IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 7TH FEBRUARY 2011 / 18TH MAGHA 1932 WP(C).No. 16372 of 2007(Y) -------------------------- PETITIONER(S): --------------- 1. KERALA BHASHA INSTITUTE EMPLOEES ASSOCIATION, THIRUVANANTHAPURAM, REP.BY ITS VICE PRESIDENT, M.RAJENDRAN, CLERICAL ATTENDANT, KERALA BHASHA INSTITUTE, TRIVANDRUM. 2. DAISY JACOB, U.D.CLERK, STATE INSTITUTE OF LANGUAGES, THIRUVANANTHAPURAM. BY ADV. SRI.N.DHARMADAN, SENIOR ADVOCATE SMT.D.P.RENU RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, CULTURAL AFFAIRS (D) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. STATE INSTITUTE OF LANGUAGES, THIRUVANANTHAPURAM, REPRESENTED BY ITS CHIEF EXECUTIVE THE DIRECTOR. 3. DIRECTOR, STATE INSTITUTE OF LANGUAGES, THIRUVANANTHAPURAM. 4. SAIDALAVI, HEAD CLERK, VIJNANAMUDRANA PRESS, NALANDA, THIRUVANANTHAPURAM. ADV. SRI.P.K.VIJAYAMOHANAN FOR R2&3 SRI.S.MUHAMMED HANEEFF FOR R4 GOVT. PLEADER SHRI.SANDESH RAJA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11.1.2011, ALONG WITH WPC NO. 29585/2010 THE COURT ON 7.2.2011 DELIVERED THE FOLLOWING: W.P.(C).No. 16372/2007 APPENDIX PETITIONER(S)' EXHIBITS P1. COPY OF THE SENIORITY LIST. P1A. COPY OF THE LETTER DTD.25.4.06 BY P2. P2. COPY OF THE REQUEST DTD.30.3.07. P3. COPY OF THE ORDER DTD.30.3.07. P4. COPY OF THE LETTER DTD.8.5.07 BY P2. P5. COPY OF THE PETITION DTD.10.5.07. P6. COPY OF THE ORDER DTD.22.9.94 BY R2. P7. COPY OF THE STATEMENT BY R2. P8. COPY OF THE JUDGMENT IN W.P.(C).No. 23171/04 OF THIS COURT. P9. COPY OF THE ORDER DTD.4.6.07. P10. COPY OF THE ORDER DTD.24.9.07 BY R2. P11. COPY OF THE MINUTES HELD ON 20.8.07. P12. COPY OF THE ORDER DTD.13.9.95. P13. COPY OF THE MEDICAL CERTIFICATE DTD.12.5.05. P14. COPY OF THE ORDER DTD.21.11.06 BY R2. P15. COPY OF THE MINUTES OF THE MEETING DTD.25.11.82. P16. COPY OF THE PETITION DTD.24.4.98. P17. COPY OF THE LETTER DTD.4.9.05. P18. COPY OF THE EXTRACT OF THE MINUTES. P19. COPY OF THE DECISION DTD.24.11.09. P20. COPY OF THE OFFICE NOTE. P21. COPY OF THE ORDER DTD.20.8.10. P22. COPY OF THE SENIORITY LIST DTD.31.3.02. P23. COPY OF THE ORDER DTD.18.11.2009. RESPONDENT(S)' EXHIBITS: R2A. COPY OF THE ORDER DTD.2.3.96. B. COPY OF THE ORDER DTD.2.3.96. C. COPY OF THE LETTER DTD.18.8.07 FROM P1. D. COPY OF THE GOVT. ORDER DTD.10.7.84. E. COPY OF THE ORDER DTD.1.3.07. F. COPY OF THE APPENDIX FORMING PART OF Ext.P3. G. COPY OF THE ORDER DTD.10.9.98. H. COPY OF THE ORDER DTD.31.3.03. R4A. COPY OF THE ORDER DTD.17.9.07 BY R3. sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P(C) Nos. 16372/2007 and 29585/2010 ================== Dated this the 7th day of February, 2011 J U D G M E N T W.P.(C) No.16372 of 2007 is filed by an Association of Employees of the Kerala State Institute of Languages (hereinafter referred to as the Institute) and one of its members against the action of the Director of the Institute in appointing the 4th respondent to the post of Cashier in the Institute, overlooking the superior claim of the second petitioner and the other writ petition is filed against the action of the Director in ordering recovery of conveyance allowance paid to the same petitioner, in recognition of her physical disability. Since some allegations in support of the prayers are common, these two writ petitions are being disposed of by this common judgment. 2. The Kerala State Institute of Languages is an autonomous, albeit, Government owned, institution. The institute has under it, a separate unit called Vijnana Mudranam Press (hereinafter referred to as the Press). The 2nd petitioner was originally appointed as a Lower Division Compositor (referred to as Lower Division Clerk by the petitioners) in the Press on 19-10-1974. She was promoted as a Warehouseman-cum-Type Store keeper (referred to as Upper Division Clerk by the petitioners) in 1986. The 2nd petitioner lost her husband and suffered some disability in an accident on account of which, she w.p.c.16372/07 & cc. 2 requested for a posting as a clerk in the Institute. The then Director of the Institute, by Ext. P12, sought sanction from the Chairman of the Governing Body of the Institute to create a supernumerary post of Lower Division Clerk in the Institute and to accommodate the 2nd petitioner in that post. Apparently in anticipation of sanction, the 2nd petitioner was so accommodated. The said action of the Director was ratified by the Governing body which met on 11-1-1996 and the 2nd petitioner was appointed in a regular vacancy, with effect from 11-1-1996, by Ext R2(a) order of the Director. In that order it was stipulated that the service of the 2ndpetitioner in the Press will not be reckoned for any service benefits and her pay and allowances would be protected. In the same meeting of the Governing Body, it was decided to appoint one Sri. S.Sreekantan Nair, working in the Press, also as Lower Division Clerk