NATPAC Staff Welfare Association and T. Vijayan v. State of Kerala, KSCSTE, NATPAC and D. Shaju

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN** **MONDAY ,THE 08TH DAY OF OCTOBER 2018 / 16TH ASWINA, 1940** ## **WP(C).No. 8078 of 2011** ## **PETITIONER/S:** - **1 NATPAC STAFF WELFARE ASSOCIATION, REPRESENTED BY ITS GENERAL SECRETARY SRI.K.M.SYED MOHAMMED,AGED 51 YEARS, S/O.K.S.MUSTHAFA,NOW WORKING AS PRINCIPAL TECHNICAL OFFICER, NATIONAL TRANSPORTATION PLANNING AND RESEARCH CENTRE(NATPAC),PATTOM PALACE P.O., THIRUVANANTHAPURAM-695 004.** - **2 T.VIJAYAN, S/O LATE THANKAPPAN, PERSONAL ASSISTANT TO REGISTRAR, NATIONAL TRANSPORTATION PLANNING AND RESEARCH CENTRE (NATPAC), PATTOM PALACE P.O., THIRUVANANTHAPURAM .** **BY ADV. SRI.K.B.PRADEEP** ## **RESPONDENT/S:** - **1 THE STATE OF KERALA, REPRESENTED BY PRINCIPAL SECRETARY, SCIENCE AND TECHNOLOGY DEPARTMENT,, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM- 695 001.** - **2 THE KERALA STATE COUNCIL FOR SCIENCE, TECHNOLOGY AND ENVIRONMENT(KSCSTE), SASTHRA BHAVAN,PATTOM PALACE P.O., THIRUVANANTHAPURAM 695 004, REPRESENTED BY ITS EXECUTIVE VICE PRESIDENT.** - **3 NATIOINAL TRANSPORTATION PLANNING AND RESEARCH CENTRE(NATPAC), PATTOM PALACE PO,, THIRUVANANTHAPURAM 695 004, REPRESENTED BY ITS DIRECTOR.** W.P.(C) 8078 & 16498/2011. 2 **4** **D.SHAJU, NOW WORKING AS SECTION OFFICER, NATIONAL TRANSPORTATION PLANNING AND RESEARCH CENTRE(NATPAC), PATTOM PALACE PO, THIRUVANANTHAPURAM 695 004.** **BY ADVS. SRI.B.S.SYAMANTHAK SC NATPAC SRI.GEORGE ZACHARIAH SC KSCSTE SRI.P.A.AHAMED SC K.S.C.T.E SRI.R.KRISHNA RAJ** ## **OTHER PRESENT:** **GOVT.PLEADER.SMT.POOJA SURENDRAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08.10.2018, ALONG WITH WP(C).16498/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) 8078 & 16498/2011. 3 ## **JUDGMENT** W.P.(C) No.16498 of 2011 is filed by the petitioner challenging Ext.P8 order by which, the promotion granted to him as Section Officer has been cancelled. Consequently, he has been reverted to the post of Office Assistant Grade II in NATPAC. W.P.(C) No. 8078 of 2011 is filed by the NATPAC Staff Welfare Association and another employee questioning the continuance of the petitioner in the former writ petition, who is the fourth respondent herein as Section Officer though he is not qualified to be appointed to the said post. W.P.(C) No. 8078 of 2011 was filed earlier. It was after the filing of the said writ petition that the petitioner was reverted. Since the subject matter of both the writ petitions is the same, they are considered and disposed of by this common judgment. W.P.(C) No. 16498 of 2011 is treated as the leading case. The parties as well as the documents W.P.(C) 8078 & 16498/2011. 4 produced shall be referred to in the manner in which they are referred to in the said writ petition. 2. The petitioner was initially appointed on contract basis as a Clerk under the first respondent - NATPAC with effect from 7.4.1990. Later on, his service was regularized and he was appointed as Junior Assistant/Clerk with effect from 1.4.1996 as per Ext.P1 order dated 4.3.1996. He was ordered to be on probation for a period of one year. He completed the same successfully and was confirmed in service thereafter. According to the petitioner, he was discharging the duties of an Office Assistant and Cashier for more than eight years. 3. Initially, the first respondent NATPAC was an autonomous body in the Government of Kerala. Subsequently the same was brought under the second respondent, State Council, which is a body sponsored by the Government of Kerala and registered under the Tranvancore-Cochin Literary Scientific W.P.(C) 8078 & 16498/2011. 5 and Charitable Societies Act. The Chief Minister is the President of the second respondent. It appears that, there was an integration of the posts under the NATPAC and the second respondent. After such integration, the Selection Committee/Assessment Promotion Committee assessed the petitioner as well as others who were on the staff for the purpose of finding out whether they were fit for promotion to the next higher grade. Thereafter, the petitioner was provisionally promoted to the next higher grade under the scale of pay as per Ext.P2. As per Ext.P3, the post occupied by the petitioner was integrated in accordance with the nomenclature of the posts under the second respondent. Accordingly, the petitioner was designated as Office Assistant-Grade 1. Thereafter, as per proceedings dated 29.11.2010 evidenced herein by Ext.P4, the petitioner was promoted to the post of Office Assistant Grade 2 with effect from 1.4.2008 in a higher scale of pay. While so, the W.P.(C) 8078 & 16498/2011. 