S. Sunil Kumar v. State of Kerala and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR** **FRIDAY, THE 1ST OCTOBER 2010 / 9TH ASWINA 1932** **WP(C).No. 15357 of 2009(L)** **---------------------------------------** ## **PETITIONER(S):** **-----------------------** **S. SUNIL KUMAR, LABORATORY TECHNICIAN, STATE PUBLIC HEALTH LABORATORY, THIRUVANANTHAPURAM.** **BY ADV. SRI.N.SUGATHAN, SMT.VARSHA BHASKAR, SRI.S.PRASANTH (AYYAPPANKAVU).** ## **RESPONDENT(S):** **--------------------------** **1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** **2. THE DIRECTOR OF HEALTH SERVICES, THIRUVANANTHAPURAM.** **3. K.P. SUNIL KUMAR,** **PUBLICATION ASSISTANT, DIRECTORATE OF HEALTH SERVICES, THIRUVANANTHAPURAM.** **R1 & R2 BY GOVT. PLEADER MR.P. NANDAKUMAR. R3 BY ADV. SRI.BRIJESH MOHAN, SMT.RESMI G. NAIR.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/07/2010, THE COURT ON 01/10/2010 DELIVERED THE FOLLOWING:** **WP(C) NO. 15357/2009-L** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1: COPY OF THE ORDER NO.A2-28140/04/DMOH DATED 15/10/2004 OF THE DMO OF HEALTH, TVM.** **EXT.P2: COPY OF THE CIRCULAR NO.ED3/6673/06/DHS DATED 14/05/2008 ISSUED BY THE 2ND RESPONDENT.** **EXT.P3: COPY OF THE APPLICATION DATED 04/06/2008 OF THE PETITIONER TO THE 2ND RESPONDENT.** **EXT.P4: COPY OF THE LETTER DATED 06/11/2008 OF THE PUBLIC INFORMATION OFFICER.** **EXT.P5: COPY OF THE REPRESENTATION DATED 16/10/2008 OF THE PETITIONER TO THE 2ND RESPONDENT.** **EXT.P6: COPY OF THE JUDGMENT DATED 05/02/2009 IN WP(C) NO. 33106/2008.** **EXT.P7: COPY OF THE LETTER NO.ED3/90622/08/DHS DATED 13/03/2009 OF THE 2ND RESPONDENT TO THE PETITIONER.** **EXT.P8: COPY OF THE REPRESENTATION DATED 17/03/2009 OF THE PETITIONER TO THE 2ND RESPONDENT.** **EXT.P9: COPY OF THE QUESTION PAPER ISSUED TO THE PETITIONER FOR THE ELIGIBILITY ASSESSMENT TEST HELD ON 20/03/2009.** **EXT.P10: COPY OF THE ORDER NO.EB3-90622/08/DHS DATED 20/03/2009 OF THE 2ND RESPONDENT.** **EXT.P11: COPY OF THE G.O.(MS)NO.310/69/HD DATED 05/11/1969.** ## **RESPONDENT'S EXHIBITS:** **EXT.R2(a): COPY OF THE MINUTES.** **EXT.R3(a): COPY OF THE ARTICLE WRITTEN BY THE 3RD RESPONDENT AND PUBLISHED IN FEBRUARY 2007.** **//TRUE COPY//** **P.S. TO JUDGE** **rs.** ## **C.T. RAVIKUMAR, J.** ## **-------------------------------------------W.P.(C). NO.15357 OF 2009** ## **--------------------------------------------** Dated this the 1[st] day of October, 2010 ## **JUDGMENT** Frustrated by the stagnation in the entry post for over two decades and alleging illegal denial of promotion, the petitioner, who is working as Laboratory Technician in the State Public Health Laboratory under Health Services Department (for short 'the Department' only) filed this Writ Petition. The challenge in this Writ Petition is against Exts. P7 and P10 and the further prayer is for the issuance of a writ of mandamus commanding the second respondent to promote the petitioner to the cadre of Publication Assistant and to grant him all consequential benefits based on that promotion with effect from 20.3.2009. The question of propriety and legality in conducting Eligibility Assessment Test for promotion to the post of Publication Assistant also crop up for consideration in this Writ Petition. 2. The brief facts relevant for the purpose of deciding the issues involved in this Writ Petition are as follows:- The petitioner entered in the service of the Department as Laboratory Technician in the year 1987. On completion of ten years of **W.P.(C) NO.15357/2009** 2 service in the said entry grade, he was granted the first higher grade and on completion of 18 years of service in the said cadre, he was granted the second higher grade as per Ext.P1 with effect from 20.7.2004. Based on Ext.P1, initially he was sanctioned scale of pay of Rs.5000-8150 and based on the pay revision issued in G.O.(P).No.145/06/Fin.dated 25.3.2006, it was revised to Rs.8390-13270. He has been drawing salary in the said revised scale with effect from 20.7.2004. 3. As per Ext.P2 circular dated 14.5.2008, the second respondent invited applications for the post of Publication Assistant in the Department from departmental hands possessing the prescribed qualifications. The qualifications prescribed thereunder were as follows: 1.Graduation 2.Must have produced or published pamphlets, articles or booklets or book in Malayalam. The method of appointment has been provided thereunder as follows: By promotion from the following categories in this Department. _1. Family Planning Health Assistant_ - _2.Health Assistant_ - _3.Public Health Worker_ - _4.Lab Technician_ **W.P.