was in the said cadre and his scale of
pay was Rs.7480-11910 at the relevant point of time, as is obvious from
Ext.P4.
5. Delay in the matter of effecting promotions pursuant to Ext.P2
circular, made the petitioner to file Ext.P5 representation dated 16.10.2008
before the second respondent. Later, for the same reason, he had to
W.P.(C) NO.15357/2009 4
approach this Court by filing W.P.(C).NO.33106/2008 and the same was
disposed of by Ext.P6 judgment. After the receipt of Ext.P6 judgment, the
second respondent vide Ext.P7 letter dated 13.3.2009 directed the
petitioner to attend an Eligibility Assessment Test on 20.3.2009 at 10 A.M
at the Directorate of Health Services, Thiruvananthapuram in connection
with the appointment to the post of Publication Assistant. On receipt of
Ext.P7, the petitioner had submitted Ext.P8 representation dated 17.3.2010
requesting the second respondent to drop the proposal to conduct
Eligibility Assessment Test as it is not a selection post and even as per
Ext.P2, the appointment to the post of Publication Assistant was by
promotion. Ext.P2 did not provide for constitution of any selection
committee or holding eligibility test for promotion to the said post. The
post of Publication Assistant is a non-gazatted and non-selection post.
Somuch so promotion has to be effected from among the qualified hands in
the Department based on seniority and the qualification and experience
and also taking into account the scale of pay of the posts held by the
applicants. In short, the action on the part of the second respondent in
proposing to conduct Eligibility Assessment Test was bad and without
jurisdiction and it was in the said circumstances that he assailed Ext.P7
W.P.(C) NO.15357/2009 5
through Ext.P8. Non-consideration of Ext.P8 representation by the second
respondent made the petitioner, again, to approach this Court through
W.P.(C).NO.9083/2009 challenging Ext.P7. The said Writ Petition came
up for admission on 20.3.2009, the date on which the Eligibility
Assessment Test was scheduled to be held. Hence the petitioner appeared
for the Eligibility Assessment Test on 20.3.2009 and thereafter, filed a
memo dated 1.6.2009 in the said Writ Petition and based on the same, as
per judgment dated 1.6.2009, W.P.(C).NO.9083/2009 was dismissed as
withdrawn, but, with liberty to file a fresh Writ Petition with the same
subject matter. As already noticed, the petitioner had appeared for the
Eligibility Assessment Test held on 20.3.2009. Ext.P9 is the manuscript
question paper set for the said test. The subject of the test was shown in
Ext.P9 as hereunder:-
: -
?
6. The applicants were directed to write an essay on the said
subject in 20 minutes. As already noticed, the contention of the petitioner
is that conducting Eligibility Assessment Test is bad in law and without
jurisdiction. No selection committee was also constituted for that purpose.
W.P.(C) NO.15357/2009 6
After conducting Eligibility Assessment Test on 20.3.2009, the second
respondent passed an order provisionally promoting the third respondent to
the cadre of Publication Assistant as per Rule 31(a) (I) of Part II of the
Kerala State & Subordinate Services Rules, for short ‘the Rules’ only, in
the Directorate of Health services against the existing vacancy. It is
challenging the said order viz., Ext.P10 and P7 letter pursuant to which
the Eligibility Assessment Test was conducted for effecting promotion
based on Ext.P2, that this Writ Petition has been filed.
7. Before adverting to the rival contentions, at the outset, I may
deal with one disturbing aspect. Evidently, as per Ext.P10, the third
respondent was promoted provisionally under Rule 31(a) (i) of the Rules.
In Ext.P10, it is stated thus: ‘This order is also issued in implementation
of judgment dated 5.2.2009 in W.P.(C).NO.33106/2008.’ The judgment
referred to therein is Ext.P6 judgment. Therefore, it is relevant to refer to
the operative portion of Ext.P6 judgment and the same reads thus:-
“Since the allegation is that the matter is being
prolonged to continue the appointment of a temporary
hand, there will be a direction to the second
respondent to finalise the selection procedure in
respect of the post notified and take appropriate action
W.P.(C) NO.15357/2009 7
to appoint a regular hand. The same shall be done
within a period of two months from the date of receipt
of a copy of this judgment.
