IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI THURSDAY, THE 26TH MARCH 2009 / 5TH CHAITHRA 1931 WP(C).No. 4204 of 2008(A) ------------------------------------- PETITIONER(S): ---------------------- 1. CHAMIKUTTY V., CLERICAL ASSISTANT GRADE-II, OFFICE OF THE DEPUTY DIRECTOR OF LOCAL FUND AUDIT, H.R.E.AUDIT, PALAKKAD. 2. SHEELA V.R., CLERICAL ATTENDER GRADE-II, OFFICE OF THE DEPUTY DIRECTOR OF LOCAL FUND AUDIT, M.G.UNIVERSITY AUDIT, ATHIRAMPUZHA, KOTTAYAM. 3. SHAJIMON P.B., CLERICAL ATTENDER GRADE-II, OFFICE OF THE DEPUTY DIRECTOR (HIGHER GRADE) OF LOCAL FUND AUDIT, DISTRICT OFFICE, IDUKKI, THODUPUZHA. 4. KERALA LOCAL FUND AUDIT UNION, THIRUVANANTHAPURAM, REPRESENTED BY ITS GENERAL SECRETARY. BY ADV. MR.S.P.ARAVINDAKSHAN PILLAY SMT.N.SANTHA MR.PETER JOSE CHRISTO MR.S.A.ANAND RESPONDENT(S): ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, FINANCE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN: 695 001. 2. DIRECTOR, DEPARTMENT OF LOCAL FUND AUDIT, THIRUVANANTHAPURAM, PIN : 695 001. R1 & R2 BY GOVERNMENT PLEADER SMT.SUDHA DEVI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO. 4204/2008-A APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE G.O.(MS)NO.31/06/GAD DATED 25/01/2006. EXT.P2: COPY OF THE REPRESENTATION DATED 07/10/2006 OF THE GENERAL SECRETARY OF THE 4TH PETITIONER UNION WITHOUT ITS ENCLOSURES. EXT.P3: COPY OF THE CIRCULAR NO.ESTT.II(3)31796/06/GW DATED 19/08/2006 OF THE SECRETRY, KERALA PUBLIC SERVICE COMMISSION. EXT.P4: COPY OF THE GOVERNMENT LETTER NO.94630/EST.D1/06/FIN. DATED 11/10/2007. EXT.P5: COPY OF THE G.O.(MS)NO.86/06/GAD DATED 27/02/2006. EXT.P6: COPY OF THE G.O.(RT)NO.6585/2006/GAD DATED 16/08/2006. EXT.P7: COPY OF THE ORDER NO.LF.3/ESTT.1/2006 DATED 23/08/2006 OF THE DIRECTOR OF LOCAL FUND AUDIT. EXT.P8: COPY OF THE REPRESENTATION DATE4D 23/01/2008 SUBMITTED BY THE GENERAL SECRETARY OF THE 4TH PETITIONER TO GOVERNMENT. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.S. TO JUDGE Rs/ V.GIRI, J. ------------------------- W.P.(C).No.4204 of 2008 ------------------------- Dated this the 26th day of March, 2009. JUDGMENT The petitioners are aggrieved by the non- prescription of a ratio for members of the Last Grade Service for appointment to the post of Auditor in the Local Fund Audit Department. 2. The petitioners are in the Last Grade Service and are working in the Local Fund Audit Department. It is contended that the Government has, by Ext.P1 order, ordered that 2% of the posts in the Cadre of Assistant Grade II in the Secretariat Department will be set apart for appointment by transfer from among the low paid employees of the Secretariat enumerated therein, on the basis of seniority. The petitioners are qualified to be appointed to the post of Auditor in the Local Fund Audit Department, which post is similar to that of Assistant Grade II in the Secretariat Department. It is further contended W.P.(C).No.4204 of 2008 :: 2 :: that the low paid employees of the Secretariat, after being appointed as Assistant Grade II against the 2% quota prescribed under Ext.P1, are enabled to get an inter-departmental transfer to the Local Fund Audit Department. Reference is made, in this regard, to Ext.P5 order, whereby one P.Shaheen, a Clerical Assistant in the Secretariat, was appointed by transfer as Assistant Grade II. By Ext.P6 order, the said person was given inter-departmental mutual transfer to the Local Fund Audit Department. Thus, if inter-departmental transfer of employees in other departments to the Local Fund Audit Department and consequent appointment to the post of Auditor in the Local Fund Audit Department is permitted by the Government and is actually resorted to, then there is no reason why the low paid employees in the Local Fund Audit Department, should not be given the benefit of 2% reservation to the post of Auditor in the Local Fund Audit Department. The claim earlier made by the petitioners, in this regard, was rejected by the Government, as evidenced by Ext.P4, W.P.