M.G. Rathnakumari v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** ## **MONDAY, THE 22[ND] DAY OF AUGUST 2022 / 31ST SRAVANA, 1944** ## **WP(C) NO. 16139 OF 2022** ## **PETITIONER:** M.G.RATHNAKUMARI, AGED 54 YEARS JUNIOR CO-OPERATIVE INSPECTOR, KERALA KHADI AND VILLAGE INDUSTRIES BOARD, DISTRICT KHADI AND VILLAGE INDUSTRIES OFFICE, KOZHIKODE, PIN 673 032, RESIDING AT VIPANCHIKA, VELOOR P.O, ATHOLI, KOZHIKODE DISTRICT, PIN 673 315. BY ADV K.P.RAJEEVAN ## **RESPONDENTS:** 1 STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, INDUSTRIES DEPARTMENT, SECRETARIAT, THIRUVANNATHAPURAM, PIN 695 001. 2 KERALA KHADI AND VILLAGE INDUSTRIES BOARD, REPRESENTED BY ITS SECRETARY, VANCHIYOOR, THIRUVANANTHAPURAM, PIN 695 035. 3 THE SECRETARY, KERALA KHADI AND VILLAGE INDUSTRIES BOARD, VANCHIYOOR, THIRUVANANTHAPURAM, PIN 695 035. 4 PROJECT OFFICER, DISTRICT KHADI AND VILLAGE INDUSTRIES BOARD, KOZHIKODE, PIN 673 032. BY ADV N.RAJAGOPALAN NAIR, SC, KERALA KHADI AND VILLAGE INDUSTRIES BOARD THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 16139 OF 2022 2 ## **JUDGMENT** ## - This writ petition is filed seeking the following reliefs: i) Call for the records leading to this case and issue a writ of certiorari and quash Exhibit P12. ii) Issue a writ of mandamus or any appropriate writ or order directing the respondents to appoint the petitioner as Lower Division Typist with retrospective effect from 06.03.2014 and grant consequential benefits to the petitioner with interest immediately. 2. Heard the learned counsel appearing for the petitioner and the learned Counsel appearing for the respondents. 3. The claim of the petitioner is that the petitioner had been wrongly denied appointment by transfer as Lower Division Typist in the respondent-Board in spite of her eligibility and existence of vacancies with effect from 06.03.2014. The petitioner had to approach this Court repeatedly and this Court had directed the consideration of the application made by the petitioner for appointment. However, it is submitted that due to the pendency of the writ petition, writ appeals and review WP(C) NO. 16139 OF 2022 3 petitions before this Court as also due to the illegal acts of the respondents in not complying with directions in due time, the appointment by transfer was delayed and the petitioner had been granted appointment only by Ext.P9 order dated 30.01.2020. It is submitted that pointing out the facts and circumstances of the case, the petitioner had approached the respondents seeking retrospective effect to the appointment as LD Typist from 06.03.2014 which was rejected by Ext.P12 order. The learned counsel for the petitioner submits that a Division Bench of this Court in _**Gracy vs. state of Kerala [1985 KHC 62]**_ had considered the precedent law on the issue of grant of retrospective promotion where there is illegal denial of promotions and had held that, where due promotions were illegally denied to the incumbent, the employee would be entitled to full salary and allowances from the date of retrospective promotion. 4. The learned counsel appearing for the respondents have placed a counter affidavit on record, disputing the petitioner's entitlement for by transfer appointment. The learned WP(C) NO. 16139 OF 2022 4 counsel also places reliance of the decisions of the Apex Court in _**Union of India and Others v. K.K. Vadera and Others (1989 Supp (2) SCC 625), Baij Nath Sharma v. Hon’ble Rajasthan High Court at Jodhpur and another (1998 (7) SCC 44), Nirmal Chandra Sinha v. Union of India and Others (2008 (14) SCC 29) and Union of India and Others v. N.C. Murali and Others (2017 (13) SCC 575)**_ . 