(emphasis supplied)
A bare perusal of Ext.P6 judgment would reveal that taking note of the
allegation of the petitioner herein that without resorting to the notified
method of appointment, the post of Publication Assistant was sought to be
filled up by a temporary hand this Court directed the second respondent to
finalise the selection procedure in respect of the said post and to take
appropriate action to appoint a regular hand. It is for complying with that
direction the period of two months from the date of receipt of a copy of the
judgment was stipulated as per Ext.P6 judgment. This fact has not been
disputed by the parties and, in fact, it is indisputable in the light of Ext.P6.
Therefore, I am of the view that in fact, by effecting temporary promotion
under Rule 31 (a)(i) of the Rules in and vide Ext.P10 even after finalising
the selection procedure, what was done by the second respondent was not
exactly implementation of Ext.P6 judgment whilst it was violation of the
specific directions in the said judgment. Ext.P10 would undoubtedly show
that it was issued pursuant to Ext.P2 circular dated 14.5.2008, Ext.P6
W.P.(C) NO.15357/2009 8
judgment dated 5.2.2009 and Ext.P7 letter dated 13.2.2009. I am at a loss
to understand as to how a provisional appointment effected as per Rule 31
(a) (i) of the Rules to the post of Publication Assistant pursuant to Ext.P2
circular could be claimed as an order issued in implementation of Ext.P6
judgment when the specific direction was to the contrary. In unambiguous
terms, the second respondent made it clear that the promotion of the third
respondent has been made provisionally. The action on the part of the
second respondent in effecting a provisional appointment under Rule 31(a)
(i) even after referring to Ext.P2 circular and Ext.P6 judgment and then
making an assertion in the said order that it has been made in
implementation of Ext.P6 judgment is highly deprecative and censurable.
In short, the appointment effected as per Ext.P10 is flagrant violation of
the specific directions in Ext.P6 judgment and on that sole score, in fact,
Ext.P10 is liable to be interfered with.
8. Now, I may refer to certain other relevant aspects. To know
the juniority and seniority of the applicants who responded to Ext.P2
circular one need only a glance at Ext.P4. It would reveal that the
petitioner was five years senior than the seniormost among the other
applicants viz., Shijimon.J going by the length of service. It would also
W.P.(C) NO.15357/2009 9
reveal that the third respondent had put in only 9 years of service whilst
the petitioner had completed more than double the service of the third
respondent, at the relevant point of time. The details shown in Ext.P4 as
regards the scales of pay of the applicants also cannot escape notice.
Ext.P4 would reveal that Serial Nos.5 to 7 therein viz., Haripreetha A.L
and one Sri.Suresh Kumar R. and the petitioner belong to the same
category of Laboratory Technician. The said Haripreetha A.L had put in
service of 9 years ie., equivalent to the service put in by the third
respondent and she was then carrying a scale of pay Rs.8390-13270 that is
higher than that of the third respondent viz., Rs.7480-11910. However,
after recording the category of the petitioner as that of the category to
which said Haripreetha A.L belongs, there was no justification or reason to
enter a remark against the relevant column pertaining to the petitioner as
‘not available’ ( ). A reason can be assigned to the effect that the
petitioner had not mentioned the same in his application. The entries in
Ext.P4 would suggest that the fourth respondent acknowledged the fact
that Smt.Haripriya A.L, Suresh Kumar and the petitioner viz., Serial Nos.5
to 7 respectively in Ext.P4, belong to the category of Laboratory
Technician. In the column for basic pay of the petitioner and the third
W.P.(C) NO.15357/2009 10
respondent, the respective entries in therein are ‘11360’ and ‘8590’. Thus,
Ext.P4 is indubitably indicate the clear seniority of the petitioner over the
third respondent in the department and in that matter, over all the other
applicants, and also the fact that he was drawing pay in a higher scale than
that of the third respondent.
