IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 15TH NOVEMBER 2011 / 24TH KARTHIKA 1933 WP(C).No. 34113 of 2010(L) -------------------------- PETITIONER(S): ----------------------- V.C. MATHEW, AGED 55 YEARS, S/O. T.K. CHACKO, AGRICULTURAL ASSISTANT, KRISHI BHAVAN, PIRAVOM, RESIDING AT VADAKKEL HOUSE, OLIYAPPURAM P.O., KOOTHATTUKULAM - 686 671. BY ADV. SRI. B. GOPAKUMAR RESPONDENT(S): ------------------------- 1. THE DIRECTOR OF AGRICULTURE, VIKAS BHAVAN, THIRUVANANTHAPURAM - 695 033. 2. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, AGRICULTURAL DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 3. KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETAR, PATTOM, THIRUVANANTHAPURAM. R1 & R2 BY GOVT. PLEADER SMT. RANI DIOTHIMA R3 BY ADV. SRI. P.C. SASIDHARAN, SC, KPSC. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/11 /2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PN WP(C).No. 34113 of 2010(L) APPENDIX PETITIONER'S EXHIBITS EXT. P1 COPY OF ORDER G.O.(P) NO. 154/09/FIN. DT. 24.04.2009. EXT. P2 COPY OF SERVICE BOOK PREVIOUS QUALIFYING SERVICE OF PETITIONER. EXT. P3 COPY OF ORDER G.O.(P) NO. 452/06/FIN. DT. 06.11.2006. EXT. P4 COPY OF LETTER NO. EP11(2)/05/04/EW DT. 06.04.2006 FROM THE 3RD RESPONDENT TO THE PETITIONER. EXT. P5 COPY OF CIRCULAR NO. SE(2) 18833/06 DT. 03.08.2007 WITH REVISED PENSION/COMBINED SENIORITY LIST OF AGRICULTURAL ASSISTANT. EXT. P6 COPY OF LIST OF AGRL. OFFICERS UNDER 15% QUOTA DUE TO RETIRE FROM SERVICE 31.03.2011. EXT. P7 COPY OF PROCEEDINGS OF THE PRINCIPAL AGRICULTURAL OFFICER, ERNAKULAM ORDER NO. E(2) 4976/01 DT. 16.06.2001. EXT. P8 COPY OF CERTIFICATE OF PERFORMANCE. EXT. P9 COPY OF CERTIFICATE OF APPLICATION OF STATE POVERTY ERADICATION MISSION DT. 12.07.2006. EXT. P10 COPY OF LETTER BY PETITIONER TO DIRECTOR OF AGRL, TRIVANDRUM DT. 29.03.2010. EXT. P11 COPY OF LETTER TO DIRECTOR OF AGRICULTURE BY PETITIONER DT. 14.06.2010. EXT. P12 COPY OF JUDGMENT DT. 24.06.2010 IN W.P.(C) NO. 19703/10 OF THIS HONOURABLE COURT. EXT. P13 COPY OF ORDER SE(2) 28363/10 DT. 27.08.2010 BY DIRECTOR OF AGRICULTURAL. EXT. P14 COPY OF REPRESENTATION TO AGRL. SECRETARY, GOVT. OF KERALA BY PETITIONER DT. 07.09.2010. EXT. P15 COPY OF GOVT. LETTER NO. 26669/EA2/10/KRISHI DT. 26.10.2010. EXT. P16 EXTRACT OF THE PASS BOOK OF STATE GOVERNMENT EMPLOYEE GROUP INSURANCE SCHEME ACCOUNT NO. EKM/2110 DT. 14.05.1996. WP(C).No. 34113 of 2010(L) EXT. P17 COPY OF LETTER NO. 630/95 DT. 10.01.1995 ISSUED BY UNION CHRISTIAN COLLEGE, KOTTAYAM. EXT. P18 COPY OF LETTER NO. SE(3) 45592/08 DT. 30.09.2008 OF DIRECTOR OF AGRICULTURE, TVM. WITH ENDORSEMENT LETTER DATED 25.10.2010 OF AGRICULTURAL OFFICER, MULAKULAM WITH PROFORMA. RESPONDENT'S EXHIBITS : NIL /TRUE COPY/ P. A. TO JUDGE PN C.K. ABDUL REHIM,J. ------------------------------------------------- W.P.(c) No. 34113 OF 2010 ------------------------------------------------- DATED THIS THE 15th DAY OF NOVEMBER, 2011 J U D G M E N T In this writ petition, the petitioner who is working Agricultural Assistant (senior grade) in the Agricultural Department of the State Government, is seeking direction for appointing him as Agricultural officer, Grade-II with effect from 01-10-2010, invoking Rule 31 of KS & SSR by creating supernumerary post. The petitioner inter alia seeks direction for granting all service benefits, by reckoning prior service put in by him, as endorsed in Ext.P2. 2. The petitioner was appointed as Agricultural Assistant with effect from 20-05-1993 as adviced by the Public service Commission, and he retired from service on 31-03-2011. Even though his date of superannuation was 31-10-2010m on the basis of Ext.P1 order bringing unification of retirement date he continued till 31-03- 2011. The petitioner had put in prior service from 01-10-1984 to 15-11-1990 and from 16-11-1990 to 19-05- 1993, as Peon and Lab Assistant respectively, at the Union W.P.(c) No.34113/2010 -2- Christian College, Aluva. His prior service was entered in the Service Book as qualifying service, as evident from Ext.P2. 3. As per the relevant Special Rules, the method of appointment prescribed to the post of 'Agricultural officer Grade-II' includes appointment by transfer from the cadre of Agricultural Assistants, and the qualification prescribed is passing of suitability test conducted by the Public Service Commission. The petitioner acquired the requisite qualification on passing suitability test conducted by PSC, as evident from Ext.P4. Exhibit P5 is a combined list of seniority of eligible candidates prepared for giving appointment by transfer to the post of Agricultual officer. The petitioner is included as Sl. No.134 in Ext.P5. Out of Ext.P5 list candidates upto Sl. No.119 were given appointment as Agricultural officer Grade-II. This was on the basis of vacancy occurred as on 31-03-2010. According to the petitioner 22 persons more could have been appointed under the 15% quota set apart against retirement vacancies, but for Ext.P1 order of unification of the date of W.P.