(C).No.4204 of 2008 :: 3 :: essentially on the ground that a skill is required for the job of an Auditor and appointment to the said post on the ground of seniority alone may not be permissible. That has been challenged in this writ petition wherein the following reliefs have been prayed for: (a) Call for the records leading to Ext.P4 and quash the same by the issuance of a writ of certiorari or any other appropriate writ, order or direction. (b) Issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents to extend the benefit of appointment by transfer conferred on qualified low paid employees of the Secretariat by Ext.P1 to the petitioners 1 to 3 and other low paid employees of the Department of Local Fund Audit in the matter of appointment by transfer to the post of Auditor in the Department of Local Fund Audit within a time limit to be fixed by this Hon'ble Court. W.P.(C).No.4204 of 2008 :: 4 :: (c) Grant such other reliefs as this Hon'ble Court deems fit and proper in the circumstances of the case including the costs of this writ petition (Civil). 3. A counter affidavit has been filed by the 1st respondent contending that Auditors in the Local Fund Audit Department require some technical expertise. It is further stated as follows in paragraph 5 of the counter affidavit. “It is submitted that the Government had reconsidered the proposal to decline the proposal as auditor requires technical expertise which may not be available among the low paid employees. Ext.P4 Government letter No.94630/Estt.D1/06/Fin dated 11.10.2007 is perfectly legal and justified. It is true that Assistants in Secretariat/Kerala Public Service Commission and Auditors in Local Fund Audit Department are appointed from a common rank list published by the Kerala Public Service Commission. The low paid employees to these Departments are also appointed from a common rank list. Assistants in the Secretariat, W.P.(C).No.4204 of 2008 :: 5 :: Office of the Advocate General and Office of the Kerala Public Service Commission are eligible to get interdepartmental transfer to the Department of Local Fund Audit. The Auditors in the Local Fund Audit Department are given 3 months in- service training to make them suitable for the work of Auditor in the Department. The Government has therefore in their wisdom thought that it will not be appropriate to reserve 2% of the posts for last grade employees in Local Fund Audit Department. The petitioners do not have any legal enforceable right for reserving 2% of vacancies for promotion. The Writ Petitioner (sick 'petition') is therefore misconceived and not maintainable. 4. I heard learned counsel for the petitioner Sri.S.P.Aravindakshan Pillai and Sri.Manojkumar, learned Special Government Pleader. 5. That low paid employees in the Secretariat Department are given the benefit of 2% reservation in the higher category of Assistant Grade II is not disputed. That a similar benefit is W.P.(C).No.4204 of 2008 :: 6 :: granted by the Public Service Commission to its employees is also not disputed. It is also not disputed that low paid employees, on appointment as Assistant Grade II in the Secretariat Department, are then permitted to come over to the Local Fund Audit Department by inter-departmental transfer and get themselves appointed as Auditors, which is a post in the same Grade as that of Assistant Grade II in the Secretariat Department. All that is required in such cases, according to the Government is that the person so received on inter-departmental transfer in the Local Fund Audit Department has to undergo a three months' in-service training, which is mandatory for all such persons, who are appointed as Auditors in the Local Fund Audit Department either by direct recruitment or by transfer. In these circumstances, the reason, which seems to have persuaded the Government to decline the request made by the petitioners for a 2% reservation in the post of Auditor, for the benefit of low paid employees of the Department, does not seem to be justified. I am W.P.(C).No.4204 of 2008 :: 7 :: of the view that the matter requires reconsideration at the hands of the Government. In the result, the writ petition is allowed. Ext.P4 is quashed. The Government is directed to take a fresh decision on the request made by the petitioners, as contained in Ext.P2, within a period of six months from the date of receipt of a copy of this judgment, keeping in mind the observations made in this judgment. Sd/- (V.GIRI) JUDGE sk/ //true copy//