9. The issues involved in this Writ Petition have to be addressed
bearing in mind the aforesaid indisputable and undisputed facts. The
contention of the petitioner is that the post of Public Assistant is a non-
gazetted and non-selection post. This significant aspect was not
specifically disputed by the respondents. Going by Ext.P2, the method of
appointment is by promotion from among the following categories under
the Department:
1. Family Planning Health Assistant
2. Health Assistant
3. Basic Health Worker
4. Lab Technician
Ext.P2 circular would further reveal that conduct of an Eligibility
Assessment Test was not provided thereunder. According to the
petitioner, in the said circumstances, Ext.P11 G.O prescribing the
qualification and the method of appointment assume relevance. The
W.P.(C) NO.15357/2009 11
petitioner has also contended that Government have ordered as per
Memorandum dated 8.10.1969 that when there are more than one feeder
category for promotion to a post, persons belonging to the feeder category
with higher scale of pay should be considered to have preferential claim.
In fact, later guideline was incorporated as note(vi) under sub clause 7 of
rule 28(b)(i) of Part II Kerala State & Subordinate Services Rules . It
reads thus:
“When there are more than one feeder category
carrying different scales of pay, they shall be shown in
separate lists and persons in a lower scale of pay shall
be appointed only after appointing all person on a
higher scale of pay, unless the Special Rules prescribe
a ratio or any special order of preference for each
feeder category”.
10. Now, I may advert to the moot question as to whether, in the
matter of promotion to the post of Publication Assistant, Eligibility
Assessment Test could have been conducted on or not. As already noted,
the contention of the petitioner is that the said post is a non-gazetted one
and it is a non- selection post. It is in view of the said position and also of
the total absence of prescription to constitute a selection committee and/or
W.P.(C) NO.15357/2009 12
to conduct such a test in Ext.P2 and in Ext.P11 G.O dated 5.11.1969 that
the petitioner would contend that the action on the part of the second
respondent in conducting the eligibility assessment test on 20.3.2009 as
part of filling up of posts in terms of Ext.P2 ie., for effecting promotion to
the post of Public Health Assistant as illegal and without jurisdiction.
11. As per Ext.P11 G.O dated 5.11.1969, the qualifications and
method of appointment to various posts under the Health Services
Department including Publication Assistant have been prescribed. Clause
3 thereunder reads thus:
III. Publication Assistant
1. Qualifications:-
i. Graduation;
ii Must have produced or published
pamphlets, articles or booklets or books in
Malayalam.
2. Maximum age limit for direct
recruitment:
25 years with relaxations as per rules.
3. Method of appointment:-
i) By promotion from the following categories
in the Health Services Department:-
1. Family Planning Health Assistant
W.P.(C) NO.15357/2009 13
2.Health Assistant
3.Public Health Worker
4.Lab Technician
(in the absence of candidates under item (i) above)
ii) By direct recruitment.
A perusal of Ext.P11 G.O and Ext.P2 circular would thus make it
abundantly clear that they did not provide for constituting any selection
committee or for conducting eligibility assessment test. It is apparently
because the post of Publication Assistant is a non-selection and non-
gazetted post as well. That apart, admittedly, the method of appointment is
by promotion from among the categories viz., 1. Family Planning
Assistant, 2. Health Assistant, 3. Basic Health Worker and 4. Laboratory
Technician under the Health Services Department. The last date fixed in
Ext.P2 circular for receipt of applications from the departmental hands was
30.6.2008. It was after about 9 months that selection committee was
constituted by the second respondent as per order No.EV3/90622/08/DHS
dated 13.3.2009. It was on the same date itself that Ext.P2 circular has
been issued requiring the petitioner to attend for an eligibility assessment
test on 20.3.2009. The said order constituting the committee was made
available by the learned Government Pleader. The contention of the
W.P.(C) NO.15357/2009 14
official respondents is that such a committee was constituted in terms of
the directions of this Court in Ext.P6 judgment. At the very outset, it is to
be noted that there was absolutely no basis for such contention and it can
only be a mis-construction of Ext.P6 judgment. The learned Government
Pleader had submitted that pursuant to the notification, the respondents
have received applications from various candidates including the petitioner
and therefore, the eligibility of the applicants was to be considered.
