P. Sreekumar v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN** **FRIDAY, THE 28TH NOVEMBER 2008 / 7TH AGRAHAYANA 1930** **WP(C).No. 5699 of 2006(C)** **-------------------------------------PETITIONER(S):** **------------------------** **P.SREEKUMAR, AGED 38 YEARS, S/O.N.PDMANABHAN PILLAI, WORKING AS ARTIST, ARCHEOLOGICAL DEPARTMENT, DIRECTORATE OF ARCHEOLOGY, HOUSING BOARD JUNCTION, TRIVANDRUM-695 001, RESIDING AT THEKKEPOKKATHU HOUSE, FORT,MAVELIKKARA, MAVELIKKARA P.O., ALAPPUZHA-690 101.** **BY ADV. SRI.K.P.DANDAPANI (SR.)** ## **RESPONDENT(S):** **---------------------------** **1. STATE OF KERALA, REPRESENTED BY SECRETARY, CULTURE(B) DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM-695001.** ## **2. THE DIRECTOR,** **DIRECTORATE OF ARCHEOLOGY, TRIVANDRUM-695 001.** **3. THE KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY THE SECRETARY, PSC BHAWAN, PATTOM P.O., TRIVANDRUM-695 004.** ## ***ADDL.R4 IS IMPLEADED:** **R4. JEEVAMOL.K.S., AGED 34 YEARS, W/O.BIJUKUMAR, PADATH HOUSE, KAKKODY, CALICUT DISTRICT.** **(*ADDL.R4 IS IMPLEADED AS PER ORDER DTD. 20/02/2008 IN I.A.NO.2450/2008)** **GOVERNMENT PLEADER SMT. T.B.REMANI FOR R1 & R2 ADV. SRI.ALEXANDER THOMAS,SC,KPSC FOR R3 DR.GEORGE ABRAHAM FOR ADDL.R4** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/11/2008 ALONG WITH WPC NO. 29571 OF 2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** _Kss_ ## **WPC.NO.5699/2006 C** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** |**EXT.P1:**|**COPY OF THE LETTER DTD. 12/11/2002 ISSUED BY THE**| |---|---| ||**DEPARTMENT OF CULTURE (B), TRIVANDRUM.**| |**EXT.P2:**|**COPY OF THE LETTER DTD. 19/12/2003 ISSUED BY**| ||**THE DEPARTMENT OF CULTURE (B) TRIVANDRUM.**| |**EXT.P3:**|**COPY OF THE PROFORMA INVOICE DTD. 20/09/2001**| ||**SENT TO THE PSC.**| |**EXT.P4:**|**COPY OF THE SRO NO.20 DTD. 03/01/2000 ISSUED BY**| ||**THE DEPARTMENT OF CULTURE (B), TRIVANDRUM.**| |**EXT.P5:**|**COPY OF THE LETTER DTD. 13/06/2005 ISSUED BY**| ||**THE DEPARTMENT OF CULTURE (B) TO THE SECRETARY,PSC.**| |**EXT.P6:**|**COPY OF THE LETTER DTD. 28/10/2005 ISSUED BY THE**| ||**SECRETARY, CULTURE (B) DEPARTMENT.**| |**EXT.P7:**|**COPY OF THE LETTER DTD. 11/02/2006 ISSUED BY THE**| ||**DEPARTMENT OF CULTURE (B), TRIVANDRUM, TO THE**| ||**DIRECTOR, DIRECOTRATE OF ARCHELOGY.**| |**EXT.P8:**|**COPY OF THE RANK LIST OF ARTIST, ARCHEOLOGY**| ||**APPEARED IN PSC BULLET DTD. 15/09/2006.(I.A.NO.1059/2007).**| |**EXT.P8:**|**(I.A.NO.14502/2008) COPY OF ADVICE MEMO NO.RIA (1)/**| ||**37222/06/GW DTD. 7/07/2008 ISSUED BY THE 3RD RESPONDENT**| ||**TO THE 2ND RESPONDENT.**| |**EXT.P9:**|**COPY OF JUDGMENT OF THIS HONOURABLE COURT, DTD.**| ||**15/03/2007 IN WP(C) NO.1484/2007 B.**| |**EXT.P10:**|**COPY OF NO.A3-3450/01/DA DTD. 12/11/2008 ISSUED BY THE**| ||**2ND RESPONDENT TO THE PETITIONER.**| _Kss_ **..2/-** **...2.....** ## **WPC.NO.5699/2006 C** ## **RESPONDENT'S EXHIBITS:** **EXT.R4(A): COPY OF THE RANK LIST FOR THE POST OF ARTIST IN THE ARCHEOLOGY DEPARTMENT PUBLISHED BY THE P.S.C.** **EXT.R4(B): COPY OF ADVICE ISSUED BY THE P.S.C. TO THE ADDITIONAL 4TH RESPONDENT.** **EXT.R4(C): COPY OF ORDER ISSUED BY THE GOVERNMENT DTD. 22/10/2008 DIRECTING TO APPOINT THE ADDITIONAL 4TH RESPONDENT AS ARTIST ON THE ARCHEOLOGY DEPARTMENT.** **/TRUE COPY/** **P.S.TO JUDGE** _Kss_ ## **P.N.Ravindran, J. ===================== W.P(C) Nos.5699/06 & 29571/07 ==========================** ## **Dated this the 28[th] day of November, 2008.** ## **JUDGMENT** The disputes involved in these Writ Petitions relate to appointment to the post of Artist in the Kerala Archaeological Subordinate Service. They were therefore heard together and are being disposed of by this common judgment. ## **W.P.