(c) No.34113/2010 -3- retirement. Exhibit P6 list is produced to show that at least 22 vacancy was available in between 30-04-2010 and 30-09- 2010, reckoned on the basis of the actual date of superannuation of the incumbents concerned, but for the unification effected. The respondents took the stand that due to the unification of retirement date such vacancy were not in existence. But as per Ext.P1 Government order the respondents ought to have filled up the vacancies arisen, but for the unification, by creating supernumerary posts, is the contention. Even though the petitioner made various representations in this regard, like Exts.P10 and P11, the issue was not considered. 4. In Exts.P10 and P11 the petitioner had also voiced a grievance that the prior service put in by him was not reckoned for all service benefits, inspite of inclusion of such period as eligible service in the Service Book of the petitioner. Therefore the petitioner approached this court in W.P (c) No.19703/2010. In Ext.P12 judgment a direction was issued to the 1st respondent to consider the representations and to pass appropriate orders within a W.P.(c) No.34113/2010 -4- time limit stipulated. 5. Ext.P13 is the order issued by the 1st respondent in compliance with such directions. In Ext.P13 the claim of the petitioner for reckoning the prior service was declined on the ground that the petitioner had failed to submit application in this regard within the time limit prescribed in the relevant Government order (Ext.P3). The request for appointment as Agricultural officer Gr-II is also declined for the reason that as per Ext.P1 Government order supernumerary post need be created only for filling up vacancies at the entry cadre level, that would have arisen but for the unification. Hence, it is held that the request of the petitioner to consider his prior service for grade promotion, pension etc as well as his claim for promotion by creating supernumerary posts deserves no merit. 6. Sri. B. Gopakumar, learned counsel for the petitioner pointed out that, as per Ext.P3 the time stipulated to prefer a claim for reckoning prior service with respect to those who are already in service, is limited as 2 years from the date of the said order. Ext.P3 is dated 06-11-2006. It is W.P.(c) No.34113/2010 -5- pointed out that as early as in the year 1997 when the petitioner was working as Agricultural Assistant at Krishi bhavan, Purapuzha Ext.P2 endorsement was made in the Service Book treating the prior service put in by the petitioner as qualifying service. He further points out that as evident from Ext.P18, as early as on 25-10-2008, the Agricultural officer, Krishi bhavan, Piravom, had forwarded the service particulars of the petitioner in response to a letter issued by the Director of Agriculture. Therefore, it is contended that the reason stated for rejecting claim of the petitioner is not factually correct. The petitioner has preferred the claim for reckoning the service, within the time stipulated under Ext.P3, which fact was omitted notice by the authority while issuing Ext.P13, is the contention. 7. Learned counsel further contended that the reasoning stated or refusing his claim for promotion in the cadre of Agricultural officer Gr-II is also not sustainable. It is specifically pointed out that going by the recruitment rules, the 15% quota set apart to the cadre of Agricultural officer Gr-II has to be filled up by way of appointment by W.P.(c) No.34113/2010 -6- transfer from the cadre of Agricultural Assistant Gr-II, who acquired suitable qualification. Therefore the findings that the petitioner was seeking promotion and that it will not come within the vacancies arisen at the entry level as prescribed in Ext.P1, are erroneous and misconceived, is the contention. 8. In the counter affidavit filed on behalf of the respondent 1 and 2 it is mentioned that the petitioner had submitted claim for reckoning his prior service only on 22-01-2009, after the expiry of time limit stipulated in Ext.P3. But as stated above, going by the materials produced, it is evident that service in question was entered as qualifying service much prior to such date and that the service particulars of the petitioner was forwarded in the year 2008 itself. The contention of the respondents that, filling up of vacancies in the cadre of Agricultural officer is by way of direct recruitment and promotion in the ratio 85:15, is also not correct in view of the specific provision in the recruitment rules to the effect that 15% quota set apart in the cadre of Agricultural officer Gr-II need be filled W.P.(c) No.34113/2010 -7- through appointment by transfer. Considering the above aspect, I am of the view that the reasons mentioned in Ext.P13 are not sustainable. However, I feel that a fresh consideration of the matter taking note of all the above said facts with an opportunity afforded to the petitioner to substantiate his claim will meet the ends of justice. Therefore the writ petition is disposed of quashing Ext.P13 and also the consequent letter issued by the 1st respondent under Ext.P15. The 1st respondent is directed to reconsider the matter with notice to the petitioner after affording proper opportunity of hearing and opportunity to substantiate his claim through materials. A considered decision in this regard shall be taken afresh as early as possible, at any rate within a period of 3 months from the date of receipt of copy of this judgment. Sd/- C.K. ABDUL REHIM, JUDGE. AMG True copy P.A to Judge