(C) NO.15357/2009** 3 4. The petitioner has passed B.A and Laboratory Technician Course. He had published articles in 'Kerala NGO', a periodical publication of the Joint council of State Service Organisations recognised by the Government of Kerala. Therefore, in response to in Ext.P2 circular, he submitted Ext.P3 application on 4.6.2008. Ext.P4 is the service details of candidates who had submitted applications pursuant to Ext.P2 including that of the petitioner. Indisputably, the petitioner was the seniormost among the applicants and also the highest salary drawer in the highest scale of pay among them. Though, two other Laboratory Technicians namely one Smt.Haripreetha. A.L and Suresh Kumar R were among the applicants, they were much juniors to him. Evidently, the then scale of pay of Laboratory Technician was Rs.8390-13270. As regards the third respondent, he commenced his career under the Department as Junior Health Inspector on 10.8.1997 and he was in the said cadre and his scale of pay was Rs.7480-11910 at the relevant point of time, as is obvious from Ext.P4. 5. Delay in the matter of effecting promotions pursuant to Ext.P2 circular, made the petitioner to file Ext.P5 representation dated 16.10.2008 before the second respondent. Later, for the same reason, he had to **W.P.(C) NO.15357/2009** 4 approach this Court by filing W.P.(C).NO.33106/2008 and the same was disposed of by Ext.P6 judgment. After the receipt of Ext.P6 judgment, the second respondent vide Ext.P7 letter dated 13.3.2009 directed the petitioner to attend an Eligibility Assessment Test on 20.3.2009 at 10 A.M at the Directorate of Health Services, Thiruvananthapuram in connection with the appointment to the post of Publication Assistant. On receipt of Ext.P7, the petitioner had submitted Ext.P8 representation dated 17.3.2010 requesting the second respondent to drop the proposal to conduct Eligibility Assessment Test as it is not a selection post and even as per Ext.P2, the appointment to the post of Publication Assistant was by promotion. Ext.P2 did not provide for constitution of any selection committee or holding eligibility test for promotion to the said post. The post of Publication Assistant is a non-gazatted and non-selection post. Somuch so promotion has to be effected from among the qualified hands in the Department based on seniority and the qualification and experience and also taking into account the scale of pay of the posts held by the applicants. In short, the action on the part of the second respondent in proposing to conduct Eligibility Assessment Test was bad and without jurisdiction and it was in the said circumstances that he assailed Ext.P7 **W.P.(C) NO.15357/2009** 5 through Ext.P8. Non-consideration of Ext.P8 representation by the second respondent made the petitioner, again, to approach this Court through W.P.(C).NO.9083/2009 challenging Ext.P7. The said Writ Petition came up for admission on 20.3.2009, the date on which the Eligibility Assessment Test was scheduled to be held. Hence the petitioner appeared for the Eligibility Assessment Test on 20.3.2009 and thereafter, filed a memo dated 1.6.2009 in the said Writ Petition and based on the same, as per judgment dated 1.6.2009, W.P.(C).NO.9083/2009 was dismissed as withdrawn, but, with liberty to file a fresh Writ Petition with the same subject matter. As already noticed, the petitioner had appeared for the Eligibility Assessment Test held on 20.3.2009. Ext.P9 is the manuscript question paper set for the said test. The subject of the test was shown in Ext.P9 as hereunder:- വ�ഷയ�: മ�റ�ന ജ�വ�ത�വസകള - തജന�മ�യ ര��ഗങള�ട� പ�ത�ര��ധത�ന" ആര��ഗ�വക �പ�ന" എട&�ട' ട(യ�ന�ക��? 6. The applicants were directed to write an essay on the said subject in 20 minutes. As already noticed, the contention of the petitioner is that conducting Eligibility Assessment Test is bad in law and without jurisdiction. No selection committee was also constituted for that purpose. **W.P.(C) NO.15357/2009** 6 After conducting Eligibility Assessment Test on 20.3.2009, the second respondent passed an order provisionally promoting the third respondent to the cadre of Publication Assistant as per Rule 31(a) (I) of Part II of the Kerala State & Subordinate Services Rules, for short 'the Rules' only, in the Directorate of Health services against the existing vacancy. It is challenging the said order viz., Ext.P10 and P7 letter pursuant to which the Eligibility Assessment Test was conducted for effecting promotion based on Ext.P2, that this Writ Petition has been filed. **7** . Before adverting to the rival contentions, at the outset, I may deal with one disturbing aspect. Evidently, as per Ext.P10, the third respondent was promoted provisionally under Rule 31(a) (i) of the Rules. In Ext.P10, it is stated thus: 'This order is also issued in implementation of judgment dated 5.2.2009 in W.P.(C).NO.33106/2008.' The judgment referred to therein is Ext.P6 judgment. Therefore, it is relevant to refer to the operative portion of Ext.P6 judgment and the same reads thus:- _“Since the allegation is that the matter is being prolonged to continue the appointment of a temporary hand, there will be a direction to the second respondent to finalise the selection procedure in respect of the post notified and take appropriate action_ **W.P.