IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 29TH FEBRUARY 2008 / 10TH PHALGUNA 1929 OP.No. 5510 of 1998(E) -------------------------------- PETITIONER: ------------------- ANITHA JANARDHANAN, TYPIST GRADE II, GOVERNOR'S SECRETARIAT, THIRUVANANTHAPURAM. BY ADV. SRI.K.R.B.KAIMAL (SR.). RESPONDENTS: ----------------------- 1. THE SECRETARY TO GOVERNOR OF KERALA, GOVERNOR'S SECRETARIAT, RAJ BHAVAN, TRIVANDRUM. 2. SRI. K. MOIDEENKUTTY, ASSISTANT GRADE II, GOVERNOR'S SECRETARIAT, NOW ON DEPUTATION AS PERSONAL ASSISTANT, SHRI K.P.A. MAJEED M.L.A., LEGISLATORS' HOSTEL, TRIVANDRUM. BY GOVERNMENT PLEADER SMT. N. SUDHA DEVI, ADV. SMT.MARY BENJEMIN. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 15/02/2008,THE COURT ON 29/02/2008 DELIVERED THE FOLLOWING: ORDER ON C.M.P. NO. 9913/1998 IN O.P.NO. 5510/1998-E DISMISSED 29/02/2008. SD/- T.R.RAMACHANDRAN NAIR, JUDGE. APPENDIX PETITIONER'S EXHIBITS : EXT.P.1: COPY OF THE ORDER GS1.2865/87 DTD. 31/07/1987 OF R.1. TO THE PETITIONER. EXT.P.2: COPY OF THE REPRESENTATION OF PETITIONER TO R.1. DTD. 21/03/1989. EXT.P.3: COPY OF THE ORDER NO. GS1.2889/89 DTD. 31/07/1999 OF R.1. TO THE PETITIONERS. EXT.P.4: COPY OF THE MEMO NO. GS5-4500/89 DTD. 30/0/1989 OF R.1. TO THE PETITIONER. EXT.P.5: COPY OF THE ORDER CS1.2897/92 DTD. 15/07/1999 OF R.1. TO THE PETITIONER. EXT.P.6: COPY OF THE ORDER GS1.357/98 DTD. 07/02/1998 OF R.1. EXT.P.7: COPY OF THE ORDER NO. GS1.1494/96 DTD. 18/03/1998 OF R.1. EXT.P.8: COPY OF THE ORDER NO. GS1-1030/98 DT. 01/04/1998 ISSUED BY THE R.1. EXT.P.9: COPY OF THE ORDER NO. GS1-277/2002 DT. 23/01/2002 ISSUED BY THE R.1. EXT.P.10: COPY OF THE ORDER NO. GS1-904/2002 DTD. 28/11/2002 ISSUED BY THE R.1. RESPONDENT'S EXHIBITS: EXT.R.1.A: COPY OF THE REPRESENTATION SUBMITTED BY PETITIONER DTD. 19/03/98. EXT.R.1.B: COPY OF THE ORDER OF THE 1ST RESPONDENT DTD. 01/04/98. EXT.R.1.C: COPY OF THE ORDER OF THE 1ST RESPONDENT DTD. 01/04/2002. EXT. R2.A: COPY OF THE ORDER DTD. 30/06/2006 OF THE R.1. //TRUE COPY// prv. T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - O.P.NO.5510 of 1998-E - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 29th day of February, 2008. JUDGMENT The writ petition projects the grievance of the petitioner against the appointment of second respondent as Assistant Grade II in the Governor's Secretariat by direct recruitment, without adherence to the relevant rules. The defence raised by the second respondent is that he had been appointed after following a fair selection procedure and hence there is no violation of the relevant rules. 2. The relevant facts are the following: The petitioner commenced service as a Peon in the Governor's Secretariat on 2.2.1985. She was a graduate even while she entered service. By Ext.P1, she was appointed as Telephone Operator under Rule 9(a)(i) of the Kerala State and Subordinate Service Rules. That appointment was in the temporary vacancy caused due to the appointment of Smt. P. Jayanthi, Telephone Operator as Assistant Grade II under Rule 9(a)(i) of the Rules. The petitioner points out that she had also acquired the qualification required for appointment as Typist Grade II in the Secretariat/Governor's Secretariat and had also passed Account Test (Lower) and Secretariat Manual Test. Later, by an order dated OP 5510/1998 -2- 31.7.1989 (Ext.P3), she was appointed as Typist Grade II. She has got a further case that there were vacancies in the cadre of Assistant Grade II simultaneously and she had filed Ext.P2 representation seeking appointment in an existing vacancy. Ext.P3 will show that she was provisionally appointed as Typist Grade II in the vacancy caused due to the promotion of one P. Annajan as Typist Grade I in a leave vacancy. It appears that she had been pursuing her request for appointment as Assistant Grade II which was practically refused by Ext.P4, wherein she was informed that she cannot claim appointment as Assistant Grade II as a matter of right and her request cannot be considered, as the posts of Peon and Telephone Operator do not form feeder category to the post of Assistant Grade II. She was also informed that if she is not willing to work as L.D. Typist, she is free to opt to revert to her substantive appointment as Peon. She had chosen to continue as Typist Grade II and later her appointment as Typist Grade II was regularised and her probation in that regard was declared with effect from 2.8.1991 as per Ext.P5. 3. According to the petitioner, she is the seniormost Typist Grade II possessing graduate qualification and going by the method of appointment to the post of Assistant Grade II, Typist is a feeder category for appointment as Assistant Grade II. The minimum qualification for Assistant Grade II is OP 5510/1998 -3- graduation which is satisfied by her. It is accordingly pleaded that in the vacancy of Assistant Grade II arose on 5.2. 