5. I have considered the contentions advanced. This Court had considered the eligibility of the petitioner for by transfer appointment as early as by Ext.P2 judgment dated 31.05.2016 which was affirmed by the Division Bench and later in review, I am of the opinion that the contentions raised by the 2[nd] respondent in Ext.P12 as well as in the counter affidavit that the petitioner was not eligible for appointment by transfer as LD Typist is completely misconceived and is an affront to the directions issued by this Court. I am of the opinion that the statement in Ext.P12 order of rejection to the effect that the petitioner, who did not have any claim for appointment by transfer “had some how managed to get an order from the High WP(C) NO. 16139 OF 2022 5 Court” would amount to contempt of the orders in authority of this Court. For that simple reason alone, the impugned order cannot survive judicial scrutiny. The same is accordingly set aside. However, in view of the fact that the petitioner, admittedly, did not work as LD Typist from 06.03.2014, I am of the opinion that, the issue requires a proper consideration by the 2[nd] respondent. There will be a direction to the respondents to take up the request made by the petitioner for a retrospective appointment in LD Typist w.e.f 06.03.2014, taking note of the relevant provisions of law which had been made applicable to the 2[nd] respondent. The claim of the petitioner that she is entitled at least to notional promotion with effect from the date of occurrence of vacancy shall also be considered and appropriate orders shall be passed by the respondents. The respondents shall also take care to see that appropriate orders are passed taking note of Exts.P1, P4, P5 and P8 judgments in their proper perspective and that unnecessary and contemptuous statements are avoided in future. Orders shall be passed, as directed above, WP(C) NO. 16139 OF 2022 6 after hearing the petitioner also within a period of two months from the date of receipt of a copy of the judgment. This writ petition is ordered accordingly. Sd/- **ANU SIVARAMAN JUDGE** ska WP(C) NO. 16139 OF 2022 7 ## **APPENDIX OF WP(C) 16139/2022** PETITIONER EXHIBITS |Exhibit P1|A TRUE COPY OF CIRCULAR NO. K.B.| |---|---| ||6711/2009/E1(A) DATED 24.03.2014 ISSUED BY THE| ||RESPONDENT.| |Exhibit P2|A TRUE COPY OF COMMON JUDGMENT IN W.P.C NO.| ||32318/14 AND WP(C) NO. 5074/15 DATED| ||31.5.2016.| |Exhibit P3|A TRUE COPY OF JUDGMENT IN WRIT APPEAL NO.| ||2465/16 DATED 27.2.2017.| |Exhibit P4|A TRUE COPY OF JUDGMENT IN WRIT APPEAL NO.| ||1424/17 DATED 23.08.2017.| |Exhibit P5|A TRUE COPY OF JUDGMENT DATED 23.8.2017 IN RP| ||NO. 611 OF 2017.| - Exhibit P6 A TRUE COPY OF JUDGMENT DATED 12.4.2017 IN W.P.C NO. 12681 OF 2017. - Exhibit P7 A TRUE COPY OF THE ORDER NO. K.B. 6711/2014/E4 DATED 1.11.2017. - Exhibit P8 A TRUE COPY OF JUDGMENT DATED 21.11.2019 IN W.P.C NO. 35855 OF 2017. - Exhibit P9 A TRUE COPY OF ORDER NO. K.B. 6711/2009/E1 (A) DATED 30.01.2020 ISSUED BY THE 3RD RESPONDENT.. - Exhibit P10 A TRUE COPY OF THE REPRESENTATION DATED 2.7.2020 FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. - Exhibit P11 A TRUE COPY OF JUDGMENT DATED 14.10.2020 IN WP(C) NO. 16139 OF 2022 8 W.P.C NO. 21753 OF 2020. Exhibit P12 A TRUE COPY OF THE LETTER NO. K.B. 6711/09/E1 (A) DATED 23.01.2021 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER. RESPONDENT EXHIBITS Exhibit R2A TRUE COPY OF GOVERNMENT ORDER G.O.(RT) NO.151/2005/ID DATED 22/05/2005. Exhibit R2B TRUE COPY OF G.O.(RT) NO.488/2005/ID DATED 17/05/2005. Exhibit R2C TRUE COPY OF THE RELEVANT PAGES OF THE CCR. Exhibit R2D TRUE COPY OF GOVERNMENT LETTER NO.INDK1/67/2017-IND DATED 28/10/2019. Exhibit R2E TRUE COPY OF THE STATEMENT. Exhibit R2F TRUE COPY OF JUDGMENT DATED 25/02/2016 IN WPC.NO.36274/2005.