in the Institute and by Ext. R2(b) order of the Director dated 2-3-1996 his appointment by transfer as Lower Division Clerk in the Institute was also regularised with effect from 11-1-1996. In that order, it was made clear that he will be the junior-most in the category of L.D.C. in the Institute and his service in the Press will not be reckoned for any service benefits, but his present pay would be protected. He was later promoted as U.D. Clerk, Head Clerk and Junior Superintendent, although there was no sanctioned posts of Head Clerk and Junior Superintendent in the service of the Institute. w.p.c.16372/07 & cc. 3 The 2ndpetitioner was later promoted as Upper Division Clerk in January 2000. Although the 2ndpetitioner requested for promotion as Head Clerk and Junior Superintendent, as in the case of Sri.Sreekanatan Nair, she was not given such promotion. By Ext. R2(e) order dated 1-3-2007, the said Sri.Sreekantan Nair was given a further promotion as Cashier. According to the petitioner, this was done when he was facing disciplinary action for very serious charges as evident from Ext. P16 representation of the 1st petitioner and against the said proceedings the said Sri. Sreekantan Nair had approached this Court and obtained an order of stay. It appears that the said Sri. Sreekantan Nair was working as Junior Superintendent, which would show that although the said Sri. Sreekantan Nair, was junior to the 2nd petitioner, he was given two promotions as Head Clerk and Junior Superintendent,while the petitioner remained as a U.D. Clerk. Even Ext. P1(a) request of the 2ndpetitioner for promotion as Head Clerk in the vacancy of promotion of Sri. Sreekantan Nair as Junior Superintendent was also not considered. 3. Thereafter the 2nd petitioner filed Ext. P2 representation seeking promotion to the post of Cashier in the vacancy which would arise on the retirement of Sri. Sreekantan Nair. In the same, she stated that she understands that the posts of Head Clerk and junior Superintendent have not been sanctioned for the Institute. This fact w.p.c.16372/07 & cc. 4 was also noticed by the Government in Ext P3 communication dated 30-3-2007 to the Institute, in which, it was stated that in such posts the present incumbents are permitted to continue as supernumerary till they retire. The 1st petitioner also by Ext P5 representation brought this fact to the attention of the Director of the Institute. By the same, the 1st petitioner also demanded that in the vacancy of cashier arising in the Institute, the 2nd petitioner be appointed and to desist from giving charge of posts in the Institute to employees of the Press. While so, the 4th respondent who was working in the Press, was given charge of the post of Cashier in the vacancy which arose on 31-5-2007, on the retirement of Sri. Sreekantan Nair. It is against the said action of respondents 2 and 3, the petitioner had filed W.P. (C) No. 16372 of 2007. While the same was pending, Ext. P10 order was issued by the Director, fixing scale of pay in the post of Cashier for the 4th respondent, wherein it is stated that the 4th respondent was appointed as Cashier in the Institute by Order No. E1/1905/07/SIL dated 17-9- 2007. Under the above circumstances the petitioner got the writ petition amended to include a challenge against Ext. P10 and Order No. E1/1905/07/SIL dated 17-9-2007 referred to therein also. As per the amended writ petition the petitioner seeks the following reliefs: “(a) issue a writ of Mandamus or other writ or order or direction directing the respondents 1 to 3 to promote the 2nd petitioner as Head Clerk/Junior Superintendent/Cashier having regard to her long service and qualifications. w.p.c.16372/07 & cc. 5 (b) issue a writ of Certiorari or other writ or order quashing the order granting charge of the post of ashier (sic) to the 4th respondent; (c) issue a writ of mandamus or other writ or order or direction directing the respondents 1 to 3 to give charge of the post of cashier to the petitioner who is fully qualified for promotion as cashier under the Special Rules w.e.f. 31.5.07; (d) issue a writ of prohibition or other writ or direction for restraining the 4th respondent from continue the charge of Cashier from 31.5.207 (sic) when Sri. Sreekantan Nair retires. (e) issue such other writ or direction which this Hon'ble Court may deem fit and proper on the facts and circumstances of this case; (f) issue a writ of certiorari or other writ or order quashing Ext. P10 and Order No. E/1/1905/07/SIL Office Order dated 17.9.2007 referred to therein and the notice Ext. P9 dated 4.6.07 filed along with the reply affidavit dated 8.6.07 are void ab-initio.” 