1998, she was the rightful claimant for appointment. But ignoring her claims, by Ext.P6 the second respondent was appointed. The order Ext.P6 shows that he was provisionally appointed as Assistant Grade II under Rule 9(a)(i) of the General Rules, in the existing vacancy. 4. As far as the second respondent is concerned, he started his career in the Governor's Secretariat as a Telephone Operator and he was also appointed as per Ext.P3. Ext.P3 shows that the second respondent was provisionally appointed as Telephone Operator when the petitioner was appointed as Typist Grade II. 5. The main grounds of attack are that Ext.P6 is violative of Articles 14 and 16 of the Constitution of India, that even though Telephone Operator is not a feeder category for Assistant Grade II, when other Telephone Operators have been appointed as Assistants, the petitioner cannot be discriminated. It is also pointed out that as per the Special Rules, Typists in Governor's Secretariat is a feeder category for appointment as Assistant Grade II and she being the seniormost graduate Typist, she was entitled to be appointed as Assistant Grade II. It is also contended that the second respondent is only a Telephone Operator and he is junior to the petitioner OP 5510/1998 -4- and is not in the feeder category for appointment as Assistant Grade II as per the Special Rules. 6. Before adverting to the contentions, a reference to the relevant rule is necessary. Special Rules for Kerala Secretariat Subordinate Service as amended from time to time governs the appointment in Governor's Secretariat. Assistant Grade II is category No.8 under Rule 4 of the Rules. The method of appointment to the said post as provided under the above rules is extracted below: “Direct Recruitment, or Appointment from Assistants Grade II of the other Departments of the Secretariat or Typists employed in the Governor's Secretariat.” The minimum qualification for Assistant Grade II is graduation. 7. The second respondent justifies his appointment in the following manner in his counter affidavit. According to him, the post of Assistant Grade II is not a promotion post and it is an entry cadre. There is no feeder category for the said post. Typist Grade II is only a feeder category of Typist Grade I and not to Assistant Grade II. According to him, he was appointed as Assistant Grade II on the basis of a written test and interview conducted on 21.10.1991 pursuant to memo dated 7.10.1991. The petitioner OP 5510/1998 -5- also participated in the said test. After the test and interview a rank list was drawn and he was rank No.4 and the petitioner's rank was far below. It is also pointed out that rank Nos.1 to 3 were appointed earlier and it was in the 4th vacancy that arose after the publication of the rank list that he was appointed, he being the 4th in the rank list. As regards the academic qualification of the second respondent, he is a post graduate in M.A. (Economics), post graduate diploma in Public Relations and Journalism, had completed LL.B. and had passed Account Test (Lower). 7. Next I may deal with the stand taken in the counter affidavit filed on behalf of the first respondent, since it assumes some significance and it throws light into the manner in which the appointment was made. It has been explained that the petitioner, while working as Telephone Operator, had requested by Ext.P2 for a posting as Assistant Grade II, since she found it difficult to attend night duty and on humanitarian consideration she was appointed as Typist Grade II. The second respondent was appointed as a Telephone Operator in the vacancy caused by the appointment of the petitioner as Typist Grade II. It is admitted that the Special Rules for Kerala Secretariat Subordinate Service applies to the Government Secretariat and the method of appointment in the category of Assistant Grade II is as mentioned earlier. There is an important admission that Assistant Grade II OP 5510/1998 -6- is not a promotion post of either Telephone Operator or Typist Grade II. But qualified Telephone Operators have been considered for direct recruitment as Assistants. Their appointment as Assistants is based on “suitability” and not on the basis of the seniority alone. The manner in which the selection is made, is decided by the Governors who hold office at different times. It is also stated that in the case of direct recruitment, qualified employees of Kerala Raj Bhavan in the lower categories and dependents of Kerala Raj Bhavan employees were given preference. 