# **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
# **PRESENT**
**THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN**
**&**
**THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN**
**WEDNESDAY, THE 26TH DAY OF FEBRUARY 2020 / 7TH PHALGUNA, 1941**
**WA.No.343 OF 2019**
**AGAINST THE ORDER/JUDGMENT IN WP(C) 33340/2018(N) OF HIGH COURT OF KERALA**
## **APPELLANT/S:**
**RAJEEV R., AGED 34 YEARS S/O.RAJENDRAN NAIR, OIL PALM QUARTERS, ROOM NO.12, VILAKKUPARA.P.O., KETTUPLACHY, KOLLAM-691312.**
**BY ADVS. SRI.R.SANJITH SMT.K.JASMIN BABY SMT.C.S.SINDHU KRISHNAH SMT.ASHI SUKUMARAN SRI.B.R.ANEES SMT.CHARUTHA BHAIJU SMT.P.S.ANJU SMT.ANEETA THOMAS**
## **RESPONDENT/S:**
**1 OIL PALM INDIA LIMITED KODIMATHA KODIMATHA, KOTTAYAM, KERALA-686013 REPRESENTED BY ITS MANAGING DIRECTOR. 2 SENIOR MANAGER(HRD), OIL PALM INDIA LIMITED, KODIMATHA, KOTTAYAM, KERALA-686013. 3 MANAGER ESTATE SENIOR MANAGER(HRD) OIL PALM INDIA LIMITED KODIMATHA, KOTTAYAM, KERALA-686013. R1-3 BY ADV. STANDING COUNSEL(B/O)**
## **OTHER PRESENT:**
**SRI.VIPIN NARAYAN**
**THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 26.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
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## **JUDGMENT**
Dated this the 26[th] day of February, 2020
## K.Vinod Chandran, J.
The appellant is the writ petitioner. The appellant's contention was that he was entitled to be considered for the selection carried out from in-service candidates. The notification issued by the respondents was for the post of Aaya, Hospital Attendant (Medical Orderly), Lab Attendant, Messenger, Sweeper and Watcher. The notification calling for applications for appointment was issued on 01.03.2018. As the notification provided; eligible candidates are persons who have five years continuous service immediately preceding the date of notification and also 70% attendance in each of the said five
years.
2. The appellant applied under the said notification, but, however, his application was rejected for reason of he not having 70% attendance in two years coming within the
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five-year period. Later, the respondent company realized a mistake in transposing the prescription in the rules to the notification, the latter of which was in the vernacular Malayalam. The Rules provided for only 70% attendance in the five-year period taken together. By that time, the written test, as per the first notification, was completed, but, the interview was not commenced. In such circumstances, realizing the mistake, the respondent company issued a corrigendum notification dated 30.08.2018. In that, it was specified that all persons, who had 70% attendance in all the five years together cumulatively, would be entitled to apply. It was also specified in the second notification that only those, who had attendance as per the Recruitment Rules, i.e., above 70% cumulatively in the five years, need apply afresh. The appellant again applied under the second notification. His application was rejected for
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the reason of the earlier application having been rejected.
3. The petitioner contended before the learned Single Judge that he had 70% attendance in the five years. It was also submitted that the rejection of the application for reason of it having been rejected earlier was not proper. The petitioner also submitted his own computation of the attendance and claimed that he had 71.53% attendance. The respondent, however, objected to the same, specifically pointing out that the petitioner had included Sundays, which were not wage-earning-days for the purpose of computation.
4. The learned Single Judge found that the rejection of the second application of the petitioner on the premise of the earlier application having been rejected is illegal. The learned Single Judge then considered the claim of 71.53% attendance and it was found that the computation has to be in the manner, in which the company suggested, excluding the non-wage earning
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holidays, and that in such computation, the petitioner would have only 68.59% attendance. The petitioner was then found ineligible even under the second notification.
5. The learned counsel for the appellant submitted before us that having found the rejection itself to be illegal, the learned Single Judge ought to have directed fresh consideration by the company. It is also submitted that the computation has to be on the basis of the attendance as existed on the date of the second notification. It is argued that both the notifications should be set aside and a fresh selection ordered from eligible candidates as per law. The learned counsel for the respondent company, however, supports the judgment of the learned Single Judge.
6. The appellant obviously raises a claim on the basis of his computation of the percentage of attendance. We first deal with the issue; whether the learned Single Judge has committed any error in having found the rejection to be illegal and
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not permitting the appellant's participation in the examination or directing a re-consideration. Learned counsel for the appellant has relied on **Mohinder Singh Gill & Another** v. **The Chief Election Commissioner, New Delhi & Others** [(1978) 1 SCC 405]. It is, no doubt, an established principle that the order rejecting a claim has to be sustained on the reasons stated therein or has to be set aside. Going by **Mohinder Singh Gill** 's case (supra), we have no doubt that the finding of the learned Single Judge that the order is illegal has to be sustained. In that context, was there any scope for reconsideration is the question posed before us.
7. The learned Single Judge, in the impugned order, has gone ahead and considered whether the claim of the appellant can be sustained, especially to avoid multiplicity of litigation. Having found that the computation has to be in the manner as suggested by the respondent company, the learned Single Judge could not have directed
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participation of the appellant since he was found ineligible; having fallen behind in the attendance percentage prescribed. In such circumstances, there was also no warrant for directing a fresh consideration by the company since then it would be a useless formality, the learned Single Judge having already upheld the method of computation of attendance percentage as offered by the company.
8. The next contention raised is as to whether the computation of attendance has to be as on the date of the first notification or the second notification. We perfectly agree with the learned Single Judge that the computation has to be as on the date of the first notification since the second notification was only a corrigendum rectifying the earlier notification. In this context, we have to notice that the requirement as per the first notification itself was of five years experience, which is in accordance with the Recruitment Rules. The second notification was
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necessitated only since an error had crept in insofar as the 70% in the attendance being prescribed for each among the five years. There could be instances, where the workers had attained the minimum five-year-period after the first notification. Such persons were not entitled to apply under the second notification and hence, the specific condition that those whose applications were rejected in the first instance, cannot apply again. Only persons who were entitled to apply as per the Recruitment Rules even at the time of first notification would be eligible for applying at the second instance. We perfectly agree with the learned Single Judge that company's measure to have allowed the second application to be related back to the date of first notification is correct.
9. The next contention is with respect to the claim raised of percentage of attendance, which the learned Single Judge has elaborately considered and rejected. The learned Single Judge has looked
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at the computation as arrived at by the petitioner and also by the respondent company. As per the petitioner's computation, the denominator being the total working days is 300 whereas as per the company's computation, the denominator is 313 working days. We agree that the company's computation has to be accepted and in such circumstances, the petitioner falls short of the 70% required attendance. We do not find any reason to interfere with the judgment of the learned Single Judge. The writ appeal is rejected accordingly. No order on costs.
## **Sd/-**
## **K.VINOD CHANDRAN**
## **JUDGE**
**Sd/-**
## **P.V.KUNHIKRISHNAN**
**JUDGE**
Bka/27.02.2020
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## **APPENDIX**
**PETITIONER'S/S EXHIBITS:**
**ANNEXURE A1 TRUE COPY OF THE WAGE SLIPS OF MR.SONI C.S.**