6 petitioner submitted representations requesting that he be promoted to the post of Section Officer. However, his representations were not considered favourably for the reason that he did not have the essential qualification of a Degree. Later on, he appears to have submitted a representation seeking promotion to the said post, exempting him from the qualification of a Degree. It is worth noticing here that, the qualification stipulated for appointment to the post of Section Officer is possession of a Degree with experience as Office Assistant for five years. The method of appointment stipulated by the Rules relating to Recruitment and Promotion of Administrative Staff applicable to the second respondent is by promotion from the post of Office Assistant. 4. The representation was recommended by Ext.P5 proceedings of the first respondent. Pursuant to the recommendation, as per order dated 28.2.2011 the petitioner W.P.(C) 8078 & 16498/2011. 7 was temporarily promoted to the post of Section Officer. Ext.P7 was issued on the basis of a recommendation of the same date of the Controller of Administration of the first respondent, evidenced herein by Ext.P7(a), requesting the Director of the first respondent to relax the qualification requirements treating the petitioner as a special case. It was challenging Ext.P7 the said promotion granted to the petitioner that, W.P.(C) No.8078 of 2011 was filed by the petitioners herein. The said writ petition was admitted on 15.3.2011 and notice was ordered to the respondents. It was thereafter that Ext.P8 order was issued cancelling the promotion granted to the petitioner as Section Officer and reverting him to the post of Assistant Grade II. The said order is remaining stayed as per an interim order granted in this case. 5. According to the learned counsel for the petitioner, the first respondent had sufficient power to relax the W.P.(C) 8078 & 16498/2011. 8 qualification that was stipulated for being promoted to the post of Section Officer. My attention is drawn to Ext.P5 to point out that the question was considered by the second respondent properly and elaborately with due application of mind and a decision has been taken to relax the qualification, which cannot be found fault with. Since the authority had the power to relax the qualification, a relaxation thereof with proper application of mind is perfectly in order, it is contended. All the relevant factors have engaged the attention of the Committee members who have affixed their signatures to Ext.P5. They are all eminent persons and therefore, the contentions levelled against the said recommendation are all unsustainable. The decision having been taken in the due process of administration, taking into account the requirements of the service, it is contended that the relaxation was justified. Two posts of Section Officer are remaining vacant. The petitioner was the only one regular W.P.(C) 8078 & 16498/2011. 9 employee in the service of the first respondent. Since no other person was available, the decision to promote the petitioner for the smooth functioning of the second respondent was necessary in the interests of the establishment. Therefore, cancellation of Ext. P7, the order passed on the basis of the recommendation Ext.P5, is arbitrary and unsustainable. The said decision, taken without there being any change in the circumstances, can only be described as unreasonable. It is further contended that, the change in the attitude came immediately after a change in the President of the first respondent. The new President, according to the learned counsel, has issued Ext.P8 in implementation of a political agenda. It is further pointed out by the learned counsel that, there are many instances of similar relaxations in qualifications being granted to several employees. Since the relaxation has been granted to other employees, there is no justification for denying the same treatment to the petitioner W.P.(C) 8078 & 16498/2011. 10 herein. The counsel places reliance on some decisions of the Apex Court also in support of his contention that cancellation of Ext.P7 by the issue of Ext.P8 is liable to be interfered with. 6. Separate counter affidavits have been filed by the respective respondents. According to the first respondent, the petitioner's qualification is only SSLC whereas the required qualification for promotion as Section Officer is a Degree. The petitioner is not possessed of the qualification that is required for promotion. With respect to the relaxation granted to the technical wing of the first respondent, it is pointed out that, the Rules applicable to technical staff permitted such relaxation to be granted. Therefore, the fact that relaxation was granted to the technical staff cannot be put forward as a ground to contend that the petitioner has been discriminated. The petitioner had been promoted as Section Officer by Ext.P7 as a result of a mistake. When the mistake was detected, the same was W.P.