IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 18TH NOVEMBER 2010 / 27TH KARTHIKA 1932 WP(C).No. 17542 of 2005(L) --------------------------------- PETITIONER(S): ------------------- C.S.RAJAMBIKA, W/O.V.VIJAYAN, AGED 35, PROJECT ASSISTANT, KERALA STATE HANDICAPPED PERSONS WELFARE CORPORATION LTD., POOJAPPURAM, TRIVADNRUM-695 012, R/AT MEENAKSHI BHAVAN, KADIYAKONAM LANE, VAZHUTHAKONAM, KODUNGANOOR P.O., VATTIYOORKAVU, TRIVANDRUM-15. BY ADVS. SRI.M.R.HARIRAJ SMT.REKHA VASUDEVAN SRI.SURAJ.S SMT.VINITHA B. RESPONDENT(S): -------------------- 1. STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNMENT OF KERALA, DEPARTMENT OF SOCIAL WELFARE, SECRETARIAT, TRIVANDRUM. 2. THE KERALA STATE HANDICAPPED PERSONS', WELFARE CORPORATION LTD., REP. BY ITS MANAGING DIRECTOR, POOJAPPURA, TRIVADNRUM-695 012. R1 BY GOVT.PLEADER SRI.P.NANDAKUMAR R2 BY ADV. SRI.N.R.SURESH KUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/11/2010, ALONG WITH WPC. NO. 35219/2005, WPC.NO.13312/2008 THE COURT ON 18/11/2010 DELIVERED THE FOLLOWING: svs/ WP(C).No. 17542/2005(L) APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF ORDER NO.4507/2000/HPWC DATED 08/08/2000 ISSUED BY THE SECOND RESPONDENT. P2: COPY OF ORDER NO. 28/A/2003/HPWC DATED 27/10/2003 ISSUED BY THE SECOND RESPONDENT. P3: COPY OF GO(MS)22/2004/SWD DATED 29/01/2004. P4: COPY OF ORDER NO.28/A/2003/HPWC DATED 13/04/2004. P5: COPY OF GO (Rt)308/2004SWD ISSUED FOR THE FIRST RESPONDENT P6: COPY OF ORDER NO.65/2004/HPWC DATED 01/11/2004 P7: COPY OF REPRESENTATION DATED 22/11/2004. P8: COPY OF ORDER NO.65/04/HPWC DATED 24/05/2005 ISSUED BY THE SECOND RESPONDENT. P9: COPY OF REPRESENTATION DATED 31/05/2005 BEFORE THE SECOND RESPONDENT. P10: COPY OF ORDER NO.65/2004/HPWC DATED 08/06/2005. P11: COPY OF DRAFT SPECIAL RULES P12: COPY OF THE DETAILS OF STAFF UNDER SECOND RESPONDENT AS ON 30/06/2004. P13: COPY OF ORDER OF THE MANAGING DIRECTOR, BEARING NO. 4507/2000/HPWC DATED 16/03/2002. P14: COPY OF THE MINUTES OF THE 111TH MEETING OF THE BOARD OF THE SECOND RESPONDENT P15: COPY OF MINUTES OF 112TH MEETING OF THE BOARD OF THE SECOND RESPONDENT P16: COPY OF MINUTES OF THE 107TH MEETING OF THE BOARD P18: COPY OF MINUTES OF THE 114TH MEETING OF THE BOARD OF THE SECOND RESPONDENT P9: COPY OF MINUTES OF THE 115TH MEETING OF THE BOARD OF THE SECOND RESPONDENT ..........2/-... ...2... P20: COPY OF LETTER NO.332/2001/HPWC DATED 09/06/2004 ISSUED BY THE MANAGING DIRECTOR P21: COPY OF COMPLAINT DATED 16/09/2004 SUBMITTED BY THE PETITIONER TO THE MANAGING DIRECTOR BY HAND. P22: COPY OF THE LETTER NO.332/2001/HPWC DATED 16/10/2002 SENT TTO FIRST RESPONDENT BY THE MANAGING DIRECTOR P23: COPY OF COMPLAINT FROM MS.B.LAILA, ENDORSED TO THE PETITIONER BY THE MD ON 01/10/2002 P24: COPY OF BY COMPLAINT DATED 14/06/2004 ALONG WITH THE NOTICE FROM KERLA WOMEN'S COMMISSION P25: COPY OF GO (MS) 43/80/LA & SWD DATED 25/02/1980 P26: COPY OF THE ORDER NO.4345/2001/HWC DATED 29/12/2001 ISSUED BY THE MANAGING DIRECTOR. RESPONDENTS EXHIBITS: R2(a):COPY OF COMPLAINT DTD.12/07/2004, BEFORE THE HON'BLE MINISTER FOR SOCIAL WELFARE, KERLA, FILED BY THE COMPLAINANT. R2(b):COPY OF COMPLAINT DTD.12/07/2004, BEFORE THE SECRETARY TO SOCIAL WELFARE DEPARTMENT. R2(c):COPY OF COMPLAINT PREFERRED BY HANDICAPPED ASSOCIATION OF INDIA BEFORE THE M.D. OF 2ND RESPONDENT. R2(d):COPY OF FORWARDING LETTER DTD. 30/09/2004 R2(e):COPY OF COMPLAINT DTD. 17/11/2004, BY THE KERALA ORTHOPEDIC HANDICAPPED UNITED FRONT BEFORE THE KERALA LEGISLATIVE COMMITTEE. R2(f):COPY OF LETTER DTD.02/05/2005 ISSUED BY THE 1ST RESPONDENT R2(g):COPY OF THE COMPLAINT BY SUJATHA DTD. 17/09/2004 R2(h): COPY OF THE COMPLAINT DTD. 17/09/2004, PREFERRED BY RADAMMA AGAINST PETITIONER. R2(i):COPY OF LETTER DTD.10/02/2005 ISSUED BY THE 1ST RESPONDENT R2(j):COPY OF THE RESOLUTION DTD.28/07/2004, OF BOARD OF DIRECTORS OF R2. ...........3/-... ...3... R2(k):COPY OF FORWARDING LETTER DTD. 16/02/2005 ISSUED BY THE M.D