C. Rajasekharan v. State of Kerala and District & Sessions Judge, Thiruvananthapuram

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN** ## **WEDNESDAY, THE 20TH DAY OF FEBRUARY 2013/1ST PHALGUNA 1934** ## **WP(C).No. 16708 of 2009 (G)** **----------------------------** **PETITIONER(S):** **--------------------------** **C.RAJASEKHARAN, PEON, MUNSIFF'S COURT, VARKALA, THIRUVANANTHAPURAM- 695 141.** **BY ADVS.SRI.B.RAGUNATHAN SRI.V.V.MATHEW SRI.R.SRINATH SRI.P.PRASANTH** **RESPONDENT(S):** **----------------------------** **1. STATE OF KERALA, REP.BY CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM-695 001.** **2. DISTRICT AND SESSIONS JUDGE, THIRUVANANTHAPURAM-695 035.** **BY SENIOR GOVERNMENT PLEADER SRI. M.A. FAYAZ** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20-02-2013, ALONG WITH W.P.(C) NOS.18746/2012 & 4721/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 16708 of 2009 (G)** ## **APPENDIX** **PETITIONER'S EXHIBITS** **EXHIBIT-P1: TRUE COPY OF CERTIFICATE NO.793/05 DATED 7.3.2005 ISSUED BY THE MEDICAL BOARD, MEDICAL COLLEGE, THIRUVANANTHAPURAM** **EXHIBIT-P2: TRUE COPY OF THE ORDER DATED 10.12.2008 OF THE 2ND RESPONDENT** **EXHIBIT-P3: TRUE COPY OF THE JUDGMENT DATED 2.2.2005 IN W.P.(C) NO.37371 OF 2003-Y** **EXHIBIT-P4: TRUE COPY OF ORDER NO.E/233/05/ECT DATED 9.11.2005 OF THE ENQUIRY COMMISSIONER AND SPECIAL JUDGE, THIRUVANANTHAPURAM** **EXHIBIT-P5: TRUE COPY OF THE REPRESENTATION DATED 15.5.2009** **RESPONDENTS' EXHIBITS :** **NIL** //True copy// P.A. TO JUDGE ## **P.N.RAVINDRAN, J.** ## **-------------------------------------W.P.(C) Nos.16708 of 2009, 18746 of 2012 & 4721 of 2013** **--------------------------------------Dated this the 20[th] day of February, 2013** ## **J U D G M E N T** A common issue arises in these writ petitions. They were therefore heard together and are being disposed of by this common judgment. ## **W.P.(C) No.16708 of 2009** 2. The petitioner herein, a person with physical disability was appointed as Peon on a provisional basis for a period of 179 days under rule 9(a)(i) of the Kerala State and Subordinate Services Rules, 1958 (herein after referred to as the KS & SSR for short) by Ext.P2 appointment order dated 10.12.2008. Along with the petitioner 12 other persons were likewise appointed as Peons on a provisional basis and posted in various courts and tribunals in Thirvuvananthapuram District. The petitioner was posted in the Munsiff's Court, Varkala. 3. The petitioner and 12 others named in Ext.P2 were selected and appointed after they were advised for appointment by the District Employment Officer, Thiruvananthapuram. It is stipulated in Ext.P2 order that the appointment is for a period not exceeding 179 days or till a regular hand joins duty or it is otherwise ordered, whichever event happens earlier. The term of 179 days for which the petitioner W.P.(C) Nos.16708 of 2009, 18746 of 2012 & 4721 of 2013 2 in W.P.(C) No.16708 of 2009 was appointed was to expire on 18.6.2009. A few days prior to that he submitted Ext.P5 representation dated 15.5.2009 before the second respondent requesting that his service may not be terminated and that he may be regularized in service. The instant writ petition was thereafter filed on 15.6.2009 seeking a writ in the nature of mandamus commanding the respondents to regularize him in service and to allow him to continue in service till he attains the age of superannuation. Relying on rule 4 of the Special Rules for the Kerala Last Grade Service, it is contended that the appointment to the post of Peon which is category 2(k) in the Kerala Last Grade Service can be made by direct recruitment through the Employment Exchange, that the petitioner's name was sponsored by the District Employment Officer, Thiruvananthapuram and he was appointed by the District Judge, Thiruvananthapuram, the competent authority and therefore, as the method of appointment through the Employment Exchange is an accepted method of appointment and as he is continuing in service with effect from 22.12.2008 without break, against a permanent vacancy, he is entitled to be regularized in service. Relying on Ext.P3 judgment delivered by a learned single Judge of this Court in W.P.(C) No.37371 of 2003 it is contended that this Court had directed the services of a Sweeper/Watchman appointed W.P.(C) Nos.16708 of 2009, 18746 of 2012 & 4721 of 2013 3 in the Court of the Enquiry Commissioner & Special Judge, Thiruvananthapuram to be regularized, that the said direction was complied with by Ext.P4 order dated 9.11.2005 and therefore, the petitioner is entitled to similar treatment. Relying on the provisions contained in the Persons with Disability (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, it is contended that the petitioner has the right to continue in service on a regular basis. 