(C) 8078 & 16498/2011. 11 corrected. Contentions on the same lines have been taken by the second as well as third respondents in separate counter affidavits filed by them. They also contend that, the petitioner was promoted to the post of Section Officer on the basis of a wrong assessment and recommendation by the Assessment Committee. Therefore, immediately on detection of the mistake the said order was cancelled. It is further pointed out that after integrating the service under the first and second respondents, the petitioner had been granted promotion to the post of Office Assistant Grade 1 initially and thereafter to the post of Office Assistant Grade 2, in relaxation of the prescribed qualification. Therefore, in his case also, relaxation was granted. His further contention that he should be promoted to the post of Section Officer granting him a further relaxation of the qualification cannot be countenanced. W.P.(C) 8078 & 16498/2011. 12 7. According to the petitioners in W.P.(C) No. 8078 of 2011, the promotion granted to the petitioner as per Ext.P7 was irregular. He is a person who does not possess the qualification for being promoted as Section Officer. It is alleged that he is politically well connected and that using his political influence he has ensured that no recruitment to the post of Office Assistant was made during the past number of years with the object of securing advantages to his career. According to them, the petitioner's promotion was vitiated by extraneous considerations and has been rightly cancelled. Since the petitioner has been continuing as Section Officer on the strength of the interim order granted by this Court, in spite of Ext.P8, it is contended that this writ petition should be dismissed with costs. The counsel also places reliance on various decisions of the Apex Court to contend that unqualified persons ought not be permitted to occupy responsible posts. W.P.(C) 8078 & 16498/2011. 13 8. Heard. The short question that arises for consideration in this case is whether the cancellation of Ext.P7 promotion by Ext.P8 is sustainable or not. A perusal of Ext.P7 shows that, the petitioner, Sri. D. Shaju, was “temporarily promoted to the post of Section Officer with immediate effect, in relaxation of qualification requirement, as a special case.” It is clear from the wordings extracted above that the promotion of the petitioner was only temporary. Therefore, it was perfectly within the authority of the first respondent to cancel the temporary promotion at any time. It is further clear from the wordings that, the petitioner was not qualified to be promoted to the said post. It is for the said reason that, a relaxation of the qualification requirement was granted. The present contention of the petitioner is that, despite his promotion being temporary in nature, and despite the fact that he was not qualified to be promoted, the cancellation thereof was arbitrary. The said W.P.(C) 8078 & 16498/2011. 14 contention has no substance and is only to be rejected. I do so. 9. It is clear from Ext.P5 that, the method of appointment and qualification for promotion to the post of Section Officer are the following: ## “(a) Method of Appointment: By promotion from Office Assistant. ## (b) Qualification and experience prescribed for promotion: 1. Degree of a recognized University. 2. Experience as Office Assistant for five years.” According to the petitioner, he was the only regular Office Assistant available in the service of the first respondent, the others being persons who are working on deputation. It is further contended that, he has the required experience as Office Assistant. His only disqualification is that he did not have a Degree. It is pointed out by the counsel appearing for the petitioners in W.P.(C) No. 8078 of 2011 that, other persons who are fully qualified are available in the service of the first W.P.(C) 8078 & 16498/2011. 