However, a scanning of the operative portion of Ext.P6 judgment, as
already extracted, would reveal that it carried no such direction. In fact, it
would reveal that taking note of the allegation of the petitioner and the
submission of the learned Government Pleader, a direction was issued to
the second respondent only to finalise the selection procedure in respect of
the post notified namely, Publication Assistant and to take appropriate
action to appoint a regular hand. It is precisely for complying with the said
direction that two months time was stipulated thereunder. Any such
direction by this Court can only be taken as a direction to comply the
selection process in accordance with law. Conspicuously, it contained no
direction to constitute a selection committee to conclude the selection
procedure. In short, the official respondents cannot be permitted to take
W.P.(C) NO.15357/2009 15
shelter under Ext.P6 judgment to justify the action in constituting the
selection committee and then conducting an eligibility assessment test in
case such a course of action is impermissible. In that view of the matter,
the propriety and illegality of constitution of the said selection committee,
rather, the action on the part of the respondents in conducting eligibility
assessment test for promotion to the post of Publication assistant are to be
decided taking note of the nature and status of the posts and the method of
appointment in terms of Ext.P2 and Ext.P11 G.O dated 5.11.1969.
Indisputably, the post of Publication Assistant is a non-gazetted and non-
selection post. Ext.P11 G.O, whereby the qualification and method of
appointment to the post of Publication Assistant were prescribed, did not
provide for constitution of a selection Committee and there is nothing in
Ext.P11 G.O as also in Ext.P2 circular to suggest that the said post of
Publication Assistant is a selection and a gazetted post and therefore, there
was no justification for constituting a selection committee. From the facts
obtained in this case, it is evident that the official respondents have
conducted a selection test and as part of the selection process, virtually,
conducted an essay writing competition. The highest scorer was held as
the fit person for the post of Publication Assistant and thus given a go-by
W.P.(C) NO.15357/2009 16
to seniority and fitness which should have been the basis for the selection.
In other words, they have conducted a selection test to effect promotion to
a non-selection and non-gazetted post. In the said circumstances, it is
contended by the petitioner that acceptance and recognition of such a
course of action adopted by the respondents would convert the post of
Publication Assistant as a selection post. The selection should have been
one based on seniority-cum-suitability basis going by Ext.P2 and Ext.P11
G.O dated 5.11.1969. To drive home the illegality in the said course of
action adopted by the official respondents, the petitioner relied on a Full
Bench decision reported in Suresh v. Manager, S.N.M College (2003 (3)
KLT 839). The Full Bench was dealing with the issue of promotion to the
post of Principal of an aided college under Mahatma University. Does a
provision providing for promotion to the post of Principal of a college on
the basis of seniority and is it fitness permit a comparative assessment was
the question considered and decided by the Full Bench. While answering
the said question, the Full Bench framed two other questions namely, what
is the meaning of seniority-cum-fitness and whether the management is
entitled to make a comparative assessment. Paragraph 19 in the said
decision assumes relevance and the same reads thus:
W.P.(C) NO.15357/2009 17
“What is the meaning of seniority-cum-fitness? Is the
Management entitled to make a comparative
assessment? The issue was considered by a Full
Bench of this Court in State of Kerala v. Rev.Mother
Provincial (AIR 1970 SC 2079). The Bench was
dealing with the issue in the context of an institution
administered by a religious minority. While dealing
with the provisions of the Kerala University Act, 1969,
it was inter alia observed at page 772 that “the test of
seniority-cum-fitness prescribed in the sub-section
does not mean that promotion is to be on the principle
of seniority subject to fitness which is the test adopted
for ‘non-selection’ posts in the civil service rules of the
state. Seniority-cum-fitness means that due and equal
regard should be paid both to seniority and to fitness,
and, since fitness is a matter of degree, it would
appear that a senior person can be overlooked in
favour of a junior who is demonstrably more fit for the
appointment that he is”. Thus, the Bench was of the
view that the provision for promotion on the basis of
seniority-cum-fitness permits the Management to select
W.P.(C) NO.15357/2009 18
a junior, who is demonstrably more fit than the senior.