(C) NO.15357/2009** 7 _to appoint a regular hand. The same shall be done_ _within a period of two months from the date of receipt of a copy of this judgment._ _(emphasis supplied)_ A bare perusal of Ext.P6 judgment would reveal that taking note of the allegation of the petitioner herein that without resorting to the notified method of appointment, the post of Publication Assistant was sought to be filled up by a temporary hand this Court directed the second respondent to finalise the selection procedure in respect of the said post and to take appropriate action to appoint a regular hand. It is for complying with that direction the period of two months from the date of receipt of a copy of the judgment was stipulated as per Ext.P6 judgment. This fact has not been disputed by the parties and, in fact, it is indisputable in the light of Ext.P6. Therefore, I am of the view that in fact, by effecting temporary promotion under Rule 31 (a)(i) of the Rules in and vide Ext.P10 even after finalising the selection procedure, what was done by the second respondent was not exactly implementation of Ext.P6 judgment whilst it was violation of the specific directions in the said judgment. Ext.P10 would undoubtedly show that it was issued pursuant to Ext.P2 circular dated 14.5.2008, Ext.P6 **W.P.(C) NO.15357/2009** 8 judgment dated 5.2.2009 and Ext.P7 letter dated 13.2.2009. I am at a loss to understand as to how a provisional appointment effected as per Rule 31 (a) (i) of the Rules to the post of Publication Assistant pursuant to Ext.P2 circular could be claimed as an order issued in implementation of Ext.P6 judgment when the specific direction was to the contrary. In unambiguous terms, the second respondent made it clear that the promotion of the third respondent has been made provisionally. The action on the part of the second respondent in effecting a provisional appointment under Rule 31(a) (i) even after referring to Ext.P2 circular and Ext.P6 judgment and then making an assertion in the said order that it has been made in implementation of Ext.P6 judgment is highly deprecative and censurable. In short, the appointment effected as per Ext.P10 is flagrant violation of the specific directions in Ext.P6 judgment and on that sole score, in fact, Ext.P10 is liable to be interfered with. 8. Now, I may refer to certain other relevant aspects. To know the juniority and seniority of the applicants who responded to Ext.P2 circular one need only a glance at Ext.P4. It would reveal that the petitioner was five years senior than the seniormost among the other applicants viz., Shijimon.J going by the length of service. It would also **W.P.(C) NO.15357/2009** 9 reveal that the third respondent had put in only 9 years of service whilst the petitioner had completed more than double the service of the third respondent, at the relevant point of time. The details shown in Ext.P4 as regards the scales of pay of the applicants also cannot escape notice. Ext.P4 would reveal that Serial Nos.5 to 7 therein viz., Haripreetha A.L and one Sri.Suresh Kumar R. and the petitioner belong to the same category of Laboratory Technician. The said Haripreetha A.L had put in service of 9 years ie., equivalent to the service put in by the third respondent and she was then carrying a scale of pay Rs.8390-13270 that is higher than that of the third respondent viz., Rs.7480-11910. However, after recording the category of the petitioner as that of the category to which said Haripreetha A.L belongs, there was no justification or reason to enter a remark against the relevant column pertaining to the petitioner as 'not available' (ലഭ�മല). A reason can be assigned to the effect that the petitioner had not mentioned the same in his application. The entries in Ext.P4 would suggest that the fourth respondent acknowledged the fact that Smt.Haripriya A.L, Suresh Kumar and the petitioner viz., Serial Nos.5 to 7 respectively in Ext.P4, belong to the category of Laboratory Technician. In the column for basic pay of the petitioner and the third **W.P.(C) NO.15357/2009** 10 respondent, the respective entries in therein are '11360' and '8590'. Thus, Ext.P4 is indubitably indicate the clear seniority of the petitioner over the third respondent in the department and in that matter, over all the other applicants, and also the fact that he was drawing pay in a higher scale than that of the third respondent. 