4. The petitioner alleges mala fides on the part of the former Director and the present Director, which, according to her, is the reason for not giving the petitioner her due promotion, whenever vacancies arose. The petitioner points out that although services of both were regularised with effect from 11-1-1996, Sri. Sreekantan Nair joined after the petitioner joined the Institute, that too as the junior-most among the L.D. Clerks then in service and there was absolutely no reason for favouring Sri. Sreekantan Nair with promotion ahead of the petitioner. Services in the Press and the Institute were governed by separate sets of rules and there was no provision for making appointments by transfer from the Press to the Institute and vice versa. The service in the Press is also not considered for service benefits in the Institute. There are no posts of Head Clerk and Junior w.p.c.16372/07 & cc. 6 Superintendent in the Institute, despite which promotions were given to Sri. Sreekantan Nair, even though he was subjected to disciplinary action while working in the Press, which benefit of promotions was denied to the petitioner, even after retirement of the said Sri. Sreekantan Nair. On the retirement of Sri.Sreekantan Nair, as per the service rules applicable, an employee in the subordinate service of the Institute like the petitioner should have been appointed as cashier, whereas the 4th respondent, who was not even borne in the service of the Institute has been appointed as cashier, that too despite the fact that the 4th respondent did not possess the qualifications prescribed by the Rules, is the contention of the petitioner in the first writ petition. 5. A counter affidavit dated 1-6-2007, supplemented by another one dated 6-10-2007 and an affidavit dated 25-2-2008 have been filed by the respondents 2 and 3 in the writ petition. In the 1st one, they admit that the Government, on finding that several posts were created by the Institute, without prior sanction, by Ext. P3, allowed those posts to be continued on supernumerary basis, till retirement of the incumbents. The posts of Head Clerk and Junior Superintendents were such posts and therefore the petitioner could not be promoted to those posts as in the case of Sri. Sreekantan Nair. They would contend that the post of Cashier is a selection post to be filled up by transfer from Upper Division Clerks in the Kerala State w.p.c.16372/07 & cc. 7 Institute of Languages Subordinate Service or in the absence of eligible candidates, by deputation from Government Service. Therefore, the 2nd petitioner cannot claim promotion to that post also is their contention. They would further contend that even though the petitioner is not entitled to promotion, she is entitled to time bound higher grades. They justify giving charge of the post of Cashier to the 4th respondent on the ground that he is a Head Clerk governed by the Special Rules of the Kerala State Institute of Languages Subordinate Service, which is above the post of U.D. Clerk and they are entitled to give charge of the post of Cashier to a person in whom they have confidence. According to them since the petitioner suffers from disability of 40% and has been subjected to disciplinary action on several occasions, they felt that it is not in the best interest of the Institute to give charge of the post to the petitioner when the vacancy arose on 31-5-2007. They also dispute the claim of the petitioner regarding her physical disability. 6. As already stated, after filing of the 1st counter affidavit, the petitioner amended the writ petition taking the contention that the Institute and the Press are separate entities and therefore an employee from the Press cannot be transferred or appointed in the Institute. A counter affidavit dated 6-10-2007 was filed to the amended writ petition by respondents 2 and 3 stating thus in paragraph 5: w.p.c.16372/07 & cc. 8 “5. It is submitted that the State Institute of Languages is the main establishment and the administrative wing. The ‘Vijnana Mudranam Press’ is one of the Units of the Institute. The ‘Vijnana Mudranam Press’ is the Production Unit. The establishment of the press is covered under the provisions of the Factories Act and the Employees’ State Insurance Act. On the other hand, the State Institute of Languages is the administration wing. The Director is in over all charge of both the establishments. The Director of the State Institute of Languages is the drawing and disbursing authority in respect of the State Institute of Languages and the ‘Vijnana Mudranam Press’. The ‘Vijnana Mudranam Press’ is not having any administrative establishment of its own except the State Institute of Languages. The Government grants are allowed to the Director and the Director is the executive head of both the establishments. Therefore, there is no meaning in the contention that the ‘Vijnana Mudranam Press’ and the State Institute of Languages are entirely different, distinct and separate legal entities and therefore transfer of employees from the ‘Vijnana Mudranam Press’ to the State Institute of Languages is impermissible. The maintenance of separate gradation lists for the two establishments is for convenience. It will not make the transfer of member of the service from one unit to another. All the employees are governed by the Special Rules for the State Institute of Languages.” 