OF 2ND RESPONDENT. R2(l):COPY OF LETTER DTD.17/03/2005, ISSUED BY 1ST RESPONDENT TO 2ND RESPONDENT, REQUESTING TO FILE A REPORT BEFORE THE GOVERNMENT. R2(m):COPY OF THE REPRESENTATION DTD.30/10/2003 SSUED TO THE 2ND RESPONDENT, BY KERALA SAMSTHANA VIKALANGA KSHEMA CORPORATION EMPLOYEES ASSOCIATION. R2(n):COPY OF THE ARTICLE 41 OF THE MEMORANDUM AND ARTICLES OF ASSOCIATION. R2(o):COPY OF OBJECTION DATED 13/11/2003, BEFORE THE CHAIRMAN R2(p):COPY OF RESOLUTION DTD. 17/11/1984 R2(q):COPY OF LEGAL OPINION DTD. 25/04/2005, ISSUED BY ADV.J.WILLIAM JOHN. /TRUE COPY/ P.A. TO JUDGE svs/ S.SIRI JAGAN, J. ================== W.P.(C).Nos.17542/2005, 35219/2005 & 13312/2008 ================== Dated this the 18th day of November, 2010 J U D G M E N T These three writ petitions relate to the same subject matter and are, therefore, heard together and disposed of by this common judgment. The rank of the parties and the exhibits referred to in this judgment are as obtaining in W.P.(C).No.13312/2008 unless otherwise specifically stated so. 2. The 2nd respondent, viz., the Kerala State Handicapped Persons' Welfare Corporation, is a Government company, shares of which, are owned by the Governor of Kerala. Ext.P1 is the memorandum of association of the company. By Ext.P2 Government order dated 25.2.1980, the Government specified the functions and duties of the Managing Director of the 2nd respondent company, which included the power to make appointments against sanctioned posts, with the sanction of the Board. The 2nd respondent invited applications from qualified persons for appointment to certain posts on contract basis by a notification dated 15.3.2000. The petitioner applied along with others. An interview was conducted on 3.7.2000 and 20.7.2000. Pursuant to that interview, the petitioner was selected for appointment as Clerk-cum-Accountant and, by Ext.P3 order, the petitioner was w.p.c.17542/05 etc. 2 appointed to that post on contract basis for a period of one year on 8.8.2000. The period of appointment was extended from time to time and ultimately, by Ext.P4 order dated 16.3.2002, the petitioner and the others appointed on contract basis were allowed to continue until further decision. 3. Subsequently, by Ext.P6 order dated 27.10.2003, the petitioner was absorbed into regular service of the 2nd respondent and was posted in the vacancy of L.D. Accountant in the scale of pay of Rs.3500-5230, which vacancy arose consequent upon the promotion of the incumbent of that post, viz., one Smt.Thankamoni. Therein, it was also stated that the petitioner would hold the charge of the Manager, MRST Centre and that she will be eligible for the scale of pay of Clerk- cum-Accountant as and when the scale of pay of equivalent post is approved by the Government. The absorption of the petitioner into regular service by Ext.P6 was approved by the Board of Directors of the company in their 112th meeting held on 13.11.2003, by the resolution contained in Ext.P7 minutes of the said meeting. 4. Earlier, in the 111th meeting of the Board of Directors held on 21.10.2003, the minutes of which are produced as Ext.P5, the Board adopted the following resolution also: w.p.c.17542/05 etc. 3 “6. Adoption of staff structure The Board discussed in detail the staff structure recommended by the sub- committee of the Board and resolved to approve the recommendation in total. It was also resolved to approve the present staff strength of 74 and authorize Managing Director to absorb qualified temporary staff in future vacancies. Managing Director is also authorized to prepare a Special Rule for the Company for the consideration of the Board.” In accordance with that decision, Ext.P8 draft special rules were prepared, which contained a post of Project Assistant, the method of appointment of which was either by direct recruitment or by transfer / redeployment from qualified employees of the 2nd respondent. The qualification