IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 5TH JANUARY 2010 / 15TH POUSHA 1931 OP.No. 34434 of 2000(Y) ---------------------------------- PETITIONER: ------------------- B. VIDYADHARAN, AGED 38 YEARS, S/O. K. BALAN, PEON, INSTITUTE OF CO-OPERATIVE MANAGEMENT, THIRUVANANTHAPURAM, RESIDING AT PATHUVAL PUTHAENVEEDU, PUTHUPPALLI LANE, MEDICAL COLLEGE (P.O), THIRUVANANTHAPURAM. BY MR. M.R.RAJENDRAN NAIR, SENIOR ADVOCATE, ADVS. MR.M.R.SUDHEENDRAN, MR.M.R.HARIRAJ, SMT.REKHA VASUDEVAN, SMT.VINEETHA B. RESPONDENTS: ------------------------ 1. THE PRINCIPAL, INSTITUTE OF CO-OPERTIVE MANAGEMET, THIRUVANANTHAPURAM. 2. CHAIRMAN, MANAGEMENT COMMITTEE, INSTITUTE OF CO-OPERATIVE MANAGEMENT, KANNUR AND THIRUVANANTHAPURAM, THIRUVANANTHAPURAM. 3. THE CHAIRMAN, NATIONAL COUNCIL FOR CO-OPERATIVE TRAINING-3, SIRI INSTITUTIONAL AREA, AUGUEST KRANTI MARG, HAUZ KHAS, POST BAG NO.2, NEW DELHI-16. 4. THE DIRECTOR GENERAL AND EXECUTIVE VICE CHAIRMAN, NATIONAL COUNCIL FOR CO-OPERATIVE TRAINING, SIRI INSTITUTIONAL AREA, AUGUEST KRANTI MARG, HAUZ KHAS, POST BAG.NO.2, NEW DELHI – 16. 5. P.H. JOSE, RONEO OPERATOR, INSTITUTE OF CO-OPERATIVE MANAGEMENT, THIRUVANANTHAPURAM. 6. THE PRINCIPAL, INSTITUTE OF CO-OPERATIVE MANAGEMENT, KANNUR. O.P. NO. 34434/2000-Y: *ADDL.R7. IMPLEDED: 7. SUDHAKARAN, RONEO OPERATOR, INSTITUTE OF CO-OPERATIVE MANAGEMENT, KANNUR. *ADDL.R7. IMPLEADED VIDE ORDER DT. 11/07/05 IN I.A. 7303/2005. R1 BY MR.U.K.RAMAKRISHNAN, SENIOR ADVOCATE, ADVS. MR.E.K.MADHAVAN, MR.P.V.LOHITHAKSHAN, SMT.P.VIJAYAMMA, SMT.UMA GOPINATH, MR.V.KRISHNAMENON, R2 & R6 BY MR.ELVIN PETER P.J, R3 & R4 BY ADVS. MR.P.N.SANTHOSH, MR.S.R.AJITH, MR.S.D.ASOKAN, ADDL.R7 BY ADV.MR.C.K.SREEJITH. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 05/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P. NO. 34434/2000-Y: ORDER ONC.M.P. NO. 58834/2000 & I.A. NO.7304/2005 IN O.P. NO. 34434/2000-Y CLOSED 05/01/2010. SD/- S.SIRI JAGAN, JUDGE. APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE RELEVANT PORTION OF THE SERVICE RECRUITMENT AND PROMOTION RULES GOVERNING THE INSTITUTE OF CO-OPERATIVE MANAGEMENT. EXT.P.2: COPY OF THE ORDER NO. T-2-10/76 EST. (II) DTD. 11/11/1999 ISSUED BY THE R.1. TO THE PETITIONER. EXT.P.3: COPY OF THE REPRESENTATION DTD. 08/12/1999 SUBMITTED BY THE PETITIONER TO THE R.1. EXT.P.4: COPY OF THE REPRESENTATION DTD. 17/02/2000 SUBMITTED BY THE PETITIONER TO THE R.1. EXT.P.5: COPY OF THE REPRESENTATION DTD. 16/05/2000 SUBMITTED BY THE PETITIONER TO THE R.3. EXT.P.6: COPY OF THE RELIEVING ORDER NO. 11-25/96/PERS./ESTT. DTD. 17/05/2000 ISSUED BY THE R.6 TO THE R.5. EXT.P.7: COPY OF THE ADVERTISEMENT APPEARED IN MATHRUBHOOMI DAILY DTD. 04/06/2000. RESPONDENTS' EXHIBITS: EXT.R1.A: COPY OF THE ORDER DTD. 11/09/1996 OF THE CHAIRMAN, MANAGING COMMITTEE. EXT.R1.B: COPY OF THE ORDER DTD. 10/05/2000 ISSUED BY THE NCCT. EXT.R1.C: COPY OF THE ADVERTISEMENT PUBLISHED IN THE MATHRUBHUMI DAILY DTD. 04/06/2000. EXT.R1.D: COPY OF THE APPOINTMENT ORDER DTD. 04/12/2000 ISSUED BY THE MANAGEMENT COMMITTEE OF ICM KANNUR TO SRI. K. SUDHAKARAN. O.P. NO. 34434/2000-Y: EXT.R2.A: COPY OF THE ORDER DTD. 11/09/1996 ISSUED BY THE R.2. EXT.R2.B: COPY OF THE ORDER DTD. 05/10/1996 OF THE PRINCIPAL, I.C.M., KANNUR. EXT.R2.C: COPY OF THE ORDER DTD. 21/02/1997 ISSUED BY THE NATIONAL COUNCIL FOR CO-OP. TRAINING. EXT.R2.D: COPY OF THE ORDER DTD. 10/05/2000 ISSUED BY THE R.4. EXT.R2.E: COPY OF THE ORDER DTD. 04/12/2000 ISSUED BY THE CHAIRMAN, MANAGEMENT COMMITTEE, I.C.M., KANNUR. //TRUE COPY// P.A. TO JUDGE. Prv. S.SIRI JAGAN, J. ================== O.P.No. 34434 of 2000 ================== Dated this the 5th day of January, 2010 J U D G M E N T The petitioner commenced service as a Peon in the Co-operative Training College, which was later renamed as “Institute of Co- operative Management”, on 1.2.1980. The 5th respondent commenced service in the same cadre on 1.9.1980. As such, in the cadre of Peon the petitioner is senior to the 5th respondent. The 5th respondent was transferred to Kannur district, in the Institute of Co-operative Management, Kannur. According