Anjukrishnan K.G., Nivya Sreesan.P., Philomena Mini.K.T., Jhansi Rani.C., Sunitha.K.V. v. Kerala Forest Development Corporation Ltd., Kerala Public Service Commission, State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN TUESDAY, THE 5[TH] DAY OF JULY 2022 / 14TH ASHADHA, 1944** ## **WP(C) NO. 15401 OF 2022** ## **PETITIONERS:** 1 ANJUKRISHNAN.K.G AGED 30 YEARS D/O. P.KRISHNAN KUTTY, KRISHNAGEETHAM, GANDHI JUNCTION, KOTTARAKKARA.P.O., KOLLAM 691506. 2 NIVYA SREESAN.P., AGED 32 YEARS, D/O. SREESAN, PUTHIYA PURAYIL HOUSE, NEAR CHAITHANYA HOSPITAL, KANNUR, THALAP, KANNUR-2. 3 PHILOMENA MINI.K.T., AGED 44 YEARS, D/O. K.O. THOMAS, ARAKKAL HOUSE, NEAR SURYA DECORATION, KOTHAKULAM, ERNAKULAM, KAITHARAM.P.O., PIN683519. 4 JHANSI RANI.C., AGED 34 YEARS, D/O.UTHAMAN, KAAYAKKAL THAZHATH, KIZHAKKUMMURI, KAKKODI, KOZHIKODE-673611. 5 SUNITHA.K.V., AGED 42 YEARS, D/O. K.M.VIJAYAN, KUNNATH PARAR BIL, MNNATHAZHAM, ERNAKULAM-683511,NOW RESIDING AT KANNANCHIRANIKATHIL HOUSE, EAST APPANGADU, NJARAKKAL P.O.,TRA LANE, ERNAKULAM, PIN-682 505. BY ADVS. S.SANAL KUMAR BHAVANA VELAYUDHAN T.J.SEEMA 1 KERALA FOREST DEVELOPMENT CORPORATION LTD. REPRESENTED BY ITS MANAGING DIRECTOR, AARANYAKOM, KARAPUZHA, KOTTAYAM-686003. 2 KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, PATTOM, THIRUVANANTHAPURAM - 695 004. 3 STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM - 695 001. BY ADV SMT.KABANI DINESH, SC, KFDC BY SRI.P.C.SASIDHARAN-SC, KPSC ## **RESPONDENTS:** THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C)No.15401 OF 2022 2 ## **JUDGMENT Dated this the 5[th] day of July, 2022** ## This writ petition is filed seeking the following relief: _“i) Issue a writ of mandamus or other appropriate writ, order or direction directing the 1[st] respondent to issue appointment letter pursuant to Ext.P4 to P8 advice memos issued by the 2[nd] respondent appointing the respective petitioners for filling up the vacancies reported by the 1[st] respondent Corporation to the Public Service Corporation”._ 2. Heard the learned counsel for the petitioners, the learned Standing Counsel for the 1[st] respondent, the learned Standing Counsel for the KPSC as well as the learned Government Pleader. 3. It is submitted by the learned counsel for the petitioners that the petitioners had participated in the selection process pursuant to Exhibit P1 notification for appointment to the post of Confidential Assistant Grade-II in various Government owned Companies/Corporation/Boards. They had been duly included in Exhibit P2 rank list W.P.(C)No.15401 OF 2022 3 and Exhibits P4 to P8 advise memos were also issued on 23.11.2021 for appointment under the 1[st] respondent. However, it is submitted that the 1[st] respondent took a stand that the advice memos need not be honoured since there is no requirement of Confidential Assistant Grade II/Stenographer Grade-II in the 1[st] respondent and that their financial condition does not permit the engagement of the petitioners. Learned counsel for the petitioners submits that in reply to a query raised by the petitioners under the Right to Information Act, Exhibit P10 reply had been given by the competent authority under the 1[st] respondent stating that 8 posts of Confidential Assistant Grade-II/Stenographer/Steno Typist available in the 1[st] respondent Corporation have not been abolished and that five vacancies have been reported to the PSC. The learned counsel for the petitioners would W.P.(C)No.15401 OF 2022 4 contend that the petitioners are entitled for appointment, in view of the advice made by the PSC on the reporting of the vacancies by the 1[st] respondent. Reliance is placed on the judgment of this Court in W.P.(C) No.4104 of 2021 and of a Division Bench of this Court in **Kerala State Road** **Transport Corporation and Another v. Soumya and Others** [2018 (4) KHC 816]. 4. A counter affidavit has been placed on record by the 1[st] respondent. It is contended therein that the 1[st] respondent had reported 5 vacancies of Steno Typist Grade II during the period 2010-2013 to the 2[nd] respondent by Exhibits R1(a) and R1(d). At the time of reporting of vacancies, computerization was in its infancy and dictation and transcribing for office work was the norm. It is submitted that the offices of the 1[st] respondent are now completely computerized and all typing works W.P.