(C) No.5699 of 2006** 2. The petitioner entered service as Draftsman in the Kerala Archaeological Subordinate Service on 25.11.2002 pursuant to Ext.P1 appointment order dated 12.11.2002 issued by the Director of Archaeology. Even before the petitioner entered service based on the request of the Director of Archaeology, the Kerala Public Service Commission, hereinafter referred to as “the Commission”, had issued a notification dated 1.3.1993 inviting applications from eligible persons for appointment to the post of Artist in the Kerala Archaeological Subordinate Service. As per the Special Rules for the Kerala Archaeological Subordinate Service (Ext.P4), the method of appointment prescribed for the post of Artist is by promotion of Draftsman and in the absence of qualified hands available for promotion from the category of Draftsman by direct recruitment. The notification inviting applications for direct recruitment was issued on 1.3.1993, more than three years WP(C) Nos.5699/06 &29571/07 -: 2 :- before the petitioner entered service. The selection process pursuant to the notification issued on 1.3.1993 got belated. In the meanwhile, the petitioner entered service as stated earlier as Draftsman on 25.11.2002 pursuant to Ext.P1 order. The petitioner was also later promoted on a provisional basis by Ext.P2 order dated 9.12.2003 to the category of Artist. On 29.8.2006, the Commission published the ranked list of candidates selected for appointment to the post of Artist from the open market. The petitioner is serial No.2 in the ranked list thus published. After the petitioner was appointed as Artist and before the ranked list was published, the Director of Archaeology sent Ext.P5 letter dated 13.6.2005 to the Secretary of the Commission to drop the proceedings making direct recruitment to the category of Artist. The Director also by Ext.P6 dated 28.10.2005 addressed to the Secretary to Government, Department of Cultural Affairs to cancel the direct recruitment through the Commission or in the alternative to sanction a supernumerary post. By Ext.P7 letter dated 11.2.2006, the Government rejected the request made in Ext.6 and directed the Director of Archaeology to revert the petitioner as Draftsman and to keep the post of Artist reserved for direct recruits. This Writ Petition was thereupon filed challenging Ext.P7 and seeking the following reliefs: “i) Issue a writ of certiorari or any other appropriate order or direction, quashing Ext.P7 as illegal, arbitrary and unsustainable in the eye of law. ii) Issue a writ of mandamus or any other appropriate WP(C) Nos.5699/06 &29571/07 -: 3 :- order or direction, commanding the 3[rd] respondent to drop the recruitment process initiated to fill up the post of Artist/Designer in the office of the 2[nd] respondent. iii) Issue a writ of mandamus or any other appropriate order or direction, commanding the respondents to fill up the post of Artist by promotion from the post of Draftsman Grade II as specified under Ext.P4 Rules. iv) Declare that the petitioner is entitled to be promoted to the post of Artist in the office of the 2[nd] respondent and further declare that the post of Artist/Designer is to be filled by promotion only.” 3. The petitioner contends that as he has entered in service on 25.11.2002 as Draftsman, it cannot be said that there are no qualified hands in the Department and therefore direct recruitment could not have been made to the category of Artist after 25.11.2002. The petitioner also relied on Ext.P5 letter dated 13.6.2005 sent by the Director of Archaeology to the Secretary of the Commission requesting the Commission not to finalise the selection process in the year 2007. Shorn off details, the petitioner's contention is that direct recruitment cannot now be made as he is a qualified person available in the Department since 25.11.2002. ## **W.P.