to the petitioner, taking into account the institutional seniority, the 5th respondent was given promotion as Jr. Roneo Operator in 1997. The petitioner contends that at that time, he was under the impression that it was only a temporary arrangement. But later on he came to understand that it was a promotion to a regular vacancy of Jr. Roneo Operator. According to the petitioner, as per Ext.P1 recruitment rules, the post of Junior Roneo Operator has to be filled up by promotion from Group D employees having 3 years' service and knowledge of Roneo work and the basis for promotion is seniority-cum-merit. According to the petitioner, the petitioner being senior to the 5th respondent, he ought to have been promoted to the vacancy to which the 5th respondent was promoted. Later on, on 11.11.1999 the petitioner was assigned the charge of o.p.34434/00 2 Roneo Operator at Thiruvananthapuram, since the incumbent was deputed to work as Typist-cum-Clerk in the NCUI Co-operative Education Field Project, Thiruvananthapuram, for one year. The petitioner sought ad hoc promotion to the said post by filing Ext.P3 representation, which was not considered. Although he filed another representation, Ext.P4, the same also did not evoke any response. While so, the 5th respondent was transferred from Kannur to Thiruvananthapuram to the post of Roneo Operator, the duties of which were being discharged by the petitioner. According to the petitioner, it was a malafide act to deny the petitioner promotion to the post of Junior Roneo Operator. To fill up the resultant vacancy at Kannur, the 6th respondent issued Ext.P7 notification in Mathrubhoomi daily on 4.6.2000, inviting applications for appointment to the post of Junior Roneo Operator, by direct recruitment. The petitioner submits that the recruitment rules do not provide for direct recruitment and the method of appointment is by promotion only, from Group D employees having the prescribed qualifications. According to the petitioner, since the petitioner is qualified to hold the post of Junior Roneo Operator, the action in taking steps for direct recruitment to the vacancy at Kannur is clearly without jurisdiction as the same is against the rules. It is under the above circumstances, the petitioner has filed this original petition seeking the following reliefs: o.p.34434/00 3 “i. Declare that the petitioner is entitled to be considered for promotion as Roneo Operator at least with effect from the date of promotion of his junior, the 5th respondent and to issue a writ of mandamus or other appropriate writ, order or direction commanding the respondents to promote the petitioner as Roneo Operator at least with effect from the date of promotion of the 5th respondent. ii. Issue a writ of mandamus or other appropriate writ, order or direction commanding the 1st and 2nd respondents to promote the petitioner in the vacancy of Roneo Operator in Thiruvananthapuram. iii. Issue a writ of Certiorari or other writ or direction quashing the steps taken by the respondents to fill the vacancy of the Roneo Operator in the Institute of Co-operative Management, Kannur and to issue a writ of mandamus or other appropriate writ, order or direction commanding the respondents to consider the petitioner for promotion as Roneo operator in the existing vacancy at Kannur. 2. Respondents 2 to 4 and 6 have filed a common counter affidavit, wherein it is stated that when a vacancy arose at Kannur, the petitioner being the senior most among the qualified employees of the Institute in the feeder category, was asked for willingness to be appointed as Junior Roneo Operator in ICM, Kannur. According to them, the petitioner declined that offer, since he wanted to remain at Thiruvananthapuram only. They contend that it is under the above circumstances, the 5th respondent, although junior to the petitioner, who agreed to serve at Kannur, was appointed by Ext.R2(a) dated 11.9.1996, pursuant to which, he was relieved as per Ext.R2(b) order. Thereafter, the 4th respondent gave approval for the appointment of the 5th respondent as Junior Roneo Operator as per Ext.R2(c) order dated 21.2.1997. Therefore, according the said respondents, there is o.p.34434/00 4 no merit in the challenge against the promotion given to the 5th respondent. 