(C)No.15401 OF 2022 5 are being done by the clerical staffs at all levels. The post of steno typist is therefore redundant as far as the 1[st] respondent is concerned and there is no work available for steno typist. On 23.11.2021, the 2[nd] respondent had intimated the 1[st] respondent that the candidates named in the list are adviced to the post. The 1[st] respondent had informed the 2[nd] respondent to cancel the recruitment process, as the KFDC does not intend to fill up the posts. It is stated that in response to this communication the 2[nd] respondent had informed that the vacancies once reported cannot be cancelled by Exhibit R1(f) termination. It is stated that since there is no requirement for Steno Typist Grade II, a further communication Exhibit R1(g) was sent on 12.04.2022 intimating the 2[nd] respondent about the financial burden the 1[st] respondent has to bear if these appointments are made. It is further submitted that the 1[st] respondent W.P.(C)No.15401 OF 2022 6 has already prepared revised Service Rules and it is submitted to the Board as well as to the Government for approval and sanction in which the post of Steno Typist was not included. It is stated that the 1[st] respondent is only slowly recovering from precarious financial situation and additional financial burden will adversely affect the KFDC and its financial stability. 5. The learned counsel for the respondent places reliance on a decision of the Apex Court in **Baitarani Gramiya Bank v. Pallab Kumar** [2004 (9) SCC 100] in support of the contention that a person does not have any legal right to be appointed only because his name appears in the selection list. It is contended that since the Corporation does not intend to fill up the posts in any manner, the petitioners have no cause of action and cannot complain of any discrimination in this regard. W.P.(C)No.15401 OF 2022 7 6. I have considered the contentions advanced. It is not disputed before me that the 1[st] respondent had reported five vacancies of Steno Typist Grade II between the period from 2010 to 2013 to the 2[nd] respondent. Exhibit P1 notification was issued on 28.03.2015 calling for applications. The petitioners had responded to Exhibit P1 and had participated in the selection process and had been duly included in Exhibit P2 rank list. In view of the reported vacancies, the 2[nd] respondent had issued advice memos to the petitioners, as evident from Exhibits P4 to P8. It is apparently only after receipt of the advice memos that the 1[st] respondent had addressed communications to the 2[nd] respondent stating they do not intend to fill up the vacancies, which were reported between 2010-2013. It is the further case of the respondent that they have taken steps to revise the Service Rules and the Board was W.P.(C)No.15401 OF 2022 8 consulted and the proposal for revision of the Service Rules, which does not contain the post of Steno Typist Grade II has been placed before the Government for approval. 7. A Division Bench of this Court in **Kerala State Road Transport Corporation and Another v. Soumya and Others** (2018 (4) KHC 816 (DB)] has held that where advice has been made from a ranked list pursuant to reporting of vacancies by the KSRTC, the contention that the Corporation does not require the services of the Junior Assistants, who had been adviced for appointment would not absolve them of the liability to make appointments, in view of the fact that the vacancies had been duly reported to the KPSC. However, the writ appeal has been disposed of with appropriate directions. 8. This Court by judgment dated 09.04.2021 in W.P.(C) No.4014/2021 had specifically considered W.P.(C)No.15401 OF 2022 9 an identical situation, where the Malabar Cements, to which the petitioners therein had been adviced for appointment, had refused to make appointments on the ground that they do not require the services of the petitioners. In view of the fact that the vacancies had been duly reported to the KPSC, it was held that the employer cannot contend that they do not propose to fill up the posts. In the said case also it was admitted that sanction from the Government was required for reduction/abolition of posts and that such sanction had not been obtained. It was held that the petitioners who had found place in the rank list cannot be made to suffer due to the act of the employer due to financial stringency. A direction has been issued to the 3[rd] respondent to appoint the petitioners pursuant to advice from the KPSC and if they do not require their services, they shall be discharged for want of vacancy. The KPSC was, W.P.