Dr. S. Shailajakumari v. Kerala State Council for Science, Technology and Environment and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN FRIDAY, THE 13[TH] DAY OF JANUARY 2023 / 23RD POUSHA, 1944** ## **WP(C) NO. 24542 OF 2021** ## **PETITIONER:** DR.S.SHAILAJAKUMARI, AGED 52 YEARS TECHNICAL OFFICER, JNTBGRI, PALODE, KARIMANCODE P.O., PACHA, THIRUVANANTHAPURAM , KERALA 695 562. RESIDING AT KEERTHANA BHAVAN, VELLAMKUDI, KALLARA P.O. THIRUVANANTHAPURAM ,KERALA 695 608. BY ADVS. V.JAYADHAR K.P.SATHEESAN (SR.) V.SURESH KUMAR (HARIPAD) G.PRADEEP KUMAR ## **RESPONDENTS:** 1 KERALA STATE COUNCIL FOR SCIENCE, TECHNOLOGY AND ENVIRONMENT, SASTHRA BHAVAN, PATTOM P.O., THIRUVANANTHAPURAM , KERALA 695 004. (REPRESENTED BY ITS EXECUTIVE VICE PRESIDENT). 2 THE JAWAHARLAL NEHRU TROPICAL BOTANIC GARDEN AND RESEARCH INSTITUTE (JNTBGRI), PALODE, KARIMANCODE P.O., PACHA, THIRUVANANTHAPURAM KERALA 695 562. (REPRESENTED BY ITS DIRECTOR). 3 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF KERALA, SCIENCE, TECHNOLOGY AND ENVIRONMENT DEPARTMENT (STED), GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM , KERALA 695 001. 4 REGISTRAR AND STATE PUBLIC INFORMATION OFFICER, JNTBGRI, PALODE, KARIMANCODE P.O. PACHA, THIRUVANANTHAPURAM , KERALA 695 562. 5 DIRECTOR AND APPELALTE ATUHORITY, JNTBGI, PALODE, KARIMANCODE P.O., PACHA, THIRUVANANTHAPURAM , KERALA 695 562. 6 SURESH KUMAR T.S, EX-TECHNICAL OFFICER, JNTBGRI, PALODE, KARIMANCODE P.O. PACHA, THIRUVANANTHAPURAM , KERALA 695 562. RESIDING AT THAIKKAD HOUSE, NAMBAZHIKKAD P.O., MATTAM, THRISSUR ,KERALA 680 602. W.P.(C)No.24542 OF 2021 2 7 USHAKUMARI.J., TECHNICAL OFFICE, JNTBGRI, PALODE, NOW TRANSFERRED AND WORKING AS, TECHNICAL OFFICER, KSCSTE, SASTHRA BHAVAN, PATTOM P.O., THIRUVANANTHAPURAM , KERALA 695 004. RESIDING AT USHAS, KOLLAYI P.O., MADATHARA, KOLLAM DISTRICT, KERALA 691 541. 8 J. ANIL JOHN, TECHNICAL OFFICER, JNTBGRI, PALODE, KARIMANCODE P.O., PACHA, THIRUVANANTHAPURAM KERALA 695 562. RESIDING T ANIL BHAVAN , VIRALI, UCHAKKADA P.O., THIRUVANANTHAPURAM , KERALA 695 506. 9 GOPANRAJ, EX-TECHNICAL OFFICER, JNTBGRI, PALODE, KARIMANCODE P.O., PACHA, THIRUVANANTHAPURAM , KERALA 695 562. RESIDING AT PALAKASSERIL, KANJAVELY P.O., KOLLAM KERALA 691 602. BY ADVS. P.C.SASIDHARAN, SC, KSCSTE C.K.KARUNAKARAN D.SAJEEV S.P.ARAVINDAKSHAN PILLAY N.SANTHA V.VARGHESE PETER JOSE CHRISTO S.A.ANAND K.N.REMYA L.ANNAPOORNA ABHIRAMI K. UDAY KURUVILLA SABU CHRISTY LIGEY ANTONY BABU POTHENCODE BY SRI.V.K.SUNIL-SR.GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C)No.24542 OF 2021 3 ## **JUDGMENT** ## **Dated this the 13[th] day of January, 2023** This writ petition is filed seeking the following reliefs: _“ i. Issue a writ of certiorari or appropriate writ or order, calling for records pertaining to ExhibitP2 notification, Exhibit P9 rank list, Exhibit P15, Exhibit P16, Exhibit P17, P20 appointment orders, declare that the Petitioner is entitled to get her entry appointment as Technical Assistant on the same date of appointment of the 1[st] candidate who was lawfully appointed and joined as Technical Assistant as per Ext.P9 rank list, and to get all consequential benefits such as seniority, promotions pay fixations etc._ _ii. Issue a writ of mandamus or appropriate writ or order, directing the 2[nd] respondent to give the entry appointment on the same date of appointment of the 1[st] candidate who was lawfully appointed and joined as Technical Assistant as per Exhibit P2 notification, forthwith._ _iii. Issue a Writ of mandamus or appropriate writ or order, directing the 2[nd] respondent to give all benefits such as seniority, promotions pay fixations etc. to the Petitioner at par with the benefits given to the 1[st] candidate who was joined as Technical Assistant as per Exhibit P2 notification, forthwith and to pay all arrears of pay and such other benefits,_ W.P.