4. A counter affidavit dated 16.11.2009 has been filed on behalf of the first respondent. In paragraph 2 it is stated that, as no select list of Peons was available, 4 vacancies of Last Grade Servants were reported to the Kerala Public Service Commission on 15.3.2007 and later 9 vacancies were reported on 5.11.2007, that the Kerala Public Service Commission vide letter dated 21.8.2007 and the District Officer, Kerala Public Service Commission, Thiruvananthapuram in his letter dated 16.11.2007 intimated that no ranked list of Peons was available and therefore, the said vacancies were reported to the District Employment Exchange, Thiruvananthapuram. In paragraph 3 thereof it is stated that, the appointment of the petitioner was not under the quota for persons with disability and that the appointment of the petitioner was purely provisional and temporary. In paragraph 7 it W.P.(C) Nos.16708 of 2009, 18746 of 2012 & 4721 of 2013 4 is stated that, a ranked list of Last Grade Employees is now available with Kerala Public Service Commission, that all vacancies including the vacancy against which the petitioner was appointed on a provisional basis have been reported to the Kerala Public Service Commission and candidates are being advised against the said vacancies. In paragraph 8 it is stated that, appointment to the post of Peon in the Judicial Department is made through the Kerala Public Service Commission and whenever there is no ranked list, appointment is made through the Employment Exchange on a temporary basis. It is contended that appointment through the Employment Exchange is not a method of recruitment. A counter affidavit dated 10.7.2012 has been filed on behalf of the second respondent, reiterating the contentions raised in the counter affidavit filed on behalf of the first respondent. In paragraph 6 it is specifically stated that the petitioner was appointed as Peon on a provisional basis from the list of candidates obtained from the Employment Exchange since there was no ranked list available with the Kerala Public Service Commission for regular appointment. ## **W.P.(C) No.18746 of 2012** 5. The petitioner herein, who claims to be a person with disability was appointed as Lower Division Typist in the Munsiff's Court, Varkala W.P.(C) Nos.16708 of 2009, 18746 of 2012 & 4721 of 2013 5 as per Ext.P8 order dated 7.2.2012. Along with the petitioner 4 other persons were likewise appointed as Lower Division Typist and posted in various courts in Thiruvananthapuram District after their names were sponsored by the District Employment Officer, Thiruvananthapuram. It is stipulated that the appointment is purely provisional for a period not exceeding 179 days or till a regular hand joins duty or it is otherwise ordered, whichever event happens earlier. The instant writ petition was filed on 7.8.2012, relying on the interim order passed by this Court in W.P.(C) No.16708 of 2009 whereby this Court had directed retention of the petitioner in that writ petition in service on a provisional basis until further orders. It is contended that as the petitioner was appointed through the Employment Exchange and he is qualified for the post of Lower Division Typist, he is entitled to continue till a fresh provisional appointment is made through the Employment Exchange or a regular appointment is made through the Kerala Public Service Commission. In this writ petition, the petitioner seeks an order directing the respondents to retain him in service without terminating his service on 10.8.2012. The petitioner also seeks an order staying the termination of his service until a fresh appointment or a regular appointment is made to the post of Lower Division Typist through proper channel. W.P.(C) Nos.16708 of 2009, 18746 of 2012 & 4721 of 2013 6 ## **W.P.(C) No.4721 of 2013** 6. The petitioner herein is the petitioner in W.P.(C) No. 18746 of 2012. The relief sought in this writ petition is for an order directing the fourth respondent to post the seventh respondent in an open vacancy in Thiruvananthapuram District and to permit the petitioner to continue in service for at least three months. It is contended that there are three posts of Lower Division Typists in the Munsiff's Court, Varkala that including the petitioner only two posts are filled up and therefore even if the seventh respondent, a candidate advised by the Kerala Public Service Commission and appointed by Ext.P10 order dated 7.2.2013, is to be accommodated, the service of the petitioner need not be disturbed. It is also contended that besides the vacant post in the Munsiff's Court, Varkala, a post of Lower Division Typist is lying vacant in the Sub Court at Attingal and therefore, the seventh respondent can be accommodated in that vacancy. 