8. In regard to the conduct of written test and interview, it is admitted in the counter affidavit that when two vacancies of Assistants arose in October, 1991 a select list of three persons were prepared and approved and in the selection conducted in 1991, though the petitioner as well as the second respondent had appeared for the test, they did not qualify. This version is totally contrary to the stand taken by the second respondent in his counter affidavit. Then it is pointed out that in February 1998 when a fresh vacancy arose, the second respondent put forward a claim for appointment in that vacancy and “the appointing authority on consideration found him suitable for appointment as Assistant and accordingly Ext.P6 order was issued.....................” The appointment of the second respondent was under OP 5510/1998 -7- the category of direct recruitment and not as promotion and therefore there is no question of any violation of seniority position of the petitioner. 9. Hence, it has become clear that when written test and interview was conducted in the year 1991, even though the petitioner and second respondent participated in the selection process, they were not found suitable and were not included in the rank list. In 1998 when a fresh vacancy arose, the second respondent was straight away appointed without having any process of selection as was done in 1991. 10. In view of the conflicting stand taken by these two respondents in their respective counter affidavits, this court after hearing both sides, passed an order on 19.10.2007 directing the first respondent to clarify as to whether there was a rank list in existence as claimed by the second respondent in his affidavit. The rank list also was directed to be produced. Accordingly, the first respondent filed an additional affidavit on 7.11.2007. Ext.R1(a) is the true copy of the select list prepared in the year 1991. In the remarks column of Ext.R1(a), it is stated thus: “ Committee found the following candidates suitable for appointment as Assistant/Telephone Operator and they are ranked as indicated below: 1. Santhi S. 2. Uthara N.S. 3. Bibeena R.” OP 5510/1998 -8- It is evident therefore that neither the petitioner nor the second respondent have been included in the rank list as claimed by him. Therefore, it is further clear that it is not on the basis of any ranking in the said list, that he was appointed in the vacancy arose in the year 1998. The first respondent has clearly averred in the additional counter affidavit that the appointment of second respondent as per Ext.P6 in the year 1998 was not on the basis of the select list drawn during 1991. It is also stated in para 9 that the temporary promotion of the petitioner on 1.4.1998 as Assistant Grade II was also not on the basis of the select list drawn during 1991. The first respondent denied the averment of the second respondent in his counter affidavit that he was ranked as No.4 in the select list drawn during the year 1991. 11. Learned counsel for the second respondent raised an argument then that he had challenged the select list in O.P.No.3545/1995 which was disposed of on 30.10.2003 and as the ranking in Ext.R1(a) itself was the subject matter of challenge in the said writ petition, the first respondent was right in considering him for the vacancy in the year 1998 without a fresh selection process. The judgment does not show that this court had interfered with the ranking in the rank list, in favour of the second respondent. It is a short judgment which is extracted below: OP 5510/1998 -9- “Petitioner sought promotion as Assistant Grade II. During the pendency of the original petition he was already promoted. Petitioner claims retrospective promotion. It is for him to approach the first respondent. Without prejudice to such liberty, this original petition is closed.” Obviously, therefore, he cannot rely upon the said judgment to contend that he was entitled for appointment based on Ext.R1(a), as he was never included in it. 12. On specific direction to produce the relevant files regarding the appointment of the second respondent, the learned Govt. Pleader made available the said records leading to Ext.P6. It reveals that the second respondent had been submitting representations from the year 1996 to consider him for appointment as Assistant Grade II in an arising vacancy, the earliest representation being dated 12.3.1996. The last representation is dated 23.1.1998 in which also the prayer was similar. The records reveal that at the first instance when his claim was considered, it was noted that his claim can be considered as and when a vacancy arises, along with other applications. At that time, he was on deputation as Personal Assistant to the Government Chief Whip. On a subsequent