Ajesh Xaviour and Others v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** ## **THURSDAY ,THE 30TH DAY OF AUGUST 2018 / 8TH BHADRA, 1940** ## **WP(C).No. 27242 of 2018** **PETITIONER/S:** - **1 AJESH XAVIOUR, AGED 28 YEARS, S/O.MANI XAVIER, NELLIKAL, TRA-15,MUNDAKKAL EAST, KOLLAM - 691 001.** - **2 RAKESH.R., AGED 27 YEARS, S/O. RETNAKARAN. R., GURU VIHAR, KARAKKONAM POST, THIRUVANANTHAPURAM - 695 504.** - **3 SARANYA MOHAN.I., AGED 26 YEARS, D/O.MOHAN.L., SOUMYA VILASAM, PUNTHALATHAZHAM NAGAR 162, KILIKOLLOOR. P.O., KOLLAM - 691 004** - **4 APARNA MUNDAKKATHARMAL, AGED 27 YEARS, D/O. V.P.KUNHIRAMAN, VAYALILAYPURAYIL HOUSE, P.O.POYIL, PARIYARAM, KANNUR - 670 502.** - **5 RESHMA.S.KUMAR, AGED 27 YEARS, D/O. SUNIL KUMAR.C., POOMUGATHUPUTHENVEED, KARUMARACODE, ARUVIKKARA. P.O., THIRUVANANTHAPURAM - 695 564.** - **6 SHIFANA FAZIL, AGED 28 YEARS, D/O. FAZILUDEEN, VADAKKEPURAYIL, NEAR M.S.M.H.S.S., KAYAMKULAM - 690 502,** - **7 KRUPA PRASAD, AGED 26 YEARS, D/O. PRASAD.C.D., KAITHAKKATTU HOUSE, MUHAMMA POST, ALEPPEY - 688 525.** - **8 SMITHA.P.RAJ, AGED 27 YEARS, D/O.THANKARAJ.S., BADHEL HOUSE, KANJIRAMNINNA, MULLUVILA. P.O- 695 133.** WP(C).No. 27242 of 2018 2 - **9 RESMI.R. RUSSEL, AGED 35 YEARS, D/O.D.RUSSEL, DREAMS,NELLIMOODU, THIRUVANANTHAPURAM - 695 524** - **10 SOJI SOMAN, AGED 27 YEARS, D/O.J.SOMAN, SOPANAM, CHEMMAKKAD. P.O., PERINAD, KOLLAM - 691 601** - **11 MANJU VELAYUDHAN, AGED 36 YEARS, D/O.P.R. VELAYUDHAN, MEVAKKATTU HOUSE, PUNNATHURA WEST. P.O., KOTTAYAM - 686 631.** - **12 SUJI.S.,AGED 27 YEARS, D/O.R. SUNDARAN, SUVINNIVAS, BHAVANA NAGAR 119, KADAPPAKKADA POST, KOLLAM - 691 008** - **13 ANISHAMOL.V.O., AGED 27 YEARS, D/O. VIJAYACHANDRAN.D., KRIPASADANAMCHANIKANJIRAMKULAM.P.O.-695 524** - **14 ARUN.S., AGED 28 YEARS, S/O. SUDHAKARAN NAIR, VILATHARA VEEDU, MUTTACAUD POST, VENGANOOR - 695 523.** - **15 MARGAREETHA JOSEPH MORRIS, AGED 29 YEARS, D/O. JOSEPH MORRIS, LAZERS CASTLE, THOPPIL HOUSE, SAKTHIKULANGARA POST, KOLLAM - 691 581.** - **16 GEETHU DAS.S, AGED 27 YEARS, S/O. THULASIDAS.D., NADUVILAKARUNGAYIL, CHITTOOR, PONMANA(P.O), CHAVARA, KOLLAM - 691 583.** - **17 REVATHI.S., AGED 29 YEARS, D/O JAYADAS.J.,VRA 154, VATTIYOORKAVU.P.O., TRIVANDRUM - 695 013.** - **18 ASWATHY. G.J., AGED 31 YEARS, D/O.J. GEORGE, EBANEZAR COTTAGE, CHAMAVILA, KARAKULAM. P.O -695 564.** - **19 SHYJA.S., AGED 25 YEARS, D/O. E SHAMSUDHEENKUNJU, SHAMNA MANZIL, CHAVARA B P O, CHAVARA, KOLLAM - 691 583.** WP(C).No. 27242 of 2018 3 - **20 SURKI. T.S., AGED 32 YEARS, D/O. K.R.THANKAPPAN, ROHINI, MALAMEKKARA, ADOOR (P.O), PATHANAMTHITTA- 691 523.** - **21 ANJALI GEORGE, AGED 25 YEARS, D/O. A.D. GEORGE, ASSARIPARAMBIL (H), VEMOM POST, ONDAYANGADY, MANANTHAVADY, WAYANAD- 670 645.** - **22 JIJIMOL, AGED 30 YEARS, D/O. M. JAYANANDADAS, RATHEESH BHAVAN, ALUMKUZHI, URIACODE POST - 695 543.** - **23 KIRAN DAS.D., AGED 27 YEARS, S/O.R.DEVADAS, C.K. BHAVAN, KOTTAMKARA, CHANDANATHOPE POST, PIN - 691 014.** - **24 RAJALEKSHMI.S., AGED 26 YEARS, D/O. RAJAN.D., MUKHATHALAVILA VEEDU, S.N.PURAM, PAVITHRESWARAM POST, PUTHOOR - 691 507.** - **25 SREESHMA. K.K., AGED 32 YEARS, D/O. SREEDHARAN.K.K., AKKIPOYIL HOUSE, KODUVALLY POST, KOZHIKODE - 673 572.** - **26 RAKHI.L.K., AGED 26 YEARS, D/O. KUNJUKUNJU.K., PARAKAMAVILAYIL, S.E.THAZHAVA, SRP MARKET POST, KOLLAM - 690 539** - **27 APARNA.V.M., AGED 27 YEARS, D/O.MOHANDAS, KALINGA, JAYAN NAGAR- 124, OLAYIL, THEVALLY POST, KOLLAM - 691 009** - **BY ADV. SRI. G.P. SHINOD BY ADV. SRI. RAM MHAN.G., BY ADV. SRI. GOVIND PADMANABHAN BY ADV. SRI. AJIT.G. ANJARLEKAR** WP(C).No. 27242 of 2018 4 ## **RESPONDENT/S:** > **1 STATE OF KERALA, REPRESENTED BY ADDITIONAL CHIEF SECRETARY TO GOVERNMENT, ENVIRONMENTAL DEPARTMENT (A), GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM -695 001** - **2 THE DIRECTOR OF EMPLOYMENT, EMPLOYMENT DIRECTORATE, THIRUVANANTHAPURAM - 33.