(C)No.15401 OF 2022 10 therefore, directed to advice them for appointment in available vacancies in other establishments and the petitioners would be entitled to reckon their date of advice in terms of the proviso to Rule 27(c) of Part II KS & SSR. In the instant case also it is not disputed before me that the posts do not stand abolished even as on today pursuant to any competent orders passed by the respondents or the Government, in accordance with law. 9. In the above view of the matter, I am of the opinion that the contention taken by the 1[st] respondent that they cannot fill up the vacancies which were reported by them to the 2[nd] respondent and against which advice had been made cannot be accepted. The decisions relied on by the learned counsel for the 1[st] respondent also have no application in the facts of this case, since advice has already been made by the KPSC pursuant to W.P.(C)No.15401 OF 2022 11 reporting of the vacancies by the 1[st] respondent. In the above view of the matter, this writ petition is allowed. There will be a direction to the 1[st] respondent to issue appointment orders forthwith to the petitioners in pursuance to Exhibit P4 to P8 advice memos at any rate within a period of three weeks from the date of receipt of a copy of this judgment. Further contentions are left open to be decided in appropriate proceedings. **Sd/ANU SIVARAMAN JUDGE** SSK/05 /07 W.P.(C)No.15401 OF 2022 12 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** |Exhibit P1|A TRUE COPY OF THE GAZETTE NOTIFICATION DATED<br>28.3.2015 (CATEGORY NO.44/2015)| |---|---| |Exhibit P2|A TRUE COPY OF THE NOTIFICATION DATED 1.2.2021<br>PUBLISHED BY THE 2ND RESPONDENT| ||A TRUE COPY OF THE APPOINTMENT CHART PREPARED| |Exhibit P3|BY THE KPSC PURSUANT TO THE REPORTING OF 5| ||VACANCIES OF CONFIDENTIAL ASSISTANT GRADE II| ||A TRUE COPY OF THE ADVICE MEMO ISSUED FOR| |Exhibit P4|APPOINTMENT OF THE 1ST PETITIONER AS<br>CONFIDENTIAL ASSISTANT GRADE II IN THE 1ST| ||RESPONDENT CORPORATION ON 23.11.2021| ||A TRUE COPY OF THE ADVICE MEMO ISSUED FOR| |Exhibit P5|APPOINTMENT OF THE PETITIONER AS CONFIDENTIAL<br>ASSISTANT GRADE II IN THE 1ST RESPONDENT| ||CORPORATION ON 23.11.2021| ||A TRUE COPY OF THE ADVICE MEMO ISSUED FOR| |Exhibit P6|APPOINTMENT OF THE PETITIONER AS CONFIDENTIAL<br>ASSISTANT GRADE II IN THE 1ST RESPONDENT| ||CORPORATION ON 23.11.2021| ||A TRUE COPY OF THE ADVICE MEMO ISSUED FOR| |Exhibit P7|APPOINTMENT OF THE PETITIONER AS CONFIDENTIAL<br>ASSISTANT GRADE II IN THE 1ST RESPONDENT| ||CORPORATION ON 23.11.2021| ||A TRUE COPY OF THE ADVICE MEMO ISSUED FOR| |Exhibit P8|APPOINTMENT OF THE PETITIONER AS CONFIDENTIAL<br>ASSISTANT GRADE II IN THE 1ST RESPONDENT| ||CORPORATION ON 23.11.2021| ||A TRUE COPY OF THE APPLICATION SUBMITTED BY THE| |Exhibit P9|5TH PETITIONER BEFORE THE STATE PUBLIC<br>INFORMATION OFFICER OF THE 1ST RESPONDENT| ||CORPORATION DATED 2.3.2022| ||A TRUE COPY OF THE INFORMATION FURNISHED BY THE| |Exhibit P10|STATE PUBLIC INFORMATION OFFICER OF THE 1ST| ||RESPONDENT CORPORATION DATED 26.3.2022| |Exhibit P11|A CLIPPING OF NEWS PAPER REPORT APPEARED IN THE<br>MATHRUBHUMI DAILY NEWS PAPER DATED 7.4.2022| |**RESPONDENT EXHIBITS**|| ||TRUE COPY OF THE COMMUNICATION ISSUED BY THE| |Exhibit R1 A|KFDC TO THE 2ND RESPONDENT VIDE LETTERS NO.E1-| ||3324/09 DATED 24/3/2010| ||RUE COPY OF THE COMMUNICATION ISSUED BY THE| |Exhibit R1 B|KFDC TO THE 2ND RESPONDENT VIDE LETTERS NO.E1-| ||3324/10 DATED 17/11/2011.| W.P.(C)No.15401 OF 2022 13 |||RUE COPY OF THE COMMUNICATION ISSUED BY THE| |---|---|---| |Exhibit R1|C|KFDC TO THE 2ND RESPONDENT VIDE LETTERS NO.E1-| |||3656/11 DATED 3/11/2012| |||TRUE COPY OF THE COMMUNICATION ISSUED BY THE| |Exhibit R1|D|KFDC TO THE 2ND RESPONDENT VIDE LETTERS NO.E1-| |||3656/11 DATED 25/5/2013| |||TRUE COPY OF THE COMMUNICATION VIDE NO.RB (1)| |Exhibit R1|E|1291/2021/GW DATED 23/11/2021 ISSUED BY THE 2ND| |||RESPONDENT TO THE 1ST RESPONDENT KFDC| |||TRUE COPY OF THE COMMUNICATION NO.E1-| |Exhibit R1|F|3381/2021/5094 DTD. 7/1/2022 OF THE 2ND| |||RESPONDENT.| |||TRUE COPY OF THE COMMUNICATION VIDE NO.E1-| |Exhibit R1|G|3381/2021 DTD. 12/4/2022 ISSUED BY THE 1ST| |||RESPONDENT TO THE 2ND RESPONDENT.| SSK //TRUE COPY// PA TO JUDGE