OP(KAT) 393/22

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE S.V.BHATTI** ## **&** **THE HONOURABLE MR.JUSTICE BASANT BALAJI** **MONDAY, THE 10[TH] DAY OF APRIL 2023 / 20TH CHAITHRA, 1945** ## **OP(KAT) NO. 393 OF 2022** ## **OA (EKM) 1720/2020 OF KERALA ADMINISTRATIVE TRIBUNAL,** ## **THIRUVANANTHAPURAM** ## **PETITIONER/S:** 1 STATE OF KERALA,REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT, TAXES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM695001 2 JOINT COMMISSIONER, OFFICE OF THE JOINT COMMISSIONER, STATE GOODS AND SERVICE TAX DEPARTMENT, KOZHIKODE - 673 006, KERALA., PIN - 673006 3 ASSISTANT COMMISSIONER, OFFICE OF THE ASSISTANT COMMISSIONER, STATE GOODS AND SERVICE TAX DEPARTMENT, MINI CIVIL STATION, KOYILANDI, KOZHIKODE DISTRICT, PIN- 673 305, KERALA., PIN - 673305 SR GP ANTONY MUKKATH ## **RESPONDENT/S:** 1 SMT.NISHA P.,, AGED 41 YEARS, D/O ACHUTHAN M.V., RESIDING AT PAROL HOUSE, AMAYAPRA P.O., PUTHUPPANAM P.O., VATAKARA (VIA), KOZHIKODE, PIN673 105, WORKING AS OFFICE ATTENDANT, OFFICE OF THE ASSISTANT COMMISSIONER, STATE GOODS AND SERVICE TAX DEPARTMENT, MINI CIVIL STATION, KOYILANDI, KOZHIKODE DISTRICT, KERALA - 673 305., PIN - 673105 ## **OP(KAT) 393/22** -2- 2 SECRETARY TO GOVERNMENT,DEPARTMENT OF PERSONAL & ADMINISTRATIVE REFORMS, GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM- 695 001, KERALA., PIN - 695001 BY ADV MARY BENJEMIN THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 16.3.2023, THE COURT ON 10.4.2023 DELIVERED THE FOLLOWING: **OP(KAT) 393/22** -3- ## JUDGMENT (Dated this the 10[th] day of April 2023) ## Basant Balaji J., The petitioners before this court are respondents Nos.1 to 4, and the respondents are the applicants before the Tribunal. The parties are referred to as they appearing before the Tribunal. 2. The applicants filed the O.A.No.1720 of 2020 before the Tribunal to pass orders directing the respondents to issue orders promoting the applicant as L.D typist forth with. A further direction was also sought to direct the **OP(KAT) 393/22** -4- respondents to give retrospective promotion to the applicant as LD typist with effect from 10.12.2018. 3. The Tribunal, by the impugned order, allowed the O.A and directed the 3rd respondent to issue appointment orders to the next eligible person by transfer appointment against the 10% quota within a period of 3 weeks. 4. The case of the applicant, in brief, is as follows: - The applicant is working in the office of the 4th respondent as an office attendant. she claims promotion to the post of LD typist under 10% quota prescribed as per annexures Nos.A1 and A2. According to the applicant, there are 40 posts of LD typist in Kozhikode, and therefore, applying the 10% quota for office attendants, she should be promoted to LD typist. Though the applicant submitted **OP(KAT) 393/22** -5- representations, it was not considered in view of a mistaken notion. The applicant is the senior most office attendant, and therefore, she is entitled to be appointed as an LD typist based on the 10% quota. 5. A vacancy arose on 31/12/2020 due to the retirement of one Sudha, L.D typist; therefore, she has to be accommodated in the vacancy. But steps are being taken to report the vacancy to the PSC. It is at this juncture; she approached the Tribunal with the reliefs. The Tribunal, after considering the facts and circumstances of the case and Annexures produced, directed the issue of appointment orders to the next eligible person. 6. Before the Tribunal, the 3rd respondent has filed a reply statement to the averments in the O.A. It was **OP(KAT) 393/22** contended that the total strength of typists in Kozhikode district is 40. These posts are divided into L.D typist, U.D typist, Senior grade typist, and Selection grade typist in the ratio of 1:1:1:1. Therefore, the cadre strength of L.D typists in the district is one post and as per the quota prescribed for low paid employees only one post of LD typist is available (10% of the cadre strength). Serial No 1 in the seniority list has already been promoted on the first vacancy. The applicant can be promoted only when a vacancy arises after Smt Sindhu C. K is either promoted or retired from service. If the applicant’s request is accepted, the quota prescribed for the low-paid employees will exceed the cadre strength of the L.D typist. **OP(KAT) 393/22** 7. We have heard Shri Antony Mukkath, Senior government pleader and Adv.Mary Benjamin for the respondents. 