prescribed for that post was bachelor's degree acquired after a regular course of study from any of the Universities of Kerala or from any university recognized by the University of Kerala. By Ext.P10 order dated 29.1.2004, the Government approved the creation of that post in the scale of pay of Rs.4000-6090, in which, the method of appointment was stated to be redeployment. While so, the 2nd respondent created a cell called, NHFDC cell, in the head office by Ext.P13 order dated 13.4.2004. The 2nd respondent constituted the NHFDC cell with the staff mentioned therein which included the petitioner as Project Assistant. By Ext.P14 minutes of the 115th meeting of the Board of Directors of the company held on 17.5.2004, the reconstitution of the NHFDC Cell by the Managing Director was w.p.c.17542/05 etc. 4 approved by the Board of Directors. 5. It appears that thereafter some complaints arose from some quarters regarding the appointment of the petitioner to the post of Project Assistant. By Ext.P16 communication dated 10.2.2005, the Government called for a copy of the resolution passed by the Board of Directors in this regard. In answer to the same, by Ext.P17 covering letter dated 16.2.2005, the 2nd respondent forwarded Ext.P15 copy of the resolution of the Board of Directors in its 116th meeting held on 28.7.2004. While the matters stood so, by Ext.P18 dated 24.5.2005, the Managing Director of the 2nd respondent directed that the petitioner be transferred to the Soubhagya Department Store, Thiruvananthapuram, of the 2nd respondent on working arrangement to look after the matters relating to the accounts of that establishment. The petitioner challenged the same by filing W.P.(C). No.17542/2005, in which, by interim order dated 10.6.2005, this Court directed that the petitioner shall be permitted to continue as Project Assistant in the head office till 23.6.2005. Thereafter, the stay order was modified by order dated 22.8.2005 as follows: “In the light of the pleadings so far made by the parties including the stand taken by the respondents in the affidavit filed on 16.8.2005, counsel for the petitioner submits that petitioner will go and work as directed in Ext.P8 order and, therefore, interim order need not continue. This submission is recorded. Post this writ petition for further consideration after holidays.” While that writ petition was pending, the petitioner was again w.p.c.17542/05 etc. 5 transferred by Ext.P21 dated 26.8.2006, to carry out the activities involved in the implementation of NPRPD scheme in the districts of Kasargod, Palakkad and Kollam, on a temporary basis until further orders. While so, some of the employees of the 2nd respondent filed W.P.(C).No.35219/2005 against the continuance of the petitioner as Project Assistant. While the said writ petitions were pending, by Ext.P23 order dated 15.4.2008, the petitioner was reverted and posted as Clerk-cum-Accountant on consolidated pay basis and this writ petition is filed in the above circumstances, seeking the following reliefs: “i. Quash Ext.P23 and the records leading to the same by the issuance of a writ of certiorari or other appropriate writ order or direction. ii. To issue a writ of mandamus or other appropriate writ order or direction commanding the respondents to grant the petitioner annual increments from the due dates and to draw and disburse arrears of pay and allowances to the petitioner with interest @ 18% per annum from the dates on which the same fell due till the date of actual payment.” 