occasion also, the same stand was taken when he represented further, which is evident from the file. A vacancy arose on 5.2.1998 when Smt. S. Santhi, Assistant OP 5510/1998 -10- Grade II was promoted as Assistant Grade I. The files show that the second respondent was ordered to be appointed in that existing vacancy and accordingly Ext.P6 order was passed. Significantly, the files do not reveal that any written test or interview was conducted prior to his appointment. It is not based on the selection procedure conducted in 1991 also. 13. Learned counsel for the second respondent vehemently argued that the second respondent and the petitioner had participated in the selection process for the two vacancies, conducted in the year 1991 and even if they were not included in the rank list, the first respondent has clearly considered the marks obtained by the second respondent for assessing his suitability and for making the selection and the petitioner who had obtained a lower ranking than him, has no real grievance against the selection. Learned counsel placed strong reliance upon the said selection process to justify his appointment in the year 1998. It is pointed out that going by the Special Rules, one of the methods is direct recruitment. The petitioner being only a Typist Grade II, she is not entitled for promotion also, as at that time there were other qualified Typists senior to her in the same service. It is therefore submitted by the learned counsel that the appointment of the second respondent as per Ext.P6 and the appointment later on granted to the petitioner as Assistant Grade II are clearly on the OP 5510/1998 -11- basis of the selection process held in the year 1991. 14. I cannot accept the contentions of the second respondent for more reasons than one. Firstly, it is evident that in Ext.R1(a) rank list, only three persons were included, as they alone were found suitable. There was no waiting list wherein he figured as rank NO.4 or the petitioner figured as rank No.5. The definite stand of the first respondent, as noted above shows that the selection and appointment of the petitioner in 1998 was not based on the selection process held in the year 1991. Hence, the second respondent cannot bank upon his participation in that selection process as a circumstance justifying his appointment in the year 1998. Further, in 1991 there were only two vacancies and three persons were included in the rank list. The vacancy which arose in the year 1998 is a new vacancy which was not there when the selection process was held in the year 1991. Once a rank list had exhausted, it cannot be said to be live. If at all he had participated in the selection process, that will not help him to gain appointment in a vacancy which arose on 5.2.1998. Therefore, the said argument of the learned counsel is not sustainable at all. Learned counsel for the second respondent placed heavy reliance on the judgment of a Division Bench of this court reported in Rajesh v. Union of India (2002 (1) KLT 492) to support her argument. My attention was drawn to para 10 of the said OP 5510/1998 -12- judgment to contend that a fair procedure was adopted here. The said paragraph is extracted below: “ Apex Court in N.T. Bevin Katti v. Karnataka Public Service Commission and others (AIR 1990 SC 1233) held that candidates who applied and undergone written test or selection process have a vested right for being considered for selection in accordance with the terms and conditions contained in the advertisement. Candidates have right to be considered in accordance with the terms and conditions set out in the advertisement. It is true that the candidates have no absolute right in the matter. We may indicate that even then he has got a right to be treated fairly. It is one of the fundamental rights of our Constitution that every citizen is protected against arbitrariness on the part of the officers. In Shankarson Dash v. Union of India (1991 (3) SCC 47) the Constitution Bench of the Apex Court held as follows: “Even if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates do not acquire any indefeasible right to be appointed against the existing vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bonafide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted.” As held by the Apex Court in Delhi Transport Corporation v. DTC Mazdoor Congress (1991 (1) Suppl. SCC 600) right to public employment and its concomitant right to livelihood receive their succour and nourishment in the canopy of the protective umbrella of Arts. 14, 16(1)(g) and 21. Aforementioned judicial pronouncements positively show that even though persons who have been included have no right to get appointment they have always