(C)No.24542 OF 2021 4 _with interest, to the Petitioner, within a time frame fixed by this Hon'ble Court.”_ 2. Heard the learned Senior Counsel for the petitioner, the learned Government Pleader appearing for the 3[rd] respondent, learned counsel appearing for respondents 1, 2, 4 and 5 as well as the learned counsel appearing for respondents 6 and 7 as well as respondents 8 and 9. 3. The learned Senior Counsel appearing for the petitioner submits that the petitioner was appointed as Lab/Field Assistant in 1993, under the 2[nd] respondent on contract basis by Exhibit P1 order. It is submitted that Exhibit P2 notification was issued by the 2[nd] respondent for appointment to the post of Technical Assistant and the petitioner applied and though test and interview were conducted, no ranked list was published. The petitioner was not appointed pursuant to poor performance in the test and interview for selection W.P.(C)No.24542 OF 2021 5 as Technical Assistant. However she was assured that her services will be regularized. Later by Exhibit P4, the petitioner was regularized along with several others as Technical Assistant with effect from 26.08.2000. The orders of regularization were subjected to challenge before this Court. However, the challenge was repelled and the regularization was upheld. 4. It is submitted that by Ext.P5 order, the post of Technical Assistant was re-designated as Technical Officer. It is submitted that at the time of the petitioner's assessment promotion, she overheard a conversation between the members of the Assessment Committee that her name had been included in the ranked list prepared for selection as Technical Assistant in 1998. But she was not appointed for accommodating other persons. The petitioner submitted Ext.P6 representation to the W.P.(C)No.24542 OF 2021 6 2[nd] respondent claiming appointment from the ranked list. But no action was taken thereon. Further representations were submitted and the petitioner approached the respondents under the provisions of the Right to Information Act, 2005 seeking copies of the ranked list and the same was not provided to her. She approached the Information Commissioner and ultimately Ext.P8 order was passed directing the details to be provided. Thereafter, the 2[nd] respondent had provided the petitioner with a copy of Ext.P9 ranked list. It is submitted that on perusal of Ext.P9 ranked list, it is seen that the petitioner was ranked as serial No.18 therein and overriding her rank, respondents 6 to 9 had been issued appointment orders. It is submitted that the appointment orders of respondents 6 and 8 are Exts.P15 and P16, and Ext.P12 internal posting order was issued to 20 W.P.(C)No.24542 OF 2021 7 persons including the unranked 8[th] and 9[th] respondents, who were not included in Ext.P9 ranked list. 5. The learned counsel for the petitioner submits that the action of the 2[nd] respondent in not appointing the petitioner from the ranked list while appointing persons, who were lower in the ranked list or were not included in the ranked list is completely vitiated. On these grounds, the prayers are sought for. The decision of the Apex Court in **Vetindia Pharmaceuticals Limited v. State of Uttar Pradesh and Another (2020 KHC 6634)** is relied on by the learned counsel for the petitioner. 6. A counter affidavit has been placed on record by the 1[st] respondent contending that the selection which was now sought to be challenged by the petitioner was initiated on the basis of a notification issued in newspapers on 27.10.1997. It W.P.