Ardher.S v. State of Kerala and Others; Nikhil Promod v. State of Kerala and Others

# **`N THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE AMIT RAWAL`** ## **`WEDNESDAY, THE 26[TH] DAY OF JULY 2023 / 4TH SRAVANA, 1945`** ## **`WP(C) NO. 30515 OF 2022`** ## **`PETITIONER:`** ``` ARDHER. S AGED 34 YEARS, S/O.T.T.K.SASI, REGIONAL OFFICER (TEMPORARY), KERALA ARTISANS DEVELOPMENT CORPORATION, REGIONAL OFFICE, KOZHIKODE, PIN-673001, RESIDING AT AZAD HOUSE, CHOKLI.P.O, THALASSERY, KANNUR DISTRICT, PIN-670672. ``` ``` BY ADVS. M.SASINDRAN P.SHAHEED ``` ## **`RESPONDENTS:`** ``` 1STATE OF KERALA REPRESENTED BY ITS PRINCIPAL SECRETARY, INDUSTRIES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001. ``` ``` 2THE KERALA ARTISANS DEVELOPMENT CORPORATION, REPRESENTED BY IS MANAGING DIRECTOR, PATTOM.P.O, KESAVADASAPURAM.P.O, THIRUVANANTHAPURAM-695004. ``` ``` 3THE MANAGING DIRECTOR, KERALA ARTISANS DEVELOPMENT CORPORATION, PATTOM.P.O, KESADASAPURAM, THIRUVANANTHAPURAM-695004. ``` ``` 4THE KERALA PUBLIC SERVICE COMMISSION REPRESENTED BY ITS SECRETARY, PATTOM, THIRUVANANTHAPURAM-695004. ``` ## **`WP(C)NOs.30515/2022 & 8712/2023`** ``` 2 ``` ``` BY ADVS. P.K.VARGHESE M P ASHOK KUMAR K.S.ARUN KUMAR BINDU SREEDHAR ASIF N ``` ``` SRI. JIMMY GEORGE - GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.07.2023, ALONG WITH WP(C).8712/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C)NOs.30515/2022 & 8712/2023 ``` ``` 3 ``` # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR. JUSTICE AMIT RAWAL WEDNESDAY, THE 26[TH] DAY OF JULY 2023 / 4TH SRAVANA, 1945 ``` ## **`WP(C) NO. 8712 OF 2023`** ## **`PETITIONER:`** ``` NIKHIL PROMOD S/O P.N PROMOD, AVITTAM, NH BYE PASS LORDS HOSPITAL JUNCTION ANAYARA P.O THIRUVANANTHAPURAM, PIN - 695029 ``` ``` BY ADVS. M.P.ASHOK KUMAR BINDU SREEDHAR ASIF N ``` ## **`RESPONDENTS:`** - `1 STATE OF KERALA REPRESENTED BY IT'S PRINCIPAL SECRETARY, INDUSTRIES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001` - `2 KERALA ARTISANS DEVELOPMENT CORPORATION LTD REPRESENTED BY ITS MANAGING DIRECTOR, KESAVADASAPURAM, PATTOM P.O. THIRUVANANTHAPURAM, PIN - 695004` ``` 3THE MANAGING DIRECTOR KERALA ARTISANS DEVELOPMENT CORPORATION, KESAVADASAPURAM PATTOM P.O. THIRUVANANTHAPURAM, PIN - 695004 ``` - `4 THE KERALA PUBLIC SERVICE COMMISSION REPRESENTED BY ITS SECRETARY, PATTOM, THIRUVANANTHAPURAM, PIN - 695004` ## **`WP(C)NOs.30515/2022 & 8712/2023`** ``` 4 ``` ``` BY ADVS. K.S.ARUN KUMAR P.K.VARGHESE(K/197/1998) ``` ``` SRI.JIMMY GEORGE - GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.07.2023, ALONG WITH WP(C).30515/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ## **`WP(C)NOs.30515/2022 & 8712/2023`** ## **`5`** ## **JUDGMENT** [WP(C) Nos.30515/2022, 8712/2023] 1. This order of mine shall dispose of two writ petitions bearing Nos.30515 of 2022 titled as Ardher.S. v. State of Kerala and others (first writ petition) and W.P. (C).No.8712 of 2023 titled as Nikhil Promod v. State of Kerala and Others (second writ petition) for the reason that the controversy involved in these cases is based on common facts and law. 2. The facts as narrated in the first writ petition are that on 10.01.2019, petitioner namely Ardher entered into service of Kerala Artisans Development Corporation Ltd. as technical supervisor. Vide order dated 16.01.2021 his appointment was regularised from the date of provisional appointment as 10.01.2019. Probation was completed on 10.01.2021 vide Ext.P2. One vacancy of Regional Officer arose and there was no qualified hand for being appointed under the method of promotion. A request was submitted to ``` WP(C)NOs.30515/2022 & 8712/2023 ``` ``` 6 ``` the Kerala Public Service Commission – respondent No.4 for causing notification for inviting application for selection to the said post. Notification in the ordinary gazatte dated 15.10.2019 Ext.P4 was published. 