IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR THURSDAY, THE 25TH FEBRUARY 2010 / 6TH PHALGUNA 1931 WP(C).No. 5043 of 2010(E) ------------------------- PETITIONER(S): --------------- DHANASREE D., D/O. LATE DHARMAPUTHRAN T.B., RAJBHAVAN HOUSE, KADUKKARA, EDAVATTOM P.O., THALAYOLAPARAMBU, VAIKOM, KOTTAYAM DISTRICT, PIN-686 605. BY ADV. SRI.P.B.SAHASRANAMAN SRI.T.S.HARIKUMAR SRI.K.JAGADEESH RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY ITS PRINCIPAL SECRETARY, EXCISE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE KERALA STATE BEVERAGES (MANUFACTURING AND MARKETING) CORPORATION LTD., P.B.NO.2263, SASTHAKRIPA OFFICE COMPLEX, SASTHAMANGALAM, THIRUVANANTHAPURAM-695 101, REPRESENTED BY ITS MANAGING DIRECTOR. BY SRI. ANTONY MUKKATH, GOVERNMENT PLEADER FOR R1 SRI. ELVIN PETER P.J. SC FOR R2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: jma C.T. RAVIKUMAR, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P. (C) No. 5043 OF 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 25th day of February, 2010 J U D G M E N T The petitioner's father Sri. T.B. Dharmaputhran was working as Labelling Worker under the 2nd respondent Corporation. He died-in-harness on 24.6.2002. Subsequently, the petitioner was appointed as Labelling Worker under the second respondent as per Ext.P4 dated 23.1.2010. It is evident from Ext.P4 that on getting a provisional appointment, the petitioner had joined duty as Labelling worker under the second respondent on 30.9.2009 and the said provisional appointment was regularised as per Ext.P4 dated 23.1.2010. Subsequently, the petitioner came to know that in the case of one Anumol who was also given appointment under the dying-in-harness scheme the second respondent, as per Ext.P5 order dated 17.8.2009, posted her as a Lower Division clerk. Feeling that the petitioner was arbitrarily discriminated by the second respondent in the matter of appointment under the dying-in-harness scheme in as much as despite being better qualified than the said WPC.5043 of 2010 : 2 : Anumol, she was given appointment only in a lower post as a Labelling worker the petitioner submitted a representation before the second respondent. Besides raising grievances against the said appointment, the petitioner points out that even without disturbing the appointment of Smt. Anumol, the petitioner can given a better employment by granting category change. It is also pointed out that several posts in higher categories are available and she is qualified to be accommodated against any of such vacancies. However, the said request of the petitioner was rejected as per Ext.P6 order dated 4.2.2010. Though the petitioner has produced the said order during the pendency of the Writ Petition he has not chosen to challenge the same in this proceedings. The prayer in the Writ Petition is as hereunder: 1. To issue a writ, direction or order in the nature of mandamus commanding the respondents to retain the petitioner, either by posting or transfer or appointment, in the post of Asst. Grade II or such other higher post, taking into consideration her educational qualification forthwith. 2. It is evident from the contentions raised by the petitioner that the claim of the petitioner is founded on the WPC.5043 of 2010 : 3 : facts that vacancies are available in the post of Assistant Grade II or such other higher posts under the second respondent and that she is qualified for appointment to such higher posts. She is a graduate in Mathematics and obtained her MBA (Finance) from Mahatma Gandhi University. According to the petitioner, the action on the part of the respondents in ignoring her better claim and preferring the aforesaid Anumol who was only a matriculate for appointment in higher post cannot be construed as a proper and fair exercise of discretion. It is submitted that if even such power is vested on the respondents to exercise a power according to discretion such discretion has to be exercised in a fair and proper manner. In this case, it is submitted that the discretion has not been exercised in a fair and just manner and therefore it calls for interference. 3. In this case, the aforesaid Anumol is not made a party. True that her appointment is not under challenge. Obviously, the claim of the petitioner is based on the said appointment granted in favour of the said Anumol. A perusal of Ext.P5 would reveal the circumstances under which the said Anumol WPC.5043 of 2010 : 4 : was given such an appointment. The petitioner is also not having a case that the action on the part of the first respondent in relaxing the rigour of the rules for granting appointment to the said Anumol is illegal and without competence. In fact, it is well within the power of the first respondent to effect such relaxation. That apart the said question of legality or otherwise in the matter of exercise of the power by the first respondent in the case of said Anumol need not be gone into this case as her appointment is not under challenge in this case. Merely because in the case of said Anumol, the rigour of the rules were relaxed, would not and could not enable the petitioner to stake a claim for getting employment by category change under the second respondent. Availability of vacancies in higher posts for which she is qualified also would not earn eligibility or entitlement to stake such a claim. Now, the prayer of the petitioner for category change was rejected as per Ext.P6. However, the petitioner has not chosen to challenge the said order dated 4.2.2010 in this Writ Petition. The existence of vacancies in the higher posts cannot be a reason for issuing a direction to grant WPC.5043 of 2010 : 5 : category change to the petitioner who got appointment under the dying-in-harness scheme, in a higher post. Usually, such appointments are made only against a post in the lower rung, in a department where direct recruitment is a mode of appointment. The petitioner has accepted the appointment as Labelling Worker on provisional basis and evidently, her appointment was subsequently regularized with effect from 30.9.2009, as per Ext.P4. In these circumstances, I am of the view that this Writ Petition is devoid of merits and accordingly it is dismissed. (C.T. RAVIKUMAR, JUDGE) jma