In other words, the rule of comparative assessment
was applied. Since the Bench was examining the
whole issue in the context of the right of a minority
institution, various provisions of the Act were held to
be violative of Arts.19(1)(f) and 30(1) of the
Constitution. This decision was challenged by the
State before their Lordships of the Supreme Court to a
limited extent. So far as the finding regarding
provision for promotion to the post of Principal was
concerned, the question was not raised. The judgment
of the Full Bench was affirmed by the Supreme Court
in Mother Provincial’s case in so far as the challenge
levelled by the State was involved.
Paragraph 21 therein reads thus:
Normally, in view of the pronouncement by the two
Full Benches, the matter should be treated as
concluded. However, the correctness of the view taken
in these two Full Bench decisions was questioned on
the basis of the observations of their Lordships of the
Supreme Court in Lt.General Rajendra Singh
W.P.(C) NO.15357/2009 19
Kadyan’s case. These observations clearly indicate
that a senior person can be denied promotion when he
is found to be unfit. Not otherwise. Not on the basis of
comparative assessment.
It is evident from paragraph 19 that the principle of seniority subject to
fitness should be the criteria for `non-selection’ posts under the Civil
Services rules of the state. Paragraph 21 therein would reveal that a senior
person could be denied promotion when he is found to be unfit and not
otherwise. Relying on the said observations made by the apex court in Lt.
General Rajendra Singh Kadyan’s case, it was held by the Full bench
that the said observation would clearly indicate that the senior person
could be denied promotion only when he was found to be unfit based on
qualification and experience prescribed for the post and not otherwise and
furthermore, not on the basis of a comparative assessment. In the light of
the Full Bench decision, it can only be held that as far as a non-selection
post like Publication Assistant is concerned, the principle of seniority
subject to fitness should be the basis for effecting promotions. In other
words, a senior person is bound to be promoted unless he is found to be
unfit for the post. The learned counsel appearing for the petitioner has also
relied on the decision of the apex court in Valsala Kumari Devi v.
W.P.(C) NO.15357/2009 20
Director, Higher Secondary Education reported in 2007(4)KLT 494
(SC). It is held thereunder that the expression `subject to seniority and
suitability’ occurring in G.O dated 27.6.1990 did not mean a comparative
assessment of suitability and it means only the suitability for the particular
post and the suitability is related to the prescribed qualification and
requisite experience. The decision of a Division Bench of this court in
Gigimol v. Director of Higher Secondary Education reported in 2008(1)
KLT 278 has also been relied on. Evidently, as per the said decision, this
court observed that the words seniority and suitability could mean
seniority and qualification and requisite experience and it did not mean the
comparative assessment of suitability. Evaluation of the contentions raised
in this Writ petition in the light of the decisions referred above would
reveal that the comparative assessment of the eligibility made by the
committee constituted for the purpose of effecting promotion to the post of
Publication Assistant is beyond its jurisdiction and beyond the purview of
the rules governing the method of appointment. In that context, it is also
to be noted that Ext.P2 notification also did not provide for constitution of
a selection committee and for conducting a test. Therefore, after the
notification, the selection procedure should not have been changed. The
W.P.(C) NO.15357/2009 21
said contention is well founded in the light of the decision of the Apex
Court reported in K. Manjusree v. State of Andhra Pradesh (2008 (3)
SCC 512). Considering the nature and the status of the post of publication