6. The contention of the petitioner is that although originally the petitioner was appointed on contract basis in the 2nd respondent company, after selecting her in a selection process conducted for the purpose, the petitioner was absorbed in the regular service of the 2nd respondent as early as on 27.10.2003, as L.D. Accountant, which has been approved by the Board of Directors by Ext.P7, which decision has not been interfered with by anybody. Thus having been absorbed into regular service validly, going by Ext.P8 draft service rules, the w.p.c.17542/05 etc. 6 petitioner was eligible to be appointed by transfer to the post of Project Assistant, the creation of which was approved by the Government by Ext.P10, and, therefore, since the appointment of the petitioner as Project Assistant is perfectly valid and proper, the petitioner could not have been reverted from that post. The petitioner also points out that as of now, the petitioner is the only available employee in the services of the 2nd respondent qualified to be appointed to the post of Project Assistant, she being the only graduate available, insofar as the only other two employees having degree qualification are occupying higher or equivalent posts. 7. A counter affidavit has been filed by the 2nd respondent, wherein they would disown every orders passed by them in favour of the petitioner. They would submit that the initial appointment of the petitioner itself was irregular insofar as the post was not sanctioned by the Government. They would further submit that Ext.P6 order is also not valid, insofar as since the initial appointment was irregular, the petitioner was not eligible for absorbed in regular service. According to them, the earlier order of the Managing Director, viz., Ext.P13, was cancelled by the subsequent Managing Director in view of the Government directions in that regard. They contend that by Ext.R2 (d), the 1st respondent Government had directed them to terminate the service of the petitioner. But, later on, by Ext.R2(e), that order w.p.c.17542/05 etc. 7 was kept in abeyance for the time being. 8. I have considered the rival contentions in detail. 9. At the outset I note that the initial appointment of the petitioner on contract basis was after conducting a normal selection process by inviting applications from the public issuing an advertisement for the said purpose and conducting a selection from among the applicants. Therefore, the petitioner is not a person who has come through the back door in the service of the 2nd respondent by influencing anybody. She was so appointed as early as on 8.8.2000. Nobody ever objected to her appointment or continuance. Taking into account the petitioner's long temporary service on contract basis, the then Managing Director absorbed the petitioner into regular service by Ext.P6 order dated 27.10.2003. The Board of Directors of the 2nd respondent approved that action in the 112th meeting of the Board of Directors held on 13.11.2003, the minutes of which has been produced as Ext.P7, by the following resolution: “2. Review & Action Taken report The Board noted the Action taken Report presented by Managing Director and approved the promotion given to Smt.S.Thankamony, L.D. Accountant to U.D.Accountant in the retirement vacancy of Shri. Gopinathan Assary and the appointment of Smt.C.S.Rajambika in the consequent vacancy subject to up gradation to the scale of Clerk-cum- Accountant to which she was originally selected as and when an equivalent post is sanctioned to the Corporation.” w.p.c.17542/05 etc. 8 Till date, that appointment and the approval by the Board of Directors have not been interfered with by anybody. 10. While so, Ext.P8 draft service rules have been framed by the 2nd respondent, which included the post of Project Assistant as well. The method of appointment to that post and the qualification as obtaining Ext.P8 are follows: 5. Project Assistant 1. Direct Recruitment 2. Transfer/Redeployment from qualified employees. Bachelors degree acquired after a regular course of study from any of the universities of Kerala or from any university recognized by the university of Kerala. 