(C)No.24542 OF 2021 8 is submitted that an interview had been conducted in April 1998 for the post of Technical Assistant (Botany) and in May 1998 for Technical Assistant (Chemistry). It is submitted that the 8[th] and 9[th] respondents were not persons included in Ext.P9 ranked list and that there was a separate interview conducted for the post of Technical Assistant (Chemistry) in May 1998 which is evident from Ext.R1(a) call letter issued to the 8[th] respondent. It is submitted that Ext.P9 ranked list is specifically with regard to Technical Assistant (Botany) and that therefore, the appointment of respondents 8 and 9 is unassailable. It is contended that the further details with regard to the selection are not available to the 1[st] respondent and that the contentions of the petitioner are totally baseless. 7. It is stated that thereafter, 61 contract employees working in the 2[nd] respondent including W.P.(C)No.24542 OF 2021 9 the petitioner were regularized in service from 26.08.2000 and the approval was given to such regularization notionally with effect from 26.08.2000. It is submitted that Ext.P6 representation was submitted on 13.12.2017 and Ext.P7 representation was submitted on 02.02.2018 against the selection conducted in the year 1998. It is stated that the process of selection having been held 23 years back, the respondents are unable to effectively answer the contentions now raised by the petitioner, more than two decades after the selection was finalized. 8. The 2[nd] , 4[th] and 5[th] respondents have also placed a statement on record submitting that the writ petition is hopelessly belated and that the respondents cannot be expected to provide cogent answers to the contentions raised by the petitioner at this distance in time. It is stated that from the W.P.(C)No.24542 OF 2021 10 records available with the office of the 2[nd] respondent, it is seen that the 7[th] respondent was appointed as Technical Assistant considering her experience in the division of Etheno-medicine and Etheno-pharmacology and an office note dated 20.11.1998 authorising such appointment is produced as Ext.R2(a). It is contended that it was not from Ext.P9 ranked list that the 7[th] respondent had been appointed. 9. The decision of the Apex Court in **The Chairman, State Bank of India and Ors. v. M.J.James, (AIR 2022 SC 582)** is relied on by the learned counsel appearing for respondents 2, 4 and 5 to contend that a writ petition cannot be entertained by this Court at this distance in time in the facts and circumstances of the case. 10. The 7[th] respondent has also placed a counter affidavit on record specifically contending W.P.(C)No.24542 OF 2021 11 that she had been appointed on contract basis as Lab Assistant consequent to an interview conducted on 21.01.1993 by Ext.R7(a). It is submitted that though the 7[th] respondent had participated in the selection process pursuant to Ext.P2 notification it was not on the basis of the said selection that she was appointed as Technical Assistant. It is stated that it was on the basis of Ext.R7(b) note of the Registrar, Tropical Botanical Garden and Research Centre, considering the service of the petitioner on a temporary basis that Ext.R7(c) order dated 20.11.1998 had been issued posting the petitioner as Technical Assistant in Botany. It is submitted that subsequently by Ext.R7(d), the 7[th] respondent was given a separate posting order wherein she was posted in the ISM Project on 27.11.1998. It is submitted that the challenge against the appointment of the 7[th] respondent is therefore W.P.(C)No.24542 OF 2021 12 ## totally misconceived and devoid of merits. 