IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 16TH DAY OF NOVEMBER 2011/25TH KARTHIKA 1933 WP(C).No. 9009 of 2010 (A) ------------------------------------ PETITIONER(S): --------------------- P.BINDU, OFFICE ATTENDANT GRADE-I, K.S.E.B. RESEARCH & DAM SAFETY DIVISION NO.II VAZHATHOPE, IDUKKI DISTRICT. BY ADVS.DR.K.P.SATHEESAN SRI.K.K.GOPINATHAN NAIR SRI.M.R.JAYAPRASAD SRI.P.MOHANDAS (ERNAKULAM) SRI.MATHEW SUNNY RESPONDENT(S): ------------------------- 1. KERALA STATE ELECTRICITY BOARD (K.S.E.B. IN SHORT), REPRESENTED BY ITS SECRETARY, VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM. 2. THE CHIEF ENGINEER (H.R.M), K.S.E.B., VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM. BY ADV. SRI.K.S.ANIL, SC, KSEB BY ADV. SRI.ASOK M.CHERIAN BY ADV. SRI.PULIKOOL ABUBACKER, SC, KSEB THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16-11-2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MJL WPC.NO:9009/2010 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : TRUE COPY OF THE ORDER NO.EBEW-680/96 DATED 27/07/1996 ISSUED BY THE 2ND RESPONDENT EXT.P2 : TRUE COPY OF THE ORDER NO.EB5(a)/55/98/(83) DATED 22/04/1999 ISSUED BY THE 2ND RESPONDENT EXT.P3 : TRUE COPY OF THE ORDER B.O.(FB)No.682/2007(PSI/101/2006) DATED 19/03/2007 ALONG WITH RELEVANT PAGES OF THE LONG TERM SETTLEMENT EXT.P4 : TRUE COPY OF THE NOTIFICATION NO.EB5/FCA/2009 DATED 22/09/2009 ISSUED BY THE 2ND RESPONDENT EXT.P5 : TRUE COPY OF THE REPRESENTATION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 06/01/2010 EXT.P6 : TRUE COPY OF THE JUDGMENT DATED 13/01/2010 IN W.P.(C) No.1075/2010 EXT.P7 : TRUE COPY OF THE ORDER NO.EB.5/OA-JFCA/CC/2010 DATED 06/03/2010 ISSUED BY THE 2ND RESPONDENT RESPONDENTS' EXHIBITS: NIL /TRUE COPY/ P A TO JUDGE MJL C.K.ABDUL REHIM, J. ------------------------------------------- W.P.(C) No.9009 of 2010 ------------------------------------------- Dated this the 16th day of November, 2011 J U D G M E N T ---------------------- The petitioner was appointed as 'Office Assistant Grade-II' in the service of the 1st respondent Board under Ext.P1, on compassionate grounds, on temporary basis as CLR worker. Subsequently her service was regularised as per Ext.P2. By virtue of a long term settlement arrived between the 1st respondent Board and its employees, it was decided to fill up 5% of the post of 'Junior Fair Copy Assistants' from among the employees of the Board who has the qualification of pass in SSLC or equivalent with Typewriting (Lower) both in English and Malayalam or its equivalent. Through Ext.P4 letter the 2nd respondent requested all the Chief Engineers, Deputy Chief Engineers, Executive Engineers and Project Managers to obtain and forward applications from eligible candidates working W.P.(C).9009/10-A -2- below the rank of 'Junior Fair Copy Assistants' who possess the requisite qualifications. 2. According to the petitioner, she had submitted application pursuant to Exhibit P4, since she had the requisite qualifications. The Board prepared a rank list of eligible candidates for appointment, in which the petitioner was included as Sl.No.2. It is stated that a total number of 12 vacancies were available in the cadre of 'Junior Fair Copy Assistants'. When the petitioner came to know that the respondents are taking steps to appoint two of her Juniors without appointing her, assigning the reason that the service put in by the petitioner as CLR worker cannot be reckoned, she submitted Ext.P1 representation before the 2nd respondent. Since the said representation was not considered she had approached this court in W.P(C). 1075/10. In Ext.P6 judgment the writ petition was disposed of directing the 2nd respondent to consider and to pass appropriate orders on the basis of the representation, in accordance with law within a time limit prescribed. Ext.P7 is the order issued by the 2nd respondent in compliance with W.P.(C).9009/10-A -3- the directions contained in Ext.P6 judgment. In Ext.P7 it is observed that, even though the Board has agreed for the decision in the long term settlement to fill up 5% vacancies of Junior Fair Copy Assistants from among employees of the Board having the requisite qualifications, the matter was referred to the Kerala Public Service Commission, for effecting changes in the method of recruitment. It is stated that the Board has taken a decision to fill up 5% vacancies through appointment by transfer, through the PSC. Therefore the Board has issued order No.B.O.(CM) No.3199/09 dt.17.12.2009 entrusting the matter with KPSC to select and advise suitable candidates for filling up the 5% quota from among qualified employees of the Board. Eventhough it is admitted that the Board has invited applications and received 37 applications from employees of the Board, it was subsequently decided to entrust the matter with the KPSC since the appointment by transfer is a direct recruitment. It is mentioned in Ext.P7 that since the appointment was entrusted with the KPSC the petitioner is free to apply as and when the Commission invites W.P.(C).9009/10-A -4- applications. 3. However, in Ext.P7 it is observed that, service of the petitioner in the post as CLR worker cannot be reckoned for the purpose of seniority and her seniority can be counted only from the date of regularisation. The petitioner is challenging the decision in Ext.P7 on two distinct aspects. According to the petitioner, the refusal to make appointment to the post of 'Junior Fair Copy Assistant', after preparation of the rank list, is illegal and irregular. It is also contended that the stand taken by the Board declining to count CLR service put in by the petitioner, is illegal and unsustainable. 