9. The issues involved in this Writ Petition have to be addressed bearing in mind the aforesaid indisputable and undisputed facts. The contention of the petitioner is that the post of Public Assistant is a nongazetted and non-selection post. This significant aspect was not specifically disputed by the respondents. Going by Ext.P2, the method of appointment is by promotion from among the following categories under the Department: _1. Family Planning Health Assistant 2. Health Assistant 3. Basic Health Worker 4. Lab Technician_ Ext.P2 circular would further reveal that conduct of an Eligibility Assessment Test was not provided thereunder. According to the petitioner, in the said circumstances, Ext.P11 G.O prescribing the qualification and the method of appointment assume relevance. The **W.P.(C) NO.15357/2009** 11 petitioner has also contended that Government have ordered as per Memorandum dated 8.10.1969 that when there are more than one feeder category for promotion to a post, persons belonging to the feeder category with higher scale of pay should be considered to have preferential claim. In fact, later guideline was incorporated as note(vi) under sub clause 7 of rule 28(b)(i) of Part II Kerala State & Subordinate Services Rules . It reads thus: _“When there are more than one feeder category carrying different scales of pay, they shall be shown in separate lists and persons in a lower scale of pay shall be appointed only after appointing all person on a higher scale of pay, unless the Special Rules prescribe a ratio or any special order of preference for each feeder category”._ 10. Now, I may advert to the moot question as to whether, in the matter of promotion to the post of Publication Assistant, Eligibility Assessment Test could have been conducted on or not. As already noted, the contention of the petitioner is that the said post is a non-gazetted one and it is a non- selection post. It is in view of the said position and also of the total absence of prescription to constitute a selection committee and/or **W.P.(C) NO.15357/2009** 12 to conduct such a test in Ext.P2 and in Ext.P11 G.O dated 5.11.1969 that the petitioner would contend that the action on the part of the second respondent in conducting the eligibility assessment test on 20.3.2009 as part of filling up of posts in terms of Ext.P2 ie., for effecting promotion to the post of Public Health Assistant as illegal and without jurisdiction. 11. As per Ext.P11 G.O dated 5.11.1969, the qualifications and method of appointment to various posts under the Health Services Department including Publication Assistant have been prescribed. Clause 3 thereunder reads thus: ## **III. Publication Assistant** **1. Qualifications:-** - i. Graduation; - ii Must have produced or published pamphlets, articles or booklets or books in Malayalam. ## **2. Maximum age limit for direct recruitment:** 25 years with relaxations as per rules. ## **3. Method of appointment:-** - i) By promotion from the following categories in the Health Services Department:- _1. Family Planning Health Assistant_ **W.P.(C) NO.15357/2009** 13 _2.Health Assistant_ _3.Public Health Worker_ _4.Lab Technician_ _(in the absence of candidates under item (i) above)_ _ii) By direct recruitment._ A perusal of Ext.P11 G.O and Ext.P2 circular would thus make it abundantly clear that they did not provide for constituting any selection committee or for conducting eligibility assessment test. It is apparently because the post of Publication Assistant is a non-selection and nongazetted post as well. That apart, admittedly, the method of appointment is by promotion from among the categories viz., 1. Family Planning Assistant, 2. Health Assistant, 3. Basic Health Worker and 4. Laboratory Technician under the Health Services Department. The last date fixed in Ext.P2 circular for receipt of applications from the departmental hands was 30.6.2008. It was after about 9 months that selection committee was constituted by the second respondent as per order No.EV3/90622/08/DHS dated 13.3.2009. It was on the same date itself that Ext.P2 circular has been issued requiring the petitioner to attend for an eligibility assessment test on 20.3.2009. The said order constituting the committee was made available by the learned Government Pleader. The contention of the **W.P.(C) NO.15357/2009** 14 official respondents is that such a committee was constituted in terms of the directions of this Court in Ext.P6 judgment. At the very outset, it is to be noted that there was absolutely no basis for such contention and it can only be a mis-construction of Ext.P6 judgment. The learned Government Pleader had submitted that pursuant to the notification, the respondents have received applications from various candidates including the petitioner and therefore, the eligibility of the applicants was to be considered. However, a scanning of the operative portion of Ext.P6 judgment, as already extracted, would reveal that it carried no such direction. In fact, it would reveal that taking note of the allegation of the petitioner and the submission of the learned Government Pleader, a direction was issued to the second respondent only to finalise the selection procedure in respect of the post notified namely, Publication Assistant and to take appropriate action to appoint a regular hand. It is precisely for complying with the said direction that two months time was stipulated thereunder. Any such direction by this Court can only be taken as a direction to comply the selection process in accordance with law. Conspicuously, it contained no direction to constitute a selection committee to conclude the selection procedure. In short, the official respondents cannot be permitted to take **W.P.