11. Admittedly, the petitioner possesses the qualifications prescribed by the draft special rules for the post. Although the counsel for the 2nd respondent would try to argue that there was two other persons having qualifications for the post, it is not disputed before me that those persons are holding either equivalent or higher posts. In any event, those two persons have not chosen to challenge the appointment of the petitioner as Project Assistant. That would go to show that the petitioner is the only qualified employee in the service of the 2nd respondent for appointment to the post of Project Assistant. 12. The reason now put forward by the 2nd respondent for reverting the petitioner as Clerk-cum-Accountant is that the petitioner had not completed the period of probation in the post of L.D. Accountant to which, she was absorbed by Ext.P6, without completing w.p.c.17542/05 etc. 9 which the petitioner could not have been considered for appointment to the post of Project Assistant in view of Rules 5 and 6 of Ext.P8 draft rules. The contention is that the petitioner was absorbed in the post of L.D. Accountant on 27.10.2003 and therefore without completing the period of probation of two years, the petitioner could not have been appointed to the post of Project Assistant by Ext.P13 dated 29.1.2004. Rules 5 and 6 read thus; “5. Probation: Every person appointed to any of the categories by any method of appointment shall from the date on which he/she joins duty shall be on probation for a period of two years. 6. Seniority: Seniority of an employee in any category shall be counted from the date of appointment in the regular vacancy irrespective of the service rendered as temporary, contract or daily wage basis. Note: No persons shall be promoted to a higher post unless he/she completes his/her probation in the post in which he/she is working then.” (underlining supplied) Note to Rule 6 contemplates completion of probation only for promotion and not for appointment by transfer or by re-deployment. As such, the argument of the learned standing counsel for the 2nd respondent that because of the said reason, the petitioner's appointment as Project Assistant is irregular does not appeal to me. 13. The counsel for the 2nd respondent raises a further contention that in Ext.P10 order, by which the Government had approved the creation of the post of Project Assistant, the method of w.p.c.17542/05 etc. 10 appointment has been prescribed as re-deployment. Deployment to the post of Project Assistant can be only from a post carrying the same scale of pay, is their contention. According to the counsel, since the petitioner was holding the post of L.D.Accountant, not in the same scale of pay as that of Project Assistant, re-deployment could not have been effected as done in Ext.P13 order. Although the argument has some merit, in the particular facts of this case, I am not inclined to countenance the same. As I have held earlier, the petitioner is the only qualified employee of the 2nd respondent now available to be appointed as Project Assistant. Ext.P8 draft special rules permit appointment by transfer or re-deployment. It is settled law that where special rules have not yet been prescribed, draft rules can be adopted for appointment subject to finalisation of the draft rules. I am of opinion that there cannot be any inviolable rule that only the person having the same scale of pay can be re-deployed to a post. There can be circumstances where qualified persons can be redeployed to man a post having higher scale of pay. 14. Further there is no fault on the part of the petitioner in the entire proceedings. Everything has been done by the 2nd respondent and its Managing Director by themselves. The petitioner's absorption into regular service by Ext.P6 order has also been approved by the Board of Directors. Nobody has till date, annulled the appointment and w.p.c.17542/05 etc. 11 approval. Therefore, the petitioner is a member of regular service of the Corporation, who can aspire for appointment to the post of Project Assistant in accordance with Ext.P8 draft