7. I heard Sri.B.Raghunathan, learned counsel appearing for the petitioner in W.P.(C) No.16708 of 2009, Sri.P.Haridas, learned counsel appearing for the petitioner in W.P.(C) Nos.18746 of 2012 and 4721 of 2013, Sri.M.A.Fayaz, the learned Government Pleader appearing for the State of Kerala and Sri.Elvin Peter, learned counsel appearing for the second respondent in W.P.(C) No.18746 of 2012. I have also gone W.P.(C) Nos.16708 of 2009, 18746 of 2012 & 4721 of 2013 7 through the pleadings and the materials on record. The claim of the petitioner in W.P.(C) No.18746 of 2012 who is also the petitioner in W.P.(C) No.4721 of 2013 is that he is entitled to continue in service until a fresh provisional or regular appointment is made. That contingency has now arisen by virtue of the appointment of the seventh respondent by order No.C1-7/2013 dated 7.2.2013 issued by the District Judge, Thiruvananthapuram. By that orde,r 12 candidates including the seventh respondent who were advised by the Kerala Public Service Commission were appointed as Lower Division Typists and posted in different courts. The relief sought by the petitioner in W.P.(C) No.18746 of 2012 and in the second writ petition filed by him namely W.P.(C) No.4721 of 2013 is to permit him to continue in service for a further period of three months. Such a relief is sought on the allegation that vacancies are available in the Munsiff Court, Varkkala and in the Sub Court at Attingal. In the order appointing the petitioner in W.P.(C) No.18746 of 2012, it is specifically stated that the appointment is purely provisional under rule 9(a)(i) of the KS&SSR, for a period not exceeding 179 days or till a regular hand joins duty or it is otherwise ordered, whichever event happens earlier. It is evident from the order dated 7.2.2013 referred to above, issued by the District Judge, Thiruvananthapuram that a ranked list of candidates selected W.P.(C) Nos.16708 of 2009, 18746 of 2012 & 4721 of 2013 8 for appointment as Lower Division Typist in the Civil Judicial District of Thiruvananthapuram is presently in force and that candidates included in the ranked list are awaiting appointment. A Full Bench of this Court has in **Radha** v. **District Medical Officer** (2002(2) KLT 711) held that a person appointed on a provisional basis under rule 9(a)(i) of Part-II of the KS&SSR has no right to continue in service beyond the term for which he or she was appointed or to claim regularization and that he cannot also seek re-appointment having regard to the 9[th] proviso to rule 9(a)(i) of Part-II of the KS&SSR. Having regard to the admitted fact that a ranked list of candidates selected for appointment as Lower Division Typist in Thiruvananthapuram District is presently in existence, I am of the opinion that on the terms of order of appointment, a copy of which is on record as Ext.P8 in W.P.(C) No.18746 of 2012, the petitioner who was appointed only on provisional basis cannot seek or be granted the reliefs prayed for by him in the two writ petitions. W.P.(C) Nos. 18746 of 2012 and 4721 of 2013 fail and are accordingly dismissed. 8. The claim of the petitioner in W.P.(C) No.16708 of 2009 also likewise reserves to be rejected. However, the learned counsel appearing for the petitioner contended relying on Ext.P3 judgment of this Court that as the appointment through the Employment Exchange W.P.(C) Nos.16708 of 2009, 18746 of 2012 & 4721 of 2013 9 is a prescribed method of appointment, the petitioner in W.P.(C) No.16708 of 2009 is entitled to be treated as a person appointed on a regular basis. In my opinion, there is no merit in the said contention as well. Ext.P3 judgment of this Court discloses that the petitioner therein was appointed as Sweeper-cum-Watchman in the Court of the Enquiry Commissioner and Special Judge, Thiruvananthapuram after his name was sponsored by the Divisional Employment Exchange, Thiruvananthapuram. The post of Sweeper-cum-Watchman is category 4(a) in the Special Rules for the Kerala Last Grade Service. In rule 5 thereof it is stipulated that the appointment to category 4 by direct recruitment can be made through the Employment Exchange, if part time contingent employees in the Health Services Department, Indian Systems of Medicine Department, Homoeo Department, Employees State Insurance Department and Medical Colleges are not available. The method of appointment prescribed for the posts falling in category 4 of the Special Rule for the Kerala Last Grade Service is as follows: (a) (i) 50% of the posts in the Departments of Health Services, Indian Systems of Medicine (including Ayurveda Colleges), Homoeo, employees' State Insurance and Medical Colleges shall be filled up by promotion of Part-time Contingent Employees in these Departments concerned on the basis of seniority by the respective Appointing Authorities. (ii) the remaining 50% of the posts in the Department W.P.