4. In the counter affidavit of the 2nd respondent it is specifically mentioned that, the steps taken by the Board in inviting applications for appointment to the post of 'Junior Fair Copy Assistants', before getting concurrence from the Kerala Public Service Commission, was not in order and therefore no further steps for appointment was pursued. It is stated that the appointment under the long term settlement is an appointment by transfer and it need be W.P.(C).9009/10-A -5- done only through Public Service Commission. Referring to dictum laid by the Hon'ble Supreme Court in Madalayi Muthu Vs. State of Tamilnadu (2006 (6) SCC 558) it is contended that the petitioner is not entitled to claim seniority on the basis of her CLR service as Office Assistant Grade-II prior to her appointment in the regular service. 5. While considering the issue involved, I am of the considered opinion that the respondents cannot be blamed for not appointing the petitioner to the post of 'Junior Fair Copy Assistant', since it is revealed that the matter has been entrusted to the KPSC and that no appointment has been made by the Board. It is pertinent to note that the petitioner has no case that filling up of the 5% quota in the post of 'Junior Fair Copy Assistant' from among the existing employees is not an appointment by transfer, nor that PSC is the proper authority to make such appointment. Therefore I am inclined to uphold the view taken in Ext.P7 that the petitioner will be at liberty to apply and to compete for the appointment as and when PSC invites applications. 6. With regard to the decision in Ext.P7 that the CLR W.P.(C).9009/10-A -6- service cannot be reckoned for the purpose of seniority, it is noticed that the respondents are raising such a contentions based on legal position settled by the Hon'ble Supreme Court, that a person appointed temporarily to discharge a function in a particular post without recourse to the normal rule of recruitment cannot be said to be in service till his appointment is regularised. But in the case at hand, as pointed out by the learned counsel for petitioner, the appointment of the petitioner as CLR worker is given after finding that the petitioner is entitled for an employment in the 1st respondent Board under the compassionate appointment scheme. In Ext.P1 order through which the petitioner was given appointment as CLR worker it is clarified that, she was not given regular appointment only due to lack of vacancies and when posting to regular establishment is effected, the seniority in the post will be reckoned from the date on which she is reporting for duty as CLR worker. Coupled with this aspect, the petitioner also points out that, by virtue of the terms of the settlement (Ext.P3) the Board had agreed that the actual period of CLR W.P.(C).9009/10-A -7- service in the Board put in by those who were appointed under compassionate employment scheme will be reckoned as qualifying service for increment, weightage and other service benefits. Question remains as to whether the respondents are entitled to go back from the terms under which the appointment was made and from the terms of the settlement arrived with its employees. Eventhough a contention is made to the effect that the word “other service benefits” in clause 23 of Ext.P3 settlement will not take in the matter of seniority, I do not agree with such a contention in view of the specific terms of Exhibit P1 under which the petitioner was appointed as CLR worker. When it is clear that the petitioner was eligible for compassionate appointment and she was kept as CLR worker on temporary basis only for want of vacancy, it need be presumed that the petitioner was eligible for appointment from the date on which she had joined duty as CLR worker. Further, the terms of the appointment in Ext.P1 clarifies that the seniority to the post of which she will be regularised, will be reckoned from the date on which she report for duty as CLR W.P.(C).9009/10-A -8- worker. The dictum laid by the Hon'ble Supreme Court in the case cited above may be applicable as a general rule in the case of all appointments in public sector. But in the case at hand when there is specific understanding and an agreement to the contrary, I am of the view that the respondents cannot be permitted to go back from such terms of appointment or agreement arrived at. Therefore I am of the considered opinion that the service put in by the petitioner as CLR worker need be reckoned for all purposes in the service, including seniority, reckoning the period of service put in by her CLR worker in the 1st respondent Board. 7. In the result the writ petition is disposed of quashing Ext.P7 to the extent it holds that the service put in by the petitioner as CLR worker cannot be reckoned for the purpose of seniority. It is made clear that with respect to the appointment to the post of 'Junior Fair Copy Assistant', the petitioner will be at liberty to apply and to compete for appointment as and when applications are invited by KPSC. It is specifically declared that the petitioner will be entitled W.P.(C).9009/10-A -9- for such appointment and for all other service benefits with due seniority reckoned including the period she worked in the CLR service before her regularisation. 8. Needless to say that the 1st respondent shall take necessary steps for reporting vacancies if any available in the cadre of 'Junior Fair Copy Assistants' to be filled up from 5% quota earmarked for employees of Board, without any further delay. Sd/- C.K.ABDUL REHIM, JUDGE. /True copy/ P. A. to Judge okb