IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 7TH JUNE 2010 / 17TH JYAISTHA 1932 OP.No. 5217 of 2002(U) ---------------------- PETITIONER(S): ----------------------- STANLY GEORGE A., ASSISTANT, KERALA PUBLIC SERVICE COMMISSION, PATTOM, THIRUVANANTHAPURAM - 695 004. BY ADV. SRI.B.RAGUNATHAN SRI.V.V.MATHEW SRI.G.S.MOHANDAS RESPONDENT(S): -------------------------- 1. KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY SECRETARY, KERALA PUBLIC SERVICE COMMISSION, PATTOM, THIRUVANANTHAPURAM-695 004. 2. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. 3. SHRI.CHANDRASEKHARAN PILLAI.S., SECTION OFFICER, KERALA PUBLIC SERVICE COMMISSION, PATTOM, THIRUVANANTHAPURAM - 695 004. 4. SHRI.GEORGE JOSEPH, SECTION OFFICER, KERALA PUBLIC SERVICE COMMISSION, PATTOM, THIRUVANANTHAPURAM -695 004. 5. SMT.NAJEMA BEEVI H.A., SECTION OFFICER, KERALA PUBLIC SERVICE COMMISSION, PATTOM, THIRUVANANTHAPURAM - 695 004. 6. SMT. USHAKUMARI K., SECTION OFFICER, KERALA PUBLIC SERVICE COMMISION, PATTOM, THIRUVANANTHAPURAM-695 004. 7. SHRI.VIVEKANANDAN K., SECTION OFFICER, KERALA PUBLIC SERVICE COMMISSION, DISTRICT OFFICE, PATTOM, THIRUVANANTHAPURAM-695004 OP NO.5217/2002 -2- 8. SMT.GABRIALAL K., SECTION OFFICER, PUBLIC SERVICE COMMISSION DISTRICT OFFICE, ERNAKULAM, KOCHI-682 011. 9. SMT.AYISHA BEEVI S., SECTION OFFICER, KERALA PUBLIC SERVICE COMMISSION, PATTOM, THIRUVANANTHAPURAM-695 004. 10. SHRI. SASIKUMAR T.S., SECTION OFFICER, KERALA PUBLIC SERVICE COMMISSION, PATTOM, THIRUVANANTHAPURAM - 695 004. 11. SHRI.CHANDRAN E., SECTION OFFICER, PUBLIC SERVICE COMMISSION DISTRICT OFFICE, ERNAKULAM, KOCHI - 682 011. 12. SHRI. RAJESAN J.S., SECTION OFFICER, PUBLIC SERVICE COMMISSION DISTRICT OFFICE, THRISSUR - 680 004. 13. SHRI. VIJAYA DAS S., SECTION OFFICER, PUBLIC SERVICE COMMISSION DISTRICT OFFICE, ALAPPUZHA - 688 006. 14. SHRI. RAMAKRISHNA K.M., SECTION OFFICER, PUBLIC SERVICE COMMISSION DISTRICT OFFICE, THRISSUR - 680 004. ADV. SRI.ALEXANDER THOMAS,SC,KPSC FOR R1 SRI.M.M.ABDUL AZIZ, SENIOR ADVOCATE FOR R5,9-10 SRI.M.A.ABDUL HAKHIM FOR R5,9-10 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 07/06/2010, ALONG WITH WPC NO.12014/2004, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP NO.5217/2002 APPENDIX PETITIONER'S EXHIBITS EXT.P1: TRUE COPY OF GO(P) NO.219/88/GAD DT 17.6.88. EXT.P2: TRUE COPY OF GO(P) NO.138/89/GAD DTD. 5.6.89. EXT.P3: TRUE COPY OF ORDER NO.ESTT.II(2) 393/96/GW DTD.28.12.99 OF 1ST RESPONDENT. EXT.P4: TRUE COPY OF ORDER NO.ESTT.II(2) 393/96/GW DTD.10.1.2001 OF 1ST RESPONDENT. EXT.P5: TRUE COPY OF REPRESENTATION TO R1 DATED 22.11.2001. EXT.P6: TRUE COPY OF REPRESENTATION TO THE CHAIRMAN, KPSC DATED 3.12.2001. EXT.P7: TRUE COPY OF THE GRADATION LIST OF ASSISTANTS DTD. 15.1.90 (RELEVANT PORTION). EXT.P8: TRUE COPY OF ORDER NO.ESTT.II(1)1/2001/GW DTD.30.11.2001 OF 1ST RESPONDENT. EXT.P9: TRUE COPY OF ORDER NO.ESTT.II(1) 1/2001/GW DATED 31.12.2001 OF 1ST RESPONDENT. //TRUE COPY// P.A. TO JUDGE Rp ANTONY DOMINIC, J. ================ O.P.No.5217 OF 2002 (U) & W.P.(C) NO. 12014 OF 2004 (E) ===================== Dated this the 7th day of June, 2010 J U D G M E N T Petitioners in these petitions are graduate typists. Their grievance is that in the matter of promotion to the post of Section Officer, juniors to them in service have got promotion earlier to them. It is in this background, these petitions have been filed. 2. In so far as OP No.5217/2002 is concerned, the facts are that, petitioner, being a graduate, entered the service of the PSC as a Typist on 26/10/83. He claims to be eligible for by transfer appointment as Section Officer w.e.f. 1/1/2001. It is stated that by Exts.P8 and P9, respondents 3 to 14 were appointed as Section Officers, overlooking his claims in as much as they joined service as Assistants only after 11/5/1984. 