assistant, viz., non-selection and non-gazetted, the principle of seniority
subject to fitness test should have been adopted by the official respondents
in the matter of promotion to the post of Publication Assistant. A scanning
of the contentions raised in the counter affidavit filed on behalf of the
second respondent would reveal that a committee was constituted for the
purpose of conducting a comparative assessment of the eligibility of the
candidates and according to the respondents, the third respondent had
secured highest marks in the eligibility assessment test. As already noted,
all the candidates, who appeared for the eligibility test were made to write
an essay on the subject mentioned above in twenty minutes. The very fact
that the third respondent secured the highest marks in the said eligibility
assessment test would reveal that the third respondent was preferred in the
matter of promotion based solely on his marks in the eligibility assessment
test. According to the respondents, as has been given under paragraph 5 of
the counter affidavit, mere service seniority could not be taken as the basis
for promotion to the post of Publication Assistant and it is required to
W.P.(C) NO.15357/2009 22
assess the eligibility of the candidates in presentation on facts, knowledge
of language clarity etc. Admittedly, a comparative assessment test was
held and as part of the same, the applicants were made to write an essay on
the subject mentioned above and valuation of the answer scripts were also
effected as part of the said assessment. Such a course of action is unheard
of even for filling up a selection post under the state service. If such a
procedure is given the seal of approval by this Court it would virtually
amount to permit a subordinate authority to deviate from the prescribed
rules without authority. There cannot be any doubt that Ext.P11 has been
issued by the government. Therefore, conducting of such a test which is in
fact would contrary to the procedures prescribed under Rule 28(b) (ii) of
part II of the KS & SSR cannot be upheld. Rule 28 (b) (ii) from Part II of
the KS & SSR reads thus:
Promotion and appointment by transfer to higher
posts according to seniority:-All other promotions or
appointments by transfer to higher posts shall, subject
to the provisions of these rules, and the special rules,
be made in accordance with seniority subject to the
person being considered suitable for the post.
Punishments other than censure awarded within a
W.P.(C) NO.15357/2009 23
period of three years immediately preceding such
promotion or appointment by transfer shall be taken
into account in determining the suitability of a person
for promotion or appointment by transfer.
The second respondent should have strictly adhered to the procedures for
promotion or appointment by transfer for filling up the above non-
selection post and at any rate, a deviation from the same, as has been done
in this case, cannot held as within the competency of the second
respondent and in conformity with the relevant rules. I am of the
considered view that an essay writing competition cannot be the basis for
filling up a non-selection and non-gazetted post. In short, the action on the
part of the second respondent in constituting a selection committee and
then conducting a comparative assessment after compelling the candidates
to write an essay on a particular subject for effecting promotion to a non-
selection and non-gazetted post is wholly unsustainable. No authority like
the 2nd respondent should be allowed to evolve his own method for
effecting promotion in a Department ignoring the prescribed procedures.
In the said circumstances, Exts.P7 and P10 are liable to be set aside.
Evidently, the third respondent was preferred in the matter of promotion
based on the valuation of the answer scripts. Since the very appointment of
W.P.(C) NO.15357/2009 24
the third respondent was made based on the same, it cannot be sustained.