3. Sri.Shyam, learned counsel appearing on behalf of the petitioner submitted that the service rules of the 2[nd] respondent provided that the feeder post for Regional Officer for the purpose of promotion is technical supervisor and the qualification required is Degree/Diploma in Mechanical/ Electrical/ Electronics/ Industrial Engineering as per 2000 rules. Petitioner on completion of probation had become eligible for promotion and in this regard, submitted a representation dated 15.01.2021 Ext.P5. However, during the pendency of the writ petition vide order dated 30.04.2019, was officiating the charge of Regional Officer. In the meantime, the process of selection was over and two persons were found eligible namely Nikhil Promod and Nidhin Das P. The primary method of appointment to the ``` WP(C)NOs.30515/2022 & 8712/2023 ``` ``` 7 ``` post of Regional Officer is both by direct appointment and by promotion and only in the absence of qualified candidates, the method of direct recruitment can be resorted. Petitioner is qualified and promoted as Regional Officer with effect from the date the probation was declared and not from the date of vacancy. When no action was taken on the representation petitioner approached this Court. This Court while admitting the writ petition, vide interim order dated 26.09.2022 passed the following order: “Admit. The learned Standing Counsel for the respondents to get instructions. Post on 11/10/2022. In the meanwhile, one post of Regional officer shall be set apart for appointment by promotion provisionally and subject to further orders in the writ petition.” 4. Public Service Commission had already issued advice memo to the respondent No.3 for filling up the post of Regional Officer dated 29.12.2022, copy handed over during the course of hearing. Owing to the interdiction by ``` WP(C)NOs.30515/2022 & 8712/2023 ``` ``` 8 ``` this Court, one of the selected candidates who was not offered appointment ie., Sri.Nikhil Promod - petitioner in the second writ petition, has approached this Court with the following Prayers: - i. Issue a writ of mandamus or other appropriate writ or order commanding the respondents 2 and 3 to issue an order appointing the petitioner as Regional Officer in Kerala Artisans Development Corporation in the existing vacancy on the strength of Exhibit P3 appointment chart. - ii. Declare that the petitioner is the only person entitled to be appointed as Regional Officer in the 2[nd] vacancy reserved for Ezhava/Thiyya as shown in Exhibit P3 appointment chart in KADCO. - iii. Dispense with producing English translation of documents in vernacular languages. - iv. Pass such other orders as this Hon’ble Court may deem fit to grant in the circumstances of the case.” The post which the petitioner is seeking appointment is on the basis of community rotation. 6. Sri.M.P.Ashok Kumar, learned counsel appearing on behalf of the petitioner in the second writ petition ``` WP(C)NOs.30515/2022 & 8712/2023 ``` ``` 9 ``` submitted that petitioner in the first writ petition Sri.Ardher is not qualified or eligible for promotion as he had to render a service of five (5) years which would expire in 2024, neither is he qualified as per the amended service rules and prays for dismissal of the first writ petition with exemplary costs as it has unnecessarily dragged the petitioner in the second writ petition (Sri.Nikhik) into the litigation. 