11. The 8[th] respondent has also placed a counter affidavit on record. It is the specific case of respondents 8 and 9 that they are persons appointed as Technical Assistants (Chemistry) pursuant to Ext.P2 and that Ext.P9 ranked list is only in respect of Technical Assistants(Botany). It is submitted that the 8[th] respondent was included as rank No.1 in the ranked list pursuant to the interview conducted for the post of Technical Assistant (Chemistry) and that it was from the said ranked list that respondent Nos.8 and 9 were appointed and not from Ext.P9 ranked list. The 8[th] respondent has also produced the call letter received by him dated 24-04-1998 for an interview to be conducted on 11-05-1998 for appointment to the post of Technical Assistants(Chemistry). It is further submitted by the learned counsel appearing W.P.(C)No.24542 OF 2021 13 for the 8[th] respondent that there is absolutely no justification for the challenge raised to the selections conducted in 1998 and that the writ petition is liable to be dismissed on sole ground of delay and laches itself. 12. Reply affidavits had been placed on record by the petitioner. It is pertinent to note that Exts.P23 and P24 representations which according to the petitioner were submitted in 1998 itself are sought to be produced along with the reply affidavit filed on 25.08.2022. 13. I have considered the contentions advanced on both sides. The specific case of the petitioner in the writ petition is that she was completely unaware of the fact that she had been included in the ranked list prepared in the year 1998 until she overheard certain conversations among the committee members considering W.P.(C)No.24542 OF 2021 14 assessment promotions with regard to her inclusion in the ranked list in 1998. Thereafter, the request had been submitted for getting copies of the ranked list and Ext.P9 ranked list was obtained under the provisions of the Right to Information Act, 2005. It is on the basis of Ext.P9, that the petitioner seeks the reliefs in the writ petition. 14. However, along with the reply affidavit, the petitioner has produced Exts.P23 and P24 representations which are seen dated 29.05.1998 and 23.11.1998 respectively. The said representations do not contain any evidence that they were received by the respondents or even if that they were actually sent. If the petitioner had a contention that such representations had, as a matter of fact, been submitted before the respondents in May 1998 and November 1998 itself, I fail to see the reason why such representations W.P.(C)No.24542 OF 2021 15 did not form part of the materials produced along with the writ petition and were produced only along with the reply affidavit. 15. The respondents 7, 8 and 9 have specifically stated that it was not on their inclusion in Ext.P9 ranked list that they were appointed as Technical Assistants in May 1998 and November 1998 respectively. From perusal of the documents produced, this appears to be so. In any view of the matter, I notice that the selections pursuant to Ext.P2 were conducted in April and May, 1998. The appointments now complained of are ones made in May and November 1998. Even if Exts.P23 and P24 representations had been submitted by the petitioner at the relevant time, there is absolutely no reason why no further steps had been taken by the petitioner on the said representations for 20 long years. It is only in 2017 that the petitioner W.P.(C)No.24542 OF 2021 16 admittedly raises the issue before the respondents and makes a request under the Right to Information Act, 2005. 16. In the facts and circumstances of the instant case, I am of the opinion that requiring the respondents to defend an appointment made in the year 1998 through a writ petition filed in the year 2021 would itself be unjustified and since 20 long years have been elapsed without a whisper of a challenge being made by the petitioner against the said appointments. In the result, I am of the opinion that the prayers sought for in the writ petition are not liable to be allowed. The writ petition fails and the same is according dismissed. **Sd/ANU SIVARAMAN JUDGE** SSK/13/01 W.P.