8. The short question to be considered is whether the Tribunal was justified in directing the 3rd respondent to issue appointment orders to the next eligible candidate against the 10% quota, noting that 19 vacancies arose as of 31/3/2021. The contention raised by the counsel for the respondents is that the respondents could not show before the Tribunal with any documentary evidence that the ratio fixed is 1:1:1:1 for all the four categories of Typists. In the absence of any documentary evidence to prove that such a ratio is maintained, the Tribunal was justified in allowing **OP(KAT) 393/22** -8- the original application taking note of the total number of vacancies as 19. 9. The Senior Government Pleader, on the other hand, argued that since the total number of vacancies of LD typists in Kozhikode district is 40 and there are four categories of types necessarily, the ratio has to be fixed as 1:1:1:1. He has taken us to Note (3) to Rule 5 on paragraph No.2 of Kerala State and Subordinate Service Rules 1958, which reads as follows:- “Whenever a ratio or percentage is fixed for different methods of recruitment/appointment to a post, the number of vacancies to be filled up by candidates from each method shall be decided by applying the fixed ratio or percentage to the cadre strength of the post to which the recruitment/transfer is made and not to the vacancies existing at that time.” **OP(KAT) 393/22** -9- 10. He also relied on the judgments of the Apex Court reported in **V K Girija v. Reshma Parayil and others [(2019) 2 SCC 347]** and **Prasad Kurien and others v. K J Augustin and others [(2008) 3 SCC 529]** to contend that when a ratio is fixed for different methods of recruitment shall be based on cadre strength and not on the strength of vacancy available. He, therefore, argued that when the ratio is 1:1:1:1, there are only 10 posts assigned to L.D. typists, and 10% would come to only 1. Since the first person in the seniority list is already appointed, the applicant can aspire to promotion only in the next arising vacancy. Therefore the Tribunal was not justified in allowing the original application. **OP(KAT) 393/22** -10- 11. We have perused the order of the Tribunal, the Annexures, and the Exhibits produced. 12. It is the case of both parties that the total vacancy of LD typists in Kozhikode district is 40, and the quota fixed for by transfer appointments from low paid employees is 10%. The post of LD typist is divided into 4. These posts are L.D typist, U.D Typist, Senior Grade Typist, and Selection Grade Typist in the ratio of 1:1:1:1. It is to be noted that when the total number of vacancies of L.D typists in Kozhikode district is 40. It consists of 4 different categories necessarily, the ratio can only be 1:1:1:1. In such case, the applicant being an office assistant included in the low paid employees category, can only aspire for 10% of the cadre strength of 10 vacancies **OP(KAT) 393/22** earmarked for L.D typists. So only one vacancy can be allowed for by transfer appointment out of the 10 vacancies of L.D typists. The first person in the seniority list is already appointed as L.D typist. So the applicant can only aspire when the second vacancy arises either on the retirement of the first person promoted or by further transfer. The Tribunal was not justified in taking the total number of vacancies available at the relevant time and ignoring Note (3) to Rule 5 d as well the decisions of the apex court mentioned above and directing promotion by transfer on 31/3/2021. Therefore, we are of the considered opinion that the order of the Tribunal has to be interfered with and, we do so. **OP(KAT) 393/22** -12- In the result the Original Petition is allowed, and the order of the Tribunal dated 01/07/2020 in O.A. (Ekm.) No. 1720 of 2020 is set aside. Sd/- **S.V.BHATTI, JUDGE** **sd/-** **BASANT BALAJI, JUDGE** _dl/documents/dik/svbj/OPKAT 393 2022_