7. Adv.K.S.Arun Kumar appearing for Kerala Artisans Development Corporation Ltd. submitted that Sri.Ardher has not come to the Court with clean hands, as, deliberately not placed on record amended Rules by which a candidate seeking promotion to the post of Regional Officer is required to hold not only the Degree and Diploma but also MBA from a recognized university with minimum five years experience which the petitioner is lacking. The interim order is thus not sustainable and liable to be vacated on this ground alone. 8. In rebuttal, Sri.Shyam submitted that there would be a stagnation and the petitioner has approached this Court ``` WP(C)NOs.30515/2022 & 8712/2023 ``` ``` 10 ``` anticipating such situation. 9. I have heard the learned counsel for the parties and appraised the paper books and of the view the first writ petition is liable to be dismissed with exemplary costs, as is an attempt to misdirect this Court by placing on record the old Rules which do not have the criteria of holding qualification of MBA Degree. Government Vide order dated 19.11.2013, copy handed over during the course of hearing, amended aforementioned Rules whereby for the post of Regional Officer, applicant should not only have Degree in Mechanical/ Electrical/ Electronics/ Industrial Engineering from recognised University, but MBA, from a recognised university with minimum five (5) years experience also. Concededly, the probation period of petitioner completed in January, 2021, and five year would be over in 2024. Petitioner could not even have an MBA for his promotion before 2024 but for the reason best known, chosen to make representation and managed to get provisional promotion. ``` WP(C)NOs.30515/2022 & 8712/2023 ``` ``` 11 ``` Provisional promotion would not give any peremptory right of hold said post. Provision of the promotional avenues in the service Rules are required for keeping the hopes of the employees alive for achievement, but the fact remains that the question of stagnation in such circumstances and facts noticed above would not arise. Attempts on behalf of such litigants to stall the selection process actuated on the request submitted by respondent Nos.2 and 3 deserves stern action. For the sake of brevity, the relevant portion of the order dated 19.11.2013 reads as under: “As per the G.O. read above, the Service Rules of Kerala Artisans’ Development Corporation Ltd. was approved. 2. As per the letter read as 2[nd] paper above, the Managing Director, Kerala Artisans’ Development Corporation Ltd., has requested to amend the qualification for the post of Regional Officer as resolved by its Board Meeting held on 17.12.2008. 3. Government have examined the matter in detail in consultation with Kerala Public Service Commission and are pleased to amend the recruitment rules of KADCO for the post of Regional Officer and Project Manager in KADCO, by direct recruitment as follows: ``` WP(C)NOs.30515/2022 & 8712/2023 ``` ``` 12 ``` ## Sl.No. Category Qualificiation 1. Regional Officer 1. Degree in Mechanical/ Electrical/ Electronics/ Industrial Engineering from a recognized University. 2. MBA from a recognised University. 3. Minimum of 5 years experience in the operation and maintenance of industrial machinery and production techniques. 4. Age limit should be specified as “must have completed 18 years and must not have completed 40 years of age as on the 1[st] day of January of the year of Notification with usual relaxation to SC/ST and OBC candidates as per rules. 2. Project Manager 1. Degree in Mechanical/ Electrical/ Electronics/ Industrial Engineering from a recognized University. 