(C)No.24542 OF 2021 17 ## **APPENDIX** ## PETITIONER EXHIBITS |Exhibit P1|COPY OF THE ORDER NO. BG2/1360/93 DATED| |---|---| ||06.12.1993.| |Exhibit P2|COPY OF THE NOTIFICATION NO. 1/97, PUBLISHED IN| ||KERALA KAUMUDI.| |Exhibit P2 (A)|COPY OF THE ZOOMED RELEVANT PORTION OF EXT. P2| ||NOTIFICATION NO. 1/97.| |Exhibit P3|COPY OF THE OFFICE ORDER NO. TBGRI/DR/90/2001,| ||DATED 17.03.2021 REGULARIZING THE PETITIONER AS| ||TECHNICAL ASSISTANT,| |Exhibit P4|COPY OF THE SECTIONAL ORDER NO. 492 (14) DATED| ||19.03.2001 ISSUED TO THE PETITIONER ON HER| ||REGULARISATION.| |Exhibit P5|COPY OF THE OFFICE ORDER NO. 492, DATED| ||22.03.2001 RE DESIGNATING ALL TECHNICAL| ||ASSISTANTS AS TECHNICAL OFFICERS.| |Exhibit P6|COPY OF THE PETITIONERS, REPRESENTATION DATED| ||13.12.2017 TO THE 2ND RESPONDENT SEEKING HER| ||APPOINTMENT AS PER RANK LIST.| |Exhibit P7|COPY OF THE PETITIONERS REPRESENTATION DATED| ||02.02.2018 TO THE 2ND RESPONDENT SEEKING HER| ||APPOINTMENT AS PER THE RANK LIST AND ITS| ||CONSEQUENTIAL BENEFITS THERE UPON.| |Exhibit P8|COPY OF THE INFORMATION COMMISSION, ORDER DATED| ||30.01.2020.| |Exhibit P9|COPY OF THE RANK LIST ALONG WITH COVERING LETTER| ||NO. TBGRI/1032/2020-ESTT. 3, DATED 18.06.2020.| |Exhibit P10|COPY OF THE PETITIONERS REPRESENTATION DATED| ||08.03.2021 SUBMITTED TO THE 2ND RESPONDENT.| |Exhibit P11|COPY OF THE PETITIONERS APPLICATION DATED| ||02.07.2021 SUBMITTED UNDER RIGHT TO INFORMATION| ||ACT.| |Exhibit P12|COP[Y OF THE INTERNAL POSTING ORDER BEARING NO.| ||BG3/TA/98-99 DATED 24.06.1998 OF THE APPOINTMENT| ||CANDIDATES.| |Exhibit P13|COPY OF THE PETITIONERS APPEAL DATED 13.08.2021| ||SUBMITTED UNDER RIGHT TO INFORMATION ACT.| |Exhibit P14|COPY OF THE 5TH RESPONDENT REPLY LETTER NO| ||TBGRI/1400/2021/ESTT-3 DATED 17.09.2021.| |Exhibit P15|COPY OF THE APPOINTMENT ORDER ISSUED TO 6TH| ||RESPONDENT SURESH KUMAR, VIDE SECTIONAL ORDER| ||NO. BG/TA/98-98, DATED 27.05.1998.| |Exhibit P16|COPY OF THE APPOINTMENT ORDER ISSUED TO ANIL| ||JOHN, VIDE SECTIONAL ORDER NO. BG/TA/98-98 DATED| W.P.(C)No.24542 OF 2021 18 ||27.05.1998.| |---|---| |Exhibit P17|COPY OF THE APPOINTMENT ORDER ISSUED TO| ||GOPANRAJ, VIDE SECTIONAL ORDER NO. BG/TA/98-98| ||DATED 27.05.1998.| |Exhibit P18|COPY OF PETITIONERS APPLICATION DATED 04.10.2021| ||SUBMITTED UNDER RIGHT TO INFORMATION ACT.| |Exhibit P19|COPY OF THE 4TH RESPONDENT REPLY LETTER NO.| ||TBGRI/1651/2021/ESTT. 3 DATED 21.10.2021.| |Exhibit P20|COPY OF THE APPOINTMENT ORDER ISSUED TO| ||USHAKUMARI.J VIDE SECTIONAL ORDER NO. BG/126/98-| ||98 DATED 20.11.1998.| |Exhibit P21|COPY OF TRANSFER ORDER NO. 1744/05/SO/KSCSTE| ||DATED 29.09.2005 TRANSFERRING USHAKUMARI J,| ||TECHNICAL OFFICER FROM 2ND RESPONDENT JNTNBGRI| ||TO IST RESPONDENT KSCSTE.| |Exhibit P22|COPY OF PETITIONERS REMINDER APPLICATION DATED| ||08.10.2021 SUBMITTED FOR THE DISPOSAL OF HER| ||REPRESENTATION DATED 08.03.2021.| |Exhibit P23|TRUE COPY OF THE REPRESENTATION FILED BY THE| ||PETITIONER BEFORE THE 4TH RESPONDENT DATED| ||29.5.2018| |Exhibit P24|TRUE COPY OF THE REPRESENTATION FILED BY THE| ||PETITIONER BFORE THE 4TH RESPONDENT DATED| ||23.11.1998| |RESPONDENT EXHIBITS|| |Exhibit R8a|TRUE COPY OF THE LETTER NO NIL DATED 24.4.1998| |Exhibit R8a|TRUE COPY OF THE LETTER NO NIL DATED 24.4.1998| ||OF THE REGISTRAR OF THE 2ND RESPONDENT`| |Exhibit R8b|TRUE COPY OF THE POSTAL COVER ADDRESSED TO THE| ||8TH RESPONDENT FROM TBGRI| |Exhibit R8c|TRUE COPY OF THE POSTAL COVER ADDRESSED TO THE| ||8TH RESPONDENT FROM TBGRI| |PETITIONER EXHIBITS|| |Exhibit P25|COPY OF THE APPLICATION DATED 14.03.2018| ||SUBMITTED TO THE 2ND RESPONDENT'S PUBLIC| ||INFORMATION OFFICER.| |Exhibit P26|COPY OF THE APPEAL DATED 11.04.2018 SUBMITTED TO| ||THE APPELLATE AUTHORITY.| |SSK|//TRUE COPY// PA TO JUDGE|