7. The petitioner filed a reply affidavit to the same contending that the Press has separate service rules namely, the Vijnana Mudranam Press Special Rules, quoting the following provisions from the same: “V.M.P Special Rule. Part-I 1. Organizational Set-up of the VMP. xxx xxx xxx The service conditions of the staff of the printing press are different from these of the State Institute of Languages and have no bearing on the work of the Institute. Chapter IV – Office Procedure in the VMP and its Relations with the SIL. The working of the Vijnana Mudranam Press is independent of the State Institute of Languages. The staff of the Press do not form part of the staff of the SIL. The Press employee will have the status of Factory workers. The conditions of services of the employees of the Press have been prescribed in conformity with the Factories Act and Rules. xxx xxx xxx” w.p.c.16372/07 & cc. 9 8. This Court passed the following order on 5-2-2008: “One of the issues, which arise for consideration in this writ petition, is whether the petitioner and the 4th respondent are qualified for being appointed as a Cashier by transfer. 2. Incidentally, after hearing counsel on both sides, it was also felt that further information is necessary as to whether the Special Rules framed for the State Institute of Languages in 1982 and which it stated to have been approved by the Governing body of the State Institute of Languages in its meeting held on 25.11.1982 has been approved by the Government. The further question as to whether the enforcement of the said Special Rules require the formal approval of the Governor is a matter that has to be considered. 3. Though two counter affidavits have been by the second respondent, there is no specific averment dealing with the petitioner's assertion that the petitioner is qualified in terms of the Special Rules of the Kerala State Institute of Languages, but the 4th respondent is not. In my view, these are aspects which require further elucidation by respondents 2 and 3. I, therefore, direct respondents 2 and 3 to file additional affidavits indicating the above aspects. The additional aspect which has been mooted for consideration by the petitioner is whether Sri.Sreekantan Nair who was senior to the petitioner in the post of Lower Division Clerk in the State Institute of Languages as evidenced by Ext.R2(b). The affidavit shall also indicate the circumstances under which Sri.Sreekantan Nair, who was employed in Vijnanamudranam Press, was considered to be qualified and eligible to be appointed as Cashier by transfer in terms of the Rules of the State Institute of Languages.” 9. Pursuant to that order an additional affidavit was filed by the 3rd respondent, wherein it was stated thus in paragraphs 2 to 7: “2. The 2nd respondent is an autonomous body constituted by the State Government having a Governing Body with the Chief Minister as the Chairman, the Minister for Cultural Affairs as the Vice Chairman; the Secretary to the Government, Department of Cultural Affairs; the Secretary to Government, Finance Department and 25 Others with the Director as the members. The Establishments of the State Institute of Languages, Kerala are the State Institute of Languages and the Vijnana Mudranam Press. The Kerala State Institute of Languages have framed the General and Subordinate Service Rules, Services Disciplinary Rules and Employees Conduct Rules, 1984 which got the approval of the Government Vide G.O. (MS) No. 170/84/H.Edn. Dated 10.7.1984. The true copy of the Government Order Dated 10.7.1984 is produced herewith and marked as Exhibit R2 (d). The Government Order is upon the orders of the w.p.c.16372/07 & cc. 10 Governor and no further approval of the Governor or the Government is necessary for the enforcement of the Special Rules. There is no Special Rules for the Vignana Mudranam Press. The Special Rules is applicable to both the Institute of Languages and the Vignana Mudranam Press of the Kerala State Language Institute. 