3. In so far as the petitioners in WP(C) No.12014/04 are concerned, their grievance is also similar. Ext.P2 in OP No.5217/2002, is a copy of the GO(P) No.138/89/GAD dated 5th of June, 1989. According to the petitioners, as per this Government Order, graduate Typists like them, are exempted from passing the OP No.5217/2002 & WP(C) No.12014/04 :2 : suitability test for appointment to the post of Section Officer and that the Government Order itself provides that a Typist/Confidential Assistant will not be appointed as Section Officer in preference to an Assistant, who has the next chance of appointment as Section Officer and whose total length of service is equal to or greater than that of the Typist/Confidential Assistant. On this basis, counsel contends that since respondents in these petitions entered service subsequent to them, their total length of service is less than that of theirs and therefore, they could not have been preferred to them or given earlier appointment as Section Officers. 4. It is further contended that although in Ext.P1 Government Order viz., GO(P) No.219/88/GAD dated 17/6/88, vide clause (c) thereof, it is provided that in the matter of appointment to the post of Section Officer, Graduate Typists or Confidential Assistants will not overtake a Senior Grade Assistant or Assistant Grade I elder to him in age, in view of the provisions contained in Ext.P2 Government Order, the said Government Order has become redundant, and therefore, even going by the provisions of OP No.5217/2002 & WP(C) No.12014/04 :3 : Ext.P1, the party respondents herein could not have been given promotion earlier than the petitioners. 5. However, learned counsel for the PSC, in whose services petitioners and the respondents are working defends the earlier appointment given to the party respondents. According to the learned counsel for the PSC, the suitability test is exempted in view of Note (3) to Ext.P2 Government Order referred to above. It is stated that in the Government Order itself, exemption has been given subject to the conditions laid down in Ext.P1 GO(P) No.219/88/GAD dated 17/6/88 referred to above. It is stated that going by Ext.P1, the party respondents being elder to them in age are entitled to be treated seniors to the petitioners who are younger to them in age. 6. In so far as the challenge against Clause (C) of Ext.P1 Government Order raised in WP(C) No.12014/04 is concerned, that contention is answered by the PSC in its counter affidavit, in the following words: In this connection, it is to be pointed out that the Ext.P2 was issued by the Government in consultation with the Commission. Necessary proposals were formulated and placed by the Government and the Commission after considering various aspects involved in the matter OP No.5217/2002 & WP(C) No.12014/04 :4 : agreed to the proposals of the Government. The reason which weighed with the Government in proposing clause (c) of Ext.P2 Government order and found reasonable by the Commission is that one can enter in service as Typists/Confidential Assistants in the Government Secretariat (or in the office of the K.P.S.C) also) 3 to 5 years earlier in age than an Assistant who can join in service only after graduation. A Typist/Confidential Assistant can acquire graduation after entering the service and thereby acquire eligibility to get selection as Section as per the existing ratio at younger age than the Assistant and thus gain better prospects for further advancement than the directly recruited Assistants. In order to mitigate the hardship caused to the Assistants, Government incorporated a further condition to the rules to the effect that no graduate Typists/Confidential Assistant who is younger in age to a directly recruited Assistant would become eligible for appointment as Section Officer and issued the orders in GO(Ms) No.219/88/GAD dt 17.6.88 (Ext.P2). The clause (c) has been incorporated as a precaution so that injustice as aforesaid may not be brought about in the case of Assistants while exemption is granted to graduate Typists/Confidential Assistants from passing the required suitability test. If no such condition was made, the exemption granted to graduate typists/confidential Assistants would have been prejudicial to the interests of the Assistants. The intention was that no Section or staff who constitute the feeder category should be put to hardship or disadvantage by introduction of new rules to the benefit of a Section of the feeder category ie. Confidential Assistants/Typists. 7. Two contentions are raised. One is that Ext.P1 Government Order containing that Clause providing seniority to elder in age is redundant in view of Ext.P2, the subsequent OP No.5217/2002 & WP(C) No.12014/04 :5 : Government Order. The other contention raised is that the clauses contained in Exts.P1 and P2 are contradictory in nature, and therefor, the latter one, viz., Ext.P2, should prevail. 8. As far as the contention that Ext.P1 Government Order containing Clauses (c) challenged in WP(C) No.12014/04 is redundant is concerned, a reading of Ext.P2, the Government Order providing for exemption to Grade Typists from acquiring suitability test, it is provided that such exemption from the suitability test itself is subject to the conditions laid down in Ext.P1, viz., GO(P) No.219/88/GAD dated 17/6/88. Therefore, since the Government Order itself has referred to GO(P) No.219/88/GAD dated 17/6/88and has incorporated the conditions of the said Government Order as condition for exemption, I am not persuaded to accept the contention raised by the learned counsel for the petitioners that the Government Order has become redundant. 9. The other contention that is raised is that Exts.P1 and P2 are contradictory in nature and therefore the latter one should prevail. A reading of Ext.P2 shows that Graduate OP No.5217/2002 & WP(C) No.12014/04 :6 : Typists/Confidential Typists will not be appointed as Section Officer, in preference to an Assistant, who has next chance of appointment as Section Officer, and whose total length of service is equal to or greater than the Typists/Confidential Assistants. This provision will apply to a Typist/Confidential Assistant, who has not claimed or enjoyed the benefit of exemption. In other words, this provision applies to a Graduate Typist or Confidential Assistant, who is qualified in all respects including in Suitability test. On the other hand, Note 3 providing for exemption applies to Graduate Typists, who have not passed Suitability Test and the Note provides that such Graduate Typists will enjoy the benefit of exemption, but however, subject to the conditions of GO(P) No.219/88/GAD dated 17/6/88. Therefore, these two Government Orders deal with two classes of Graduate Typists/Confidential Assistants and Ext.P1 GO(P) No.219/88/GAD dated 17/6/88 applies only in respect of the latter one. Viewed in this manner, I am not persuaded to agree with the counsel for the petitioners that there is anything contradictory in between Exts.P1 and P2 nor hold that Ext.P2 should govern the field. Therefore, that OP No.5217/2002 & WP(C) No.12014/04 :7 : contention also has to be rejected 10. As far as the challenge against Clause (c) of Ext.P1 GO (P) No.219/88/GAD dated 17/6/88 is concerned, PSC has explained in the counter affidavit, the reasons which made the Government to provide for such seniority to the employees who are elder in age. Nothing has been placed on record to conclude that the said reasoning given by the PSC in its counter affidavit is incorrect or erroneous. Therefore, I see no merit in these petitions. These petitions are devoid of merit and are rejected. OP No.5217/2002 and WP(C) No.12014/04 are dismissed. ANTONY DOMINIC, JUDGE Rp