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 matterOP 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
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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
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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
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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