(C) Nos.16708 of 2009, 18746 of 2012 & 4721 of 2013 10 specified under item(i) above shall be filled up by the respective Appointing Authorities by promotion from the candidates advised by the District Collectors from the common seniority list of Part-time Contingent Employees prepared on Revenue District-wise basis. (iii) In the absence of suitable hands under items (i) and (ii) above, by direct recruitment through Employment Exchange. 9. The method of appointment prescribed in the Special Rules for the Kerala Last Grade Service for the posts in category 2 is by direct recruitment. As against the posts in category 2, it is not stipulated that the appointment can be made through the Employment Exchange. Rule 3 of KS&SSR stipulates that all first appointments to the service shall be made by the appointing authority on the advice of the Commission in respect of the posts falling within the purview of the Commission and in all other cases by the appointing authority from a list of approved candidates prepared in the prescribed manner. The petitioner in W.P.(C) No.16708 of 2009 was provisionally appointed as Peon under rule 9(a)(i) of Part II of KS&SSr. The regular method of appointment for the post of Peon which is category No.2 in the Special Rules for Kerala Last Grade Service is by direct recruitment which means direct recruitment on advice by the Kerala Public Service Commission. Unlike in the case of category 4, it is not stipulated that W.P.(C) Nos.16708 of 2009, 18746 of 2012 & 4721 of 2013 11 posts in category 2 can be filled up by direct recruitment through the Employment Exchange. Therefore, the appointment of the petitioner in W.P.(C).No.16708 of 2009 through the Employment Exchange consequent on his name being sponsored by the District Employment Officer, Thiruvananthapuram cannot said to be a regular method of appointment. 10. A Division Bench of this Court had occasion to consider a similar issue in **Sreekala** v. **Supdt. Oldage Home** (2008 (2) KLT 13), wherein it was held that there can be appointment on a provisional basis to various posts borne in the Kerala Last Grade Service. It was held that even if one of the methods of appointment to a post in the Last Grade Service is through the Employment Exchange, still there can be provisional appointment to that post. In the instant case, it is not in dispute that the unit of appointment is Thiruvananthapuram District. Ext.P2 order of appointment discloses that the District Employment Officer, Thiruvananthapuram alone had sponsored the names of the candidates, thereby indicating that candidates from all the Employment Exchanges in Thiruvananthapuram District were not sponsored. That apart, going by rule 5 of the Special Rules for the Kerala Last Grade Service in respect of category 2, appointment through the Employment Exchange is not a regular method of W.P.(C) Nos.16708 of 2009, 18746 of 2012 & 4721 of 2013 12 appointment. Therefore for that reason also, I am of the opinion that the petitioner is not entitled to a declaration to the effect that he was regularly appointed or claim regularization in service. As held by the Full Bench of this Court in **Radha** v. **District Medical Officer** (2002 (2) KLT 711), the petitioner who was appointed purely on a provisional basis under rule 9(a)(i) of the KS&SSR for a specified period, cannot seek or be granted regularization in service or allowed to continue in service. He cannot also claim reappointment based on his prior provisional appointment. The respondents have in their counter affidavits also stated that the petitioner's appointment was purely provisional as a stop-gap arrangement in view of the fact that a ranked list of candidates was not available. They have also stated that a ranked list of Last Grade Employees is now available with the Kerala Public Service Commission. Therefore, for that reason also, the petitioner cannot any longer continue in service. I accordingly hold that there is no merit in W.P.(C) No.16708 of 2009 as well. The said writ petition fails and is dismissed. Sd/- **P.N.RAVINDRAN, JUDGE.** Rkc // true copy// PA to Judge