3. The claim of the 2nd petitioner that she is the only person fully qualified and eligible for promotion as Cashier as per the Special Rules is not correct. The petitioners have quoted in paragraph 9 of the Writ Petition, the extract from the Special Rules as to the Method of Appointment of Cashier. But the qualification is not stated. The qualifications for Recruitment by transfer to the post of Cashier prescribed under Rule 6 (b) (2) are: (i) Account Test (Higher) (ii) Manual of Office Procedure and (iii) Not less than 15 years service in the Institute; out of which 5 years shall be in the feeder category. It is submitted that the 2nd petitioner is not having the test qualification of Account Test (Higher). Therefore, the 2nd petitioner is not qualified for being considered for promotion to the post of Cashier. As per the records of the Institute, the petitioners have never submitted either the original or the copies of Exts. P1 (a), P2 or P5. 4. The appointment of Sri. S. Sreekantan Nair covered under Ext. R2 (b) order as Cashier was on 1.3.2007, while he was working as Junior Superintendent. The post of Senior Superintendent and that of Cashier are in the same cadre and scale of pay of Rs. 6500-10550 (Pre revised). The true copy of the Order No. E1/922/86/SIL Dated 1.3.2007 is produced herewith and marked as Exhibit R2 (e). At the material time Sri. S. Sreekantan Nair was having the requisite qualification and experience for being appointed to the post of Cashier. It is submitted that subsequent to the above order, the Government was pleased to issue Exhibit P3 order implementing austerity measures in the autonomous institutions under the Administrative jurisdiction of the Department of Cultural Affairs. The Appendix forming part of Exhibit P3, is produced herewith and marked as Exhibit R2 (f). After Exhibit P3, the 2nd respondent cannot create the posts of Senior Superintendent, Junior Superintendent or Head Clerk either at the State Institute of Languages or at the Vignana Mudranam Press. The 2nd petitioner has earlier moved this Hon’ble Court by filing Writ petition (Civil) No. 2567 of 2007, claiming promotion to the post of Junior Superintendent. However, in view of Ext. P3, she was compelled to withdraw the Writ Petition. 5. It is submitted that as stated in paragraph 6 of the Counter Affidavit Dated 6.10.2007, the second petitioner while working as Upper Division Binder at the Vignana Mundranam Press was given transfer appointment as Lower Division Clerk at the Institute, by creating a supernumerary post on compassionate grounds as under w.p.c.16372/07 & cc. 11 Exhibit R2 (a). Sri. S. Sreekantan Nair was also given appointment by transfer as Lower Division Clerk by Exhibit R2 (b) order. The transfer appointments were with effect from 11.1.1996. Since the appointment of Sri. Sreekantan Nair was to a regular post in the Institute and that he was senior in age to the second petitioner, he was given seniority in the cadre of Lower Division Clerk in the service of the Institute. This is reflected in Exhibit P1 seniority list. The petitioners have never objected to the seniority assigned to Sri. S. Sreekantan Nair. 6. Sri. S. Sreekantan Nair was given promotion to the cadre of Upper Division Clerk with effect from 5.7.1997. The true copy of the Order No.E1/2027/92/SIL Dated 10.9.1998 is produced and marked as Exhibit R2 (g). He was given further promotion to the cadre of Head Clerk on 31.3.2003 as per order No.E1/4729/1990/SIL Dated 31.3.2003 of the 3rd respondent, a true copy of which is produced herewith and marked as Exhibit R2 (h). Sri. S. Sreekantan Nair was given further promotion as Junior Superintendent with effect from 14.6.2004 vide order No. E1/807/2004/SIL Dated 30.6.2004 of the 3rd respondent, copy of which is produced and marked as Exhibit R2 (i). It was while working as Junior Superintendent, Sri. Sreekantan Nair was given promotion to the cadre of Cashier, which is in the same scale of pay of Senior Superintendent. 7. It is submitted that the 4th respondent was holding the supernumerary post of Head Clerk at the Vignana Mudranam Press. The post of Head Clerk is above the post of Upper Division Clerk held by the 2nd petitioner. He has the qualifying service in the feeder categories of Cashier and possess the Test qualifications. The employees of the Vignana Mudranam Press is also covered by the Special Rules of the Institute. The 4th respondent is a member of the Kerala State Institute of Languages Subordinate Service and therefore, comes within the zone of consideration for appointment by transfer to the post of Cashier. It was in the above fact situation, the Standing Committee of the Institute held on 20.8.2007 under the Presidentship of the Hon’ble Minister for Education and Cultural Affairs decided as under Exhibit P11 to appoint the 4th respondent as Cashier in the existing vacancy at the Institute of Languages by giving him promotion. There was no other eligible and qualified candidates in the feeder categories for being considered for promotion. Therefore, no Departmental Selection Committee was held for the selection for appointment to the post of Cashier. It was following the above decision, this deponent has issued Exhibit P10 order.” 10. The petitioner has filed a reply affidavit dated 4-3-2008, in which,