Going by Ext.P10, the third respondent was appointed only on a
provisional basis. The selection process was initiated as per Ext.P2 for
effecting promotion on a regular basis against an existing vacancy. In fact,
the directions in Ext.P6 judgment was to conclude the selection procedure
initiated as per Ext.P2 and to effect a regular appointment. Indisputably, a
comparison of the service particulars of the petitioner and the third
respondent would reveal that the petitioner was senior to the third
respondent and admittedly, the senior most among the applicants, and the
post held by the petitioner carries a higher scale of pay than that of the post
held by the third respondent. There is no reason for holding the petitioner
as unfit on assessment of the qualifications prescribed for the post, as
admittedly, he satisfies all the qualifications prescribed as per Ext.P2 and
in Ext.P11. If the petitioner was unfit on the basis of assessment of the
qualifications prescribed for the concerned post, definitely, he would not
have been permitted to partake in the eligibility assessment test. Hence,
the very action in permitting the petitioner to participate in the aforesaid
test would tantamount to acknowledgment of possession of prescribed
qualification for the post by the petitioner. There was no reason for
W.P.(C) NO.15357/2009 25
preferring the third respondent based solely on the fact that he had secured
more marks in essay writing. The long and short of the discussions is that
the appointment of the third respondent effected allegedly in purported
compliance of Ext.P6 judgment of this court cannot be said to be a regular
selection and therefore, the appointment of the third respondent effected as
per Ext.P10 pursuant to Ext.P2 circular is unsustainable. In fact, the
counter affidavit filed on behalf of the third respondent virtually endorse
the views and contentions raised in the counter affidavit filed by the
second respondent. Even according to the third respondent, he was
appointed as per Ext.P10 solely based on the fact that he secured the
higher marks in the eligibility assessment test. The contention of the third
respondent that the petitioner is estopped from challenging the selection
procedure after having participated in the eligibility test held on 20.3.2009
cannot be upheld in the light of the position of law and in the peculiar
circumstances of the case. When conducting of such a test was wholly
impermissible, it should not have been conducted at all. That apart, the
petitioner has, at every point, objected to the very conduct of such a test.
Therefore, it cannot be said that he had participated in the test without any
demur. I am of the view that the action on the part of the official
W.P.(C) NO.15357/2009 26
respondents in appointing the third respondent based on his performance
in the aforementioned eligibility test held on 20.3.2009 disregarding the
aspect that the test in question is a non-selection and non-gazetted one is
illegal and arbitrary and liable to be set aside. For all these reasons,
Exts.P7 and P10 are set aside. In the absence of a contention in the
counter affidavit filed on behalf of the second respondent that the
petitioner was unfit for the post based on an assessment of the
qualifications prescribed for promotion to the post and considering the fact
that among the applicants admittedly, he was the senior most among all
candidates even among those in the higher scale of pay, the contention of
the petitioner that there was no reason for denying promotion to him as
Publication Assistant can be said to be well founded. Even in the absence
of quashment of Ext.P10, the third respondent could not have claimed for
continuation in the said post based on Ext.P10 as his appointment as per
the same was only a provisional promotion under Rule 31 (a) (i) of Part II
of KS & SSR. A Division Bench of this Court held in the decision
reported in 1994(1) KLT 603 relying on the decision of this Court in 1990
(1) KLT 176 and that of the Apex Court in AIR 1976 SC 537 that in a fit
and proper case, this Court, in exercise of jurisdiction under Article 226
W.P.(C) NO.15357/2009 27
can pass the order which the respondent should have passed had it properly
and lawfully exercised its jurisdiction. Undoubtedly, the post of
Publication Assistant is a non-selection, non-gazetted post. The petitioner
is the seniormost among the applicants and he holds a post that carries the
highest scale of pay. Evidently, he was not unfit for the post lest he would
not have been called for the aforementioned test. Since no comparative
assessment could have made the petitioner, by virtue of the aforesaid
aspects, should have been granted the promotion. In the circumstances, I
am of the view that the petitioner is entitled to get promotion to the post of
Publication Assistant with all consequential benefits with effect from
20.3.2009, the date on which the third respondent was granted promotion
to the said post. The official respondents are, therefore, directed to effect
regular promotion to the post of Publication Assistant with all
consequential benefits with effect from 20.3.2009. Since the provisional
appointment of the third respondent was made in blatant violation of the
specific directions in Ext.P6 judgment, it will be open to the Government
to recover the loss if any, caused on account of such appointment either
from the third respondent or from the person concerned who caused such
an appointment ignoring the specific directions in Ext.P6 after identifying
W.P.(C) NO.15357/2009 28
the person and affording him/her a proper opportunity of being heard.
The Writ Petition is disposed of as above.
(C.T. RAVIKUMAR, JUDGE)
spc
W.P.(C) NO.15357/2009 29
C.T. RAVIKUMAR, J.
JUDGMENT
September, 2010