** > **3 THE KERALA STATE POLLUTION CONTORL BOARD, REPRESENTED BY ITS CHAIRMAN, HEAD OFFICE, PLAMOODU, PATTOM, THIRUVANANTHAPURAM-4.** > **4 THE CHAIRMAN, THE KERALA STATE POLLUTION CONTROL BOARD, HEAD OFFICE, PLAMOODU,PATTOM, THIRUVANANTHAPURAM-4.** - **5 THE KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, PATTOM POST, THIRUVANANTHAPURAM- 695 004.** - **6 THE SECRETARY, KERALA PUBLIC SERVICE COMMISSION, PATTOM POST, THIRUVANANTHAPURAM- 695 004.** ## **OTHER PRESENT:** **SR GP SRI.BIJOY CHANDRAN,SRI.T.NAVEEN (SC,BEVCO), SRI.P.C.SASIDHARAN (SC,PSC)** ## **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON** ## **30.08.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **JUDGMENT** The petitioners who are working as Assistant Engineers in the Kerala State Pollution Control Board are aggrieved by Ext P4 letter issued by the Director of Employment, by which it WP(C).No. 27242 of 2018 5 was directed that persons who were already appointed through Employment Exchange in the Kerala State Pollution Control Board in the post of Assistant Engineers shall be excluded for the fresh selection. They are also challenging Ext. P3 rank list for appointment after the process of fresh selection. 2. Petitioners were appointed as Assistant Engineers under the 3[rd] respondent, during March and April, 2017, on being sponsored by the Employment Exchange. Petitioners point out that while they are excluded, Ext.P3 rank list contains the names of several persons who were working in LSGD. Therefore according to them, the exclusion of their names alone, based on Ext.P4 letter and their non-inclusion in Ext P3 rank list are illegal and discriminatory. Petitioners claimed that they are liable to be retained or re-appointed, especially when appointments are going to be made through Public Service Commission. It is their case that persons who were appointed in LSGD on being sponsored by Employment Exchange are included in Ext P3 rank list and that re-appointments are made in several establishments of candidates who were employed there, while in their case alone directions are issued as contained in Ext.P4, as a result of which they are denied opportunity for employment in other establishments also. WP(C).No. 27242 of 2018 6 3. The learned Standing Counsel for the Kerala State Pollution Control Board submits that on receiving the list of candidates from the Employment Exchange, the Pollution Control Board had sought for clarification and Ext.P4 letter was issued thereafter directing exclusion of candidates who were working under the Pollution Control Board and thereupon the ranked list was prepared in tune with Ext.P4 letter, excluding the candidates like petitioners who were working under it. 4. The learned Government Pleader submits that as per the Rules, the candidates who got employment once are not sponsored again for a period of at least one year, unless there are no qualified hands available, so as to see that other candidates are also getting opportunity to work. It is also pointed out that the provisos to Rule 9(a)(i) prohibits such re-appointments. 5. On considering the contention on both sides, I find that the purpose behind the exclusion of petitioners from the present selection/ candidates who once got employment on being sponsored by Employment Exchange is to ensure that the public employment, which is the wealth of the nation is shared equally among the qualified unemployed hands and to see that all such qualified hands are getting an opportunity to get employment by rotation, at least once for a specified WP(C).No. 27242 of 2018 7 period. The direction in Ext.P4 to exclude the candidates who were already working under the 4[th] respondent, is perfectly in accordance with the proviso to Rule 9(a)(i) of Kerala State and Subordinate Service Rules which prohibits re-appointment of candidates on expiry of tenure except in cases where qualified hands are not available. Therefore, there is no illegality in Ext.P4; on the other hand it is consistent with Article 14 and 16 of the Constitution of India. 