special rules insofar as she is the only person qualified available in the service of the 2nd respondent to man that post. By Ext.P16 letter, the Government wanted the Managing Director of the 2nd respondent to report whether the appointment of the petitioner has been approved by the Board of Directors and to forward a copy of the resolution passed in this regard. Instead, what has been forwarded is Ext.P15 minutes of the meeting of the Board of Directors held on 28.7.2004. I am of opinion that what should have been forwarded is Ext.P14 minutes of the meeting of the Board of Directors in the 115th meeting held on 17.5.2004, by which, Ext.P13 order by which NHFDC cell had been reconstituted with the petitioner as the Project Assistant. That very action was irregular and it appears that somebody wanted to somehow or other get the appointment of the petitioner annulled for the reasons which are not yet disclosed. 15. In Ext.P15, what has been stated is that the promotion given to the petitioner by the former Managing Director has been decided to be cancelled and it has been decided to recover the benefits given to the petitioner in that post. Ext.P15 does not refer to the approval granted by the Board of Directors in Ext.P14. On the other w.p.c.17542/05 etc. 12 hand, what is stated in Ext.P15 is that in the 115th meeting of the Board of Directors dated 17.5.2004, a special rule has been framed and placed as item No.5, which has not been approved by the Board of Directors, which is directly contradictory to Ext.P14 minutes, wherein, in respect of item No.5 it is specifically stated thus: “5. Special Rules. The draft Special Rules presented by Managing Director was discussed thoroughly and approved. Managing Director was authorized to submit it to Government for approval” As such, the entire action of the 2nd respondent in the matter does not inspire confidence in me. I am of opinion that insofar as Ext.P6 has been validly issued, which has been approved by the Board of Directors, by Ext.P7, and the same has not been cancelled, the petitioner could not have been now reverted as Clerk-cum- Accountant, that too, on contract basis. I am of opinion that the petitioner being the only qualified person available in service there is nothing illegal or improper in her appointment as Project Assistant and cannot now be interfered with. Respondents 1 and 2 cannot toy with the career of the petitioner after having selected her in a proper selection and having continued in service for 10 years, which happens to be the best part of her life. If the actions taken by respondents 1 and 2 themselves are in accordance with their understanding of law as obtaining at the relevant time, they cannot now cancel those actions w.p.c.17542/05 etc. 13 on the ground that the Government had not approved the creation of the original post of Clerk-cum-Accountant. Much water has flown under the bridge after her appointment in 2000 as Clerk-cum-Accountant. As such, the respondents cannot interfere with the appointments of the petitioner at this distance of time, especially since no fault has been alleged against the petitioner in the matter. Accordingly, the writ petition is allowed. Ext.P23 is quashed. It is declared that the petitioner has been validly appointed as L.D. Accountant by Ext.P6 and as Project Assistant by Ext.P13. The petitioner shall be allowed to continue as Project Assistant in the 2nd respondent's establishment as a regular member of service of the 2nd respondent. The petitioner would also be entitled to all consequential service benefits including monetary benefits, which shall be paid within two months. In view of the decision in W.P.(C).No.13312/2008, it is not necessary to deal with W.P.(C). Nos. 17542/2005 and 35219/2005 separately and they are disposed of in terms of the judgment in W.P.(C). No. 13312/2008. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge w.p.c.17542/05 etc. 14