IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI WEDNESDAY, THE 25TH MARCH 2009 / 4TH CHAITHRA 1931 WP(C).No. 20388 of 2008(B) -------------------------------------- PETITIONER(S): ---------------------- BALAKRISHNAN V.A. S/O. AYYAPPAN, AGED 44 YEARS, PADINHARE VELANPOTTA HOUSE, KINIVALLOOR, PARALI POST, PALAKKAD. BY ADV. MR.U.BALAGANGADHARAN RESPONDENT(S): ------------------------- 1. STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT LABOUR DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM 2. THE EMPLOYMENT OFFICER DISTRICT EMPLOYMENT EXCHANGE, CIVIL LINES PALAKKAD DISTRICT. 3. THE DISTRICT MEDICAL OFFICER CIVIL LINES, PALAKKAD. 4. SMT. DEVAYANI, PART TIME SWEEPER PUBLIC HEALTH CENTRE,THACHAMPARA, PALAKKAD. 5. SHRI CHELLAPPAN. P, PART TIME SWEEPER, PUBLIC HEALTH CENTRE, KUNNATHUR, PALAKKAD. 6. SMT. SAROJINI. C, PART TIME SWEEPER , DISTRICT HOSPITAL, PALAKKAD. R1 TO R3 BY GOVERNMENT PLEADER SMT.SUDHA DEVI R5 BY ADV. MR.P.K.MOHANAN(PALAKKAD) R4 BY ADV. MR.K.JAJU BABU MR.T.R.SADEESAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO. 20388/2008-B APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE CERTIFICATE NO.7729/08/07 DATED 24/03/2008 ISSUED BY THE TAHSILDAR, PALAKKAD TO THE PETITIONER. EXT.P2: COPY OF THE RELEVANT EXTRACT OF S.S.L.C. BOOK OF THE PETITIONER. EXT.P3: COPY OF THE EMPLOYMENT EXCHANGE REGISTRATION CARD ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER, BEARING NO.9883/90. EXT.P4: COPY OF THE DISCHARGE CERRTIFICATE DATED 08/08/2002 ISSUED BY THE MANAGER, CATTLE FEED PLANT, MALAMPUZHA TO THE PETITIONER. EXT.P5: COPY OF THE DISCHARGE CERTIFICATE DATED 10/02/2005 ISSUED BY THE EXECUTIVE ENGINEER, COMMAND AREA, DIVISION NO.1, PALAKKAD (CAMP: KINAVALLOOR, PARALI, PALAKKAD) TO THE PETITIONER. EXT.P6: COPY OF THE INTIMATION RECEIVED BY THE PETITIONER FROM 3RD RESPONDENT VIDE NO.A3-16389/2007 DATED 07/03/2008. EXT.P7: COPY OF THE ORDER NO.A3-16389/2007 DATED 19/05/2008 OF THE 3RD RESPONDENT. EXT.P8: COPY OF THE INTIMATION RECEIVED BY THE PETITIONER FROM 3RD RESPONDENT, VIDE NO.D2/7190/2008 DATED 05/06/2008. RESPONDENT'S EXHIBITS: EXT.R2(a): COPY OF THE ORDER SEEM 1/85. EXT.R2(b): COPY OF THE RULE (3) OF RULE 14(C) OF KSSR. EXT.R4(a): COPY OF THE CASTE CERTIFICATE DATED 04/02/2008 ISSUED BY THE TAHSILDAR, OTTAPALAM TO THE 4TH RESPONDENT. //TRUE COPY// P.S. TO JUDGE Rs/ V.GIRI, J ------------------- W.P.(C).20388/2008 -------------------- Dated this the 25th day of March, 2009 JUDGMENT Petitioner, who belongs to the Scheduled Caste community, applied for appointment to the post of Part Time Sweeper. He is registered with the Employment Exchange, Palakkad, and his name was sponsored by the second respondent for the post of Part Time Sweeper. Vacancies were reported by the District Medical Officer, the third respondent. According to the petitioner, he should have been considered under the quota reserved for scheduled casts. Petitioner was considered at the interview, but he was not considered in the quota reserved for scheduled casts. According to the petitioner, respondents 4 to 6 were appointed in the quota reserved for scheduled caste and that if the petitioner had been considered in the said priority category, he, having got more marks than respondents 4 to 6, should have been preferred to them. W.P.(C).20388/2008 2 2. Second respondent has filed a counter affidavit wherein after admitting that the petitioner has registered in his office, Town Employment Exchange, Palakkad, it is contended that the petitioner was not sponsored for being considered in the quota reserved for scheduled caste essentially because he had earlier been sponsored thrice under the priority category. It is contended as follows in paragraph 6 of the counter affidavit filed on 20.11.2008. The petitioner's name had been sponsored for the post of Regular part Time Night Watchman under the Principal, C.M.Government Music College, Palakkad on 31.3.2005 and for Regular Part Time Sweeper post under the District Judge, Palakkad on 2.1.2007. On both the occasions the name of the petitioner has been considered for vacancies reserved for SC Priority. The petitioner was given W.P.