6. The contention that several appointments are made contrary to the direction in Ext.P4, cannot give rise to any right to petitioners to get employed again. In the absence of any such appointees on the party array, this court cannot go into the validity of such appointments. At any rate, the illegal or irregular appointments if any made by the respondents cannot be a reason for directing consideration of petitioners. 7. The petitioners who are aware of the prohibition in Rule 9(a) (I) of the KS& SSR, for re-appointment, have challenged that rule also. The last proviso to R. 9(a)(i) provides that persons appointed under that clause by direct recruitment to a post and discharged from service after the admissible period, shall not be re-appointed to the same post by the same appointing authority, except when fresh candidates are not available for appointment through WP(C).No. 27242 of 2018 8 Employment Exchange. In **C. Latha v. State:** 1993 (2) KLJ 497, a Division Bench of this court has considered the validity of R. 9(a)(i) of the K S&SSR where it was held as follows: “The proviso to R. 9 appears to be based upon a policy which is peculiar to the State of Kerala. Here, number of jobs are limited, and the persons available are in thousands. The policy of the Government appears to be to have the post filled up by rotation from among the candidates registered in the Employment Exchange, and this is to go on till regular appointments are made through Public Service Commission or other competent authority. There is always a heavy backlog of candidates registered in the Employment Exchange. They are given temporary posting for less than 180 days by rotation. Such a policy has been adopted in the peculiar conditions prevailing in the State where jobs in private employment are few, and there is a clamour for Government employment. In such circumstances, it cannot be said that the policy behind the proviso in R. 9 last extracted above is unreasonable.” 8. In **Sadanandan v. Circle Inspector** _:_ ILR 1994 (1) Kerala 701, the same Division Bench held that the service of a provisional appointee under R. 9(a)(i) of KS&SSR who continued beyond the period specified in the appointment order is liable to be terminated even before any candidate recruited through PSC joins duty. The very same view was reiterated in the judgment in **Vinod V State of Kerala** : 1998(1) KLT 607. Therefore, the validity of Rule 9(a) (i) does not require any fresh consideration. The claim of petitioners to continue till PSC hands join duty is also untenable in the light of the aforesaid judgments, which interpreted the provisions under Rule 9(a) (i) of KS&SSR. The WP(C).No. 27242 of 2018 9 challenge against Ext P3 rank list is liable to be rejected for non-impleadment of those included in the ranked list, also. The Writ petition is dismissed accordingly. **Sd/-** **P.V.ASHA** > ajt/30/08/18 **Judge** ## **APPENDIX** ## **PETITIONER'S/S' EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE ORDER DATED 20.03.2017 ISSUED BY THE KERALA STATE POLLUTION CONTROL BOARD.** **EXHIBIT P2 A TRUE COPY OF THE NOTICE DATED 18/04/2018 ISSUED BY THE 4TH RESPONDENT/CHAIRMAN OF KSPCB TO THE 21ST PETITIONER** **EXHIBIT P3 A TRUE COPY OF THE RANK LIST FOR THIRUVANANTHAPURAM, ERNAKULAM AND KOZHIKODE REGIONS. EXHIBIT P4(1) A LEGIBLE COPY OF EXHIBIT P4** **EXHIBIT P4 A TRUE COPY OF THE COMMUNICATION DATED 04/04/2018 ISSUED BY THE DIRECTOR OF EMPLOYMENT TO THE CHAIRMAN OF KSPCB.** **EXHIBIT P5 A TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONERS BEFORE THE CHIEF MINISTER OF KERALA.** **EXHIBIT P6 A TRUE COPY OF THE REPLY TO THE UNSTARRED QUESTION NO. 4322 RAISED IN THE KERALA STATE LEGISLATIVE ASSEMBLY ON 21/03/2018 BY SRI. M. VINCENT, MLA BY THE CHIEF MINISTER OF KERALA.**