(C) No.29571 of 2007** 4. The petitioner herein is a candidate ranked second in the ranked list published on 29.8.2006. The petitioner in this Writ Petition, who is additional fourth respondent in W.P.(C) No.5699 of 2006, pursuant to the notification issued by the Commission on 16.12.2003 for WP(C) Nos.5699/06 &29571/07 -: 4 :- appointment to the post of Artist in the Kerala Archaeological Subordinate Service, applied, selected and was included as rank No.2 in the rank list published on 29.8.2006. He has filed this Writ Petition challenging the appointment of the petitioner in W.P.(C) No.5699 of 2006, who is fifth respondent herein. The petitioner contends that when the notification inviting applications was issued, the fifth respondent (petitioner in W.P.(C) No.5699 of 2006 had not completed his probation and was therefore not qualified to be promoted as Artist and therefore direct recruitment was properly resorted to. The petitioner also relying on the decision in **K.Harindran** v. **State of Kerala** - 2006(4) I.L.R. 680 contends that once the vacancy was reported to the Commission which in the instant case on 20.9.2001, the petitioner who entered service more than one year thereafter, cannot stand in the way of direct recruitment being made. 5. The Commission has filed a counter affidavit resisting the claim made by he petitioner in W.P.(C) No.5699 of 2006. The Commission contends that a vacancy was reported to which by Ext.P3 letter was produced in W.P.(C) No.5699 of 2006 and that as the selection process was thus initiated before the petitioner in W.P.(C) No.5699 of 2006 entered service, the Commission was justified in proceeding with the selection process. The Commission also contends that in view of G.O. (MS) No.232/71/PD dated 12.8.1971 and circular No.4441/AdvC3/97/P& ARD dated 21.3.1997 vacancies which have been reported to WP(C) Nos.5699/06 &29571/07 -: 5 :- the Commission cannot be filled up by promotion of in-service candidates when direct recruitment is also permissible method of appointment. 6. I have considered the submissions made by Sri. K.P.Dandapani, the learned counsel appearing for the petitioner in W.P(C) No.5699 of 2006, Dr.George Abraham, the learned counsel appearing for the petitioner in W.P.(C) No.29571 of 2007, Smt. T.B.Remani, the learned Government Pleader appearing for the State of Kerala and Sri.Alexander Thomas, the learned standing counsel appearing for the Commission. The pleadings disclose that vacancy of Artist against which the petitioner in W.P.(C) No.29571 of 2007 claims appointment by direct recruitment and against which the petitioner in W.P.(C) No.5699 of 2006 was promoted by Ext.P2 order dated 19.12.2003 was reported to the Commission on 20.9.2001. The vacancy was reported evidently and admittedly for the reason that no in-service candidate was available for promotion. The Commission thereafter took steps to invite applications and published a ranked list. The petitioner in W.P.(C) No.29571 of 2007 applied, selected and included as No.2 in the rank list published on 29.8.2006. In the meanwhile, after the vacancy was reported the Commission took steps to notify the vacancy and complete the selection process and the Director of Archaeology promoted the petitioner in WP. (C) No.5699 of 2006 on a provisional basis as Artist. By Ext.P2 order dated 9.2.2003, the Director thereafter moved the Commission in Ext.P5 WP(C) Nos.5699/06 &29571/07 -: 6 :- letter dated 13.6.2005 to stop the selection process initiated pursuant to Ext.P3. The Director also moved the Government to complete the recruitment process or in the alternative to create a supernumerary post. The Government by Ext.P7 letter 11.2.2006 declined both the requests made by the Director and ordered that the petitioner in W.P.