got a legal right to challenge the arbitrary action if any, on the part of the appointing authority in cancelling the selection or recruitment process.” Actually, the said dictum will not have any application to sustain his OP 5510/1998 -13- appointment. It was emphasised by the Division Bench relying upon a decision of the Apex Court that candidates have no absolute right in the matter of selection and even then he has got a right to be treated fairly. By no stretch of imagination, the said principle can justify the appointment granted to the second respondent here. As pointed out by the learned Senior Counsel for the petitioner, any method of recruitment shall conform to the principles of articles 14 and 16 of the Constitution of India. No person can be favoured with an appointment under the guise that it is a direct recruitment. When the method of direct recruitment is resorted to, it involves a fair procedure for selection and appointment where candidates get opportunity to participate and compete each other. In this case, no such procedure is seen adopted. He was straight away appointed when the vacancy arose based on his representation. Even though it is averred in the counter affidavit filed by the first respondent that he was found suitable, admittedly no procedure had been adopted to evaluate the respective merits of various candidates so as to assess the suitability. Even though in the counter affidavit of the first respondent, it is stated that in the case of direct recruitment, qualified employees of Kerala Raj Bhavan in the lower categories and dependents of Kerala Raj Bhavan employees were being given preference, the same can be done only by giving equal opportunities OP 5510/1998 -14- for all willing candidates to compete each other, so as to assess the suitability and eligibility. Having not done so, the stand taken by the first respondent in paragraph 8 of the counter affidavit that the appointing authority “on consideration found him suitable for appointment” lacks any credence. 15. The principles are well settled as to how in the matter of public employment the State and its authorities are expected to act. It is well settled that in the matter of public employment the State and its authorities are bound to conform to the principles of Articles 14 and 16 of the Constitution of India. They have to conform to the terms of the relevant rules. Reference may be made to the decision of the Apex Court in Union Public Service Commission v.Girish Jayantilal Vaghela (2006 (2) SCC 482). While considering the necessity to conform to the principles enunciated in Article 16 of the Constitution and the relevant statutory rule, their Lordships held in para 12 as follows: “The main object of Article 16 is to create a constitutional right to equality of opportunity and employment in public offices. The words “employment or appointment” cover not merely the initial appointment but also other attributes of service like promotion, age of superannuation, etc. The appointment to any post under the State can only be made after making a proper advertisement inviting applications from eligible candidates and holding of selection by a body of experts or a specially constituted committee whose members OP 5510/1998 -15- are fair and impartial through a written examination or interview or some other rational criteria for judging the inter se merit of candidates who applied in response to the advertisement made.” It is therefore quite important that the appointing authority cannot make appointment to a particular post governed by statutory rules de hors the constitutional scheme and the well accepted principles governing regular process of selection. When Article 16 of the Constitution provides for equal opportunity for all citizens in the matter relating employment or appointment in any office under the State, the appointing authority cannot favour a particular candidate to confer the appointment. Such methods have been deprecated as back door appointments, since what is involved is only a pick and choose method by which a person is offered appointment without initiating any process of selection, after allowing others to compete. Judged by these standards, I am of the definite view that the appointment made herein as per Ext.P6 is totally in violation of the Special Rules and the principles enunciated in Article 16 of the Constitution of India. The State cannot act like a private employer who may have absolute liberty to appoint a person of its choice. The scenario herein is totally different. 16. For another reason also, the method adopted herein cannot be sustained. As noted already, the first respondent has got a case in the counter affidavit as far