2. MBA from a recognised University. 3. A minimum of 10 years experience in the operation and maintenance of industrial machinery and production techniques. 4. Age limit should be specified as “must have completed 18 years and must not have completed 45 years of age as on the 1[st] day of January of the year of Notification with usual relaxation to SC/ST and OBC candidates as per rules. 10. Noticing the aforementioned facts and rules, I am of the view that the first writ petition is wholly contumacious ``` WP(C)NOs.30515/2022 & 8712/2023 ``` ``` 13 ``` and there is no merit therein. Rejection of representation Ext.P7 cannot be said to be erroneous or fallacious. First writ petition W.P(C).30515 of 2022 is dismissed with costs of litigation of Rs.25,000/- (Rupees Twenty Five Thousand only) to be paid to the petitioner in the second writ petition for impelling him to approach this Court for reliefs as aforementioned. 11. Second writ petition W.P(C).8712 of 2023 is allowed. Direction is issued to respondent No.3 to issue appointment letter to the petitioner, forthwith. **Sd/-** **AMIT RAWAL JUDGE** nak ## **`WP(C)NOs.30515/2022 & 8712/2023`** ``` 14 ``` ## **`APPENDIX OF WP(C) 8712/2023`** ``` PETITIONER EXHIBITS ``` ``` Exhibit P1TRUE COPY OF GAZETTE NOTIFICATION DT 15/10/2019 OF THE PSC ``` ``` Exhibit P2TRUE COPY OF THE RANKED LIST DT 26/09/2022 ISSUED BY THE PSC Exhibit P3TRUE COPY OF THE APPOINTMENT CHART DT 29/12/2022 ISSUED BY THE 4TH RESPONDENT ``` ## **`WP(C)NOs.30515/2022 & 8712/2023`** ``` 15 ``` ## **`APPENDIX OF WP(C) 30515/2022`** ``` PETITIONER EXHIBITS ``` ``` Exhibit P1A TRUE COPY OF THE ORDER NO.KADCO/E1/2688/2019 DATED 16.01.2021 ISSUED BY THE 3RD RESPONDENT REGULARISING THE SERVICE OF THE PETITIONER. ``` - `Exhibit P2 A TRUE COPY OF THE ORDER NO.KADCO/E1/2688/2019 DATED 19.1.2021 ISSUED BY THE 3RD RESPONDENT.` - `Exhibit P3 A TRUE COPY OF THE GO(MS)NO.36/09/ID DATED 2-03-09 RELEVANT PORTION OF THE RULES OF RECRUITMENT.` - `Exhibit P4 A TRUE COPY OF THE NOTIFICATION ISSUED BY THE 4TH RESPONDENT IN THE EXTRAORDINARY GAZETTE DATED 15.10.2019 FOR CATEGORY NO.138/2019.` - `Exhibit P5 A TRUE COPY OF THE REPRESENTATION DATED 15.01.2021 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT.` - `Exhibit P6 A TRUE COPY OF THE ORDER NO.KADCO/ESTT/10/2013(1) DATED 30.04.2019 ISSUED BY THE 3RD RESPONDENT.` - `Exhibit P7 A TRUE COPY OF THE LETTER DATED 6.11.2021 ISSUED BY THE 1ST RESPONDENT TO THE 3RD RESPONDENT` - `Exhibit P8 A TRUE COPY OF THE REPRESENTATION DATED 21.12.2021 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT` - `Exhibit P9 A TRUE COPY OF THE ORDER NO.KADCO/E1/2688/2019/522/2022 DATED 24.05.2022 ISSUED BY THE 3RD` ## **`WP(C)NOs.30515/2022 & 8712/2023`** ## **`16`** ## `RESPONDENT.` ## `RESPONDENT EXHIBITS` ``` Exhibit R2 A ``` ``` A TRUE COPY OF THE LETTER NOTIFYING THE FIRST VACANCY OF THE REGIONAL OFFICER POST REPORTED TO KPSC DATED 15.5.2018. ``` ``` Exhibit R2B ``` ``` A TRUE COPY OF THE REGIONAL OFFICER POST REPORTED TO KPSC AFTER GETTING A PROPER DIRECTION FROM THE GOVERNMENT VIDE LETTER NO.IND- K3/202/2019-IND DATED 2.12.2019. ``` - `Exhibit R2 C A TRUE COPY OF THE SUBSEQUENT VACANCY FOR REGIONAL OFFICER REPORTED TO KPSC VIDE ID-7258 DATED 11.12.2019.` - `Exhibit R2 D A TRUE COPY OF THE PETITIONER'S REQUEST FOR TEMPORARY PROMOTION VIDE LETTER DATED 21.12.2021` - `Exhibit R2 E A TRUE COPY OF THE RANK LIST PUBLISHED BY KPSC VIDE RANK LIST NO.556/2022/SSIV W.E.F. 26.9.2022.` ``` PETITIONER EXHIBITS ``` ``` Exhibit P 10A TRUE COPY OF THE APPOINTMENT CHART ISSUED BY THE PUBLIC SERVICE COMMISSION, IN RESPECT OF CATEGORY NO.138/2019 ```