(C) No.5699 of 2006 should be reverted as Draftsman. 7. A similar question was considered by this Court in **K.Harindran** v. **State of Kerala and others** (supra) after referring to circular No.4441/Adv- C3/97/P ARD dated 21.3.1997 and it was held that once a vacancy was reported to the Commission, the vacancy cannot be filled up by promoting an in-service candidate. It was also held that the date of occurrence of vacancy is the crucial date for making appointment and that once the vacancy is notified, it cannot be filled up by direct recruitment. A similar view has been taken by a Division Bench of this Court in **Velayudhan** v. **Secretary to Govt** . - 1985 KLT 793 wherein also, it was held that appointment cannot be made by promotion to a vacancy reported to the Public Service Commission. 8. In the instant case, the vacancy was reported to the Commission on 20.9.2001, more than an year before the petitioner in W.P.(C) No.5699 of 2006 entered service. The vacancy of Artist was in existence as on the date on which it was reported to the Commission by Ext.P3 letter dated 20.9.2001. There is no pleading or proof to indicate that as on the date there were eligible Draftsmen in the Kerala Archaeological WP(C) Nos.5699/06 &29571/07 -: 7 :- Subordinate Service for appointment to the post of Artist. The very fact that the post was reported to the Commission for direct recruitment indicate that there were no qualified Draftsmen in the Department. But it was against the said vacancy that was reported to the Commission that the petitioner in W.P.(C) No.29571 of 2007 applied, selected and was included in the ranked list. In the instant case the vacancy arose on 20.9.2001and in any case, the vacancy was in existence on that date. Therefore, going by the principles laid down by the Division Bench of this Court in **K.Harindran** v. **State of Kerala** - 2006(4) I.L.R. 680 and **Velayudhan** v. **Secretary to Govt** . - 1985 KLT 793, the said vacancy could not have been filled up by promoting the petitioner in W.P.(C) No.5699 of 2006. The stand taken by the Government in Ext.P7 produced in W.P.(C) No.5699 of 2006 cannot therefore be faulted. The relief sought for by the petitioner in W.P.(C) No.5699 of 2006 cannot therefore be granted. 9. By a recent interim order passed by this Court in W.P.(C) No.29571 of 2007, the petitioner therein was advised by Ext.R4(b) memo dated 7.7.2008 produced by the fourth respondent in W.P.(C) No.5699 of 20065. Pursuant thereto she was also appointed. However, the appointment order did not follow because of the directions issued by this Court in W.P.(C) No.29571 of 2007 to the effect that the advice would be provisional and subject to the result of the Writ Petition. 10. In the view that I have taken, no relief can be granted to the WP(C) Nos.5699/06 &29571/07 -: 8 :- petitioner in W.P.(C) No.5699 of 2006. W.P.(C) No.5699 of 2006 accordingly fails and is dismissed. Consequently, the petitioner in W.P. (C) No.29571 of 2007 will necessarily be entitled to be advised and appointed against the post of Artist in the Kerala Archaeological Subordinate Service. W.P.(C) No.29571 of 2007 is accordingly allowed. The Director of Archaeology is directed to appoint the petitioner in W.P. (C) No.29571 of 2007 as Artist based on the advice made by the Commission as per advice memo dated 7.7.2008. Necessary orders in that regard shall be issued within one month from today. P.N.Ravindran, Judge. ess 28/11