(C).20388/2008 3 3 P.T.Regular Submission inclusive of the submission given to him on 29.1.2008 under District Medical Officer (Health) for Regular Part Time Sweeper vacancy. As per State Employment Exchange Minutes 1/85 after giving three Part Time Regular submissions, the name of the registrant shall be kept in dormancy till such time all candidates on the Live Register having five year seniority have been given three such chances of submission.” 3. The fourth respondent alone has appeared, though other respondents have been served. The stand taken by the fourth respondent is to the effect that she was considered in the quota reserved for scheduled caste and she had secured more marks than the other respondents. If at all any appointment is to be disturbed, it must be that of the person who had secured lesser marks, it is contended. Petitioner admittedly belongs to the W.P.(C).20388/2008 4 scheduled caste community. Therefore, there is no reason why he should not have been considered in the quota reserved for scheduled caste. In these circumstances, the case of the petitioner is eligible to be considered afresh. 4. Accordingly, writ petition is disposed of directing the third respondent to consider the case of the petitioner, as if he has been sponsored by the second respondent in the quota reserved for the scheduled caste, to the post of Part Time Sweeper. I take note of the contention of R4 that she is a widow with two daughters and difference in the marks stated to have been secured by the petitioner, ie, 37 and that secured by the fourth respondent, ie, 36.5 is quite marginal. If any person who has secured lesser marks than R4 has been appointed, and if the disturbance of any such person is necessary to accommodate the claim of the petitioner then, obviously only the person who had W.P.(C).20388/2008 5 lesser marks amongst R4 to R6 should be disturbed. There is a dispute as to whether R5 and R6 have actually been appointed in the quota reserved for scheduled castes. Obviously if they have not been appointed in the quota reserved for scheduled castes, but have been appointed in the open category and they have secured lesser marks than the petitioner. Then, service of such person who has secured less marks is liable to be terminated. This is a matter for verification by the third respondent. 5. The third respondent shall also consider whether there are any further vacancies available in the post in question or is likely to arise in the near future. In the peculiar facts and circumstances where the petitioner seems to had been excluded from consideration for not fault of his and in circumstances where R4 to R6 also are needy persons, third respondent shall strive to W.P.(C).20388/2008 6 accommodate the claim of the petitioner, if his name is found to be acceptable after the process of verification to be undertaken in pursuance of this judgment without disturbing any of the incumbents as such. But if it is found that the petitioner's claim is liable to be accepted in the light of the observations made herein above, then, it is necessary that the more eligible person should be appointed. In such circumstances, third respondent shall not refrain from taking action in terminating the services of the least eligible among the persons concerned. The entire process as directed above, shall be completed within four months from the date of receipt of a copy of this judgment. V.GIRI, Judge mrcs