15 respondent. The second petitioner in the said writ petition is pointed out to be such a person. It is also contended that, a Section Officer who satisfies all the requirements could be appointed on deputation. Therefore, there is no imminent necessity to grant promotion to the petitioner, relaxing the qualification. Be that as it may, the fact remains that the authorities had realized that the grant of promotion to the petitioner was wrong and has rectified the mistake by cancelling Ext.P7 order. Inasmuch as Ext.P8 had been issued for the purpose of correcting a mistake committed by the authorities, the same cannot be found fault with. The temporary promotion that was granted to the petitioner relaxing the qualification stipulated for such promotion cannot clothe the petitioner with any right to continue in the post. Since there was no regular promotion, the authorities were perfectly within their rights in cancelling Ext.P7 by the issue of Ext.P8. The petitioner being a W.P.(C) 8078 & 16498/2011. 16 person who was not qualified for such promotion, was wrongly granted relaxation, according to the respondents. In the face of the said explanation, I am not satisfied that any interference with Ext.P8 is called for. 10. Pursuant to the order of this Court dated 1.2.2012, the files were produced by the respondents. A perusal of the files show that, Ext.P8 has been issued with due application of mind. What appears from the files is that the question of grant of promotion to the petitioner as Section Officer was rejected on previous occasions after due consideration on the basis of the representations submitted by him. However, a change of attitude seems to have taken place subsequently, that culminated in the issue of Ext.P7 order of promotion. The said order was reconsidered, was found to be irregular and was cancelled by Ext.P8. The files do not disclose anything to show that Ext.P8 was vitiated by extraneous W.P.(C) 8078 & 16498/2011. 17 ## considerations, as contended. 11. Though a number of decisions have been relied upon by both sides, I do not consider it necessary to refer to the said decisions at length for the reason that the claim of the petitioner has been found to be unsustainable on facts. The decisions are to the effect that an unqualified person ought not be promoted to any post, even if he has officiated or worked in the said post on the strength of interim orders issued by the courts. In view of the above legal position authoritatively laid down by the Apex Court in M.S. Patil (Dr.) v. Gulbarga University ((2010) 10 SCC 63), Rameshwar Dayal v. Indian Railway Construction Co. Ltd ((2010) 11 SCC 733), State of Karnataka v. Gadilingappa ((2010) 2 SCC 728) and Union of India v. Kartick Chandra Mondal ((2010) 2 SCC 422) the claim of the petitioner is unsustainable. The proposition that a temporary appointment to a post cannot confer any right on an employee and that, he W.P.(C) 8078 & 16498/2011. 18 can always be reverted has also been authoritatively laid down by the Apex Court in Union of India v. K.R. Tahiliani ((1980) 3 SCC 309) and Triveni Shankar Saxena v. State of U.P. ((1992) Suppl. SCC 524). For the foregoing reasons, W.P.(C) No. 16498 of 2011 is dismissed. Since the relief sought for by the petitioners in W.P.(C) No. 8078 of 2011 has already been granted by Ext.P8, the impugned order in W.P.(C) No. 16498 of 2011, no further orders are necessary to be granted in this case. The same is also disposed of in terms of the observations made above. - K. SURENDRA MOHAN JUDGE sb W.P.(C) 8078 & 16498/2011. 19 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE REPRESENTATION DATED 30.11.2010 OF THE 4TH RESPONDENT TO THE 3RD RESPONDENT EXHIBIT P2 TRUE COPY OF THE LETTER DATED 17.12.2010 FROM 3RD RESPONDENT TO THE 2ND RESPONDENT** **EXHIBIT P3 TRUE COPY OF THE LETTER DATED 11.1.2011 FROM THE 2ND RESPONDENT REGARDING EXT.P-2** **EXHIBIT P4 TRUE COPY OF THE LETTER DATED 22.1.2011 FROM 2ND RESPONDENT TO THE 3RD RESPONDENT EXHIBIT P5 TRUE COPY OF THE LETTER DATED 8.2.2011 FROM 3RD RESPONDENT IN REPLY TO EXT.P-4 EXHIBIT P6 TRUE COPY OF THE NOTE DATED 22.2.2011 SUBMITTED BY THE 2ND RESPONDENT TO THE CHIEF MINISTER EXHIBIT P7 TRUE COPY OF THE NOTE DATED 26.2.2011 ISSUED BY THE CHIEF MINISTER EXHIBIT P8 TRUE COPY OF THE GOVT.ORDER DATED 4.2.2003 EXHIBIT P9 TRUE COPY OF THE ORDER DATED 28.2.2011 ISSUED BY THE 2ND RESPONDENT EXHIBIT P10 TRUE COPY OF THE LETTER DATED 15.12.2010 OF THE 2ND RESPONDENT** **RESPONDENT'S/S EXHIBITS:** **EXHIBIT R1** NIL **EXHIBIT R2** NIL **EXHIBIT R3** NIL **EXHIBIT R4** TRUE COPY OF ORDER DATED 30.12.2011 OF R-2 **EXHIBIT R4 A** TRUE COPY OF PROCEEDINGS DATED 17.6.2011 OF R-2 **EXHIBIT R4 B** TRUE COPY OF GOVT. LETTER NO.1379/A4/11/STD DATED 13.7.2011 **EXHIBIT R4 C** TRUE COPY OF GO(MS) NO.6/2011/S&TD DATED 29.11.2011 W.P.(C) 8078 & 16498/2011. 20 **EXHIBIT R4 D** TRUE COPY OF ORDER DATED 29.11.2011 OF R-2 **EXHIBIT R4 E** TRUE COPY OF INTERIM ORDER DATED 12.12.2011 IN WPC.1402/07 **EXHIBIT R4 F** TRUE COPY OF ORDER DATED 29.12.2011 OF R-2 **EXHIBIT R4 G TRUE COPY OF ORDER DT. 30.12.2011 OF R2** **//true copy// Sd/P.S. TO JUDGE**