3. As regards the proceedings initiated for direct recruitment by Ext.P7, the contention of respondents 2 to 3 and 6 is that the eligible employees of the Institute were also eligible to be considered for appointment. The additional 7th respondent who also was an existing employee of the Institute having the prescribed qualifications, has been selected and appointed, is the contention raised. 4. The 1st respondent has also filed a counter affidavit denying the contentions of the petitioner. 5. I have considered the rival contentions in detail. 6. As far as the first prayer of the petitioner is concerned, I am of opinion that it is too late in the day for the petitioner to claim such a relief. The 5th respondent was promoted to the post of Jr.Roneo Operator at Kannur as early as on 11.9.1996. The petitioner was aware of that appointment also. He is challenging that appointment only by this original petition filed on 8.12.2000. Since the petitioner condescended to the appointment of the 5th respondent and slept over his rights for more than four years, I am not inclined to consider the claim of the petitioner, as against the 5th respondent for promotion to the vacancy, to which the 5th respondent was appointed. 7. However, it is a totally different situation as far as the o.p.34434/00 5 direct recruitment by Ext.P7 is concerned. As per Ext.P1 recruitment rules, the method of appointment is 100% by promotion from Group D employees having knowledge of Roneo work. Such employees should also have three years' experience in Group D post. Although the 1st respondent would claim that the petitioner does not have knowledge of Roneo work and therefore, not qualified, that is belied by the counter affidavit of respondents 2 to 4 and 6, in paragraph 6 of which, it is stated that when the vacancy arose at Kannur, willingness of the petitioner to be appointed to the post of Roneo Operator was asked for. If the petitioner was not qualified, there is no question of asking for his willingness. Even otherwise, the petitioner has stated that he had in fact worked as Roneo Operator in a vacancy in a deputation vacancy of one P.V.Gangadharan. Therefore, admittedly, when Ext.P7 notification inviting applications for direct recruitment was issued on 4.6.2000, the petitioner was duly qualified to be promoted to the post of Junior Roneo Operator. So also, the 7th respondent was an existing employee having the prescribed qualifications. Therefore, there was absolutely no reason for respondents 1 to 4 and 6 to resort to direct recruitment for filling up the vacancy which arose at Kannur on transfer of 5th respondent from Kannur to Thiruvananthapuram. As such, all steps initiated by Ext.P7 are against the recruitment rules applicable and therefore clearly without jurisdiction. Accordingly, o.p.34434/00 6 Ext.P7 and all steps taken pursuant thereto including the appointment of the additional 7th respondent are hereby quashed. The petitioner shall be promoted to the vacancy advertised by Ext.P7 with effect from the date when the 7th respondent was appointed to that post. However, the petitioner will not be entitled to monetary benefits attached to the post till today. But the petitioner would be entitled to all other service benefits attached to that post with effect from the date when the 7th respondent was appointed to that post. 8. It is submitted before me that the petitioner was later promoted as Junior Roneo Operator with effect from 7.5.2007. It would be open to respondents 1 to 4 and 6 to accommodate the 7th respondent in that vacancy, if he is the senior most Group D employee having the required qualifications for promotion to that post. The original petition is allowed as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== O.P.No. 34434 of 2000-Y ================== J U D G M E N T 5th January, 2010