(C) NO.15357/2009** 15 shelter under Ext.P6 judgment to justify the action in constituting the selection committee and then conducting an eligibility assessment test in case such a course of action is impermissible. In that view of the matter, the propriety and illegality of constitution of the said selection committee, rather, the action on the part of the respondents in conducting eligibility assessment test for promotion to the post of Publication assistant are to be decided taking note of the nature and status of the posts and the method of appointment in terms of Ext.P2 and Ext.P11 G.O dated 5.11.1969. Indisputably, the post of Publication Assistant is a non-gazetted and nonselection post. Ext.P11 G.O, whereby the qualification and method of appointment to the post of Publication Assistant were prescribed, did not provide for constitution of a selection Committee and there is nothing in Ext.P11 G.O as also in Ext.P2 circular to suggest that the said post of Publication Assistant is a selection and a gazetted post and therefore, there was no justification for constituting a selection committee. From the facts obtained in this case, it is evident that the official respondents have conducted a selection test and as part of the selection process, virtually, conducted an essay writing competition. The highest scorer was held as the fit person for the post of Publication Assistant and thus given a go-by **W.P.(C) NO.15357/2009** 16 to seniority and fitness which should have been the basis for the selection. In other words, they have conducted a selection test to effect promotion to a non-selection and non-gazetted post. In the said circumstances, it is contended by the petitioner that acceptance and recognition of such a course of action adopted by the respondents would convert the post of Publication Assistant as a selection post. The selection should have been one based on seniority-cum-suitability basis going by Ext.P2 and Ext.P11 G.O dated 5.11.1969. To drive home the illegality in the said course of action adopted by the official respondents, the petitioner relied on a Full Bench decision reported in _**Suresh v. Manager, S.N.M College (2003 (3) KLT 839)**_ . The Full Bench was dealing with the issue of promotion to the post of Principal of an aided college under Mahatma University. Does a provision providing for promotion to the post of Principal of a college on the basis of seniority and is it fitness permit a comparative assessment was the question considered and decided by the Full Bench. While answering the said question, the Full Bench framed two other questions namely, what is the meaning of seniority-cum-fitness and whether the management is entitled to make a comparative assessment. Paragraph 19 in the said decision assumes relevance and the same reads thus: **W.P.(C) NO.15357/2009** 17 _“What is the meaning of seniority-cum-fitness? Is the Management entitled to make a comparative assessment? The issue was considered by a Full Bench of this Court in State of Kerala v. Rev.Mother Provincial (AIR 1970 SC 2079). The Bench was dealing with the issue in the context of an institution administered by a religious minority. While dealing with the provisions of the Kerala University Act, 1969, it was inter alia observed at page 772 that “the test of seniority-cum-fitness prescribed in the sub-section does not mean that promotion is to be on the principle of seniority subject to fitness which is the test adopted for 'non-selection' posts in the civil service rules of the state. Seniority-cum-fitness means that due and equal regard should be paid both to seniority and to fitness, and, since fitness is a matter of degree, it would appear that a senior person can be overlooked in favour of a junior who is demonstrably more fit for the ” appointment that he is . Thus, the Bench was of the view that the provision for promotion on the basis of seniority-cum-fitness permits the Management to select_ **W.P.(C) NO.15357/2009** 18 _a junior, who is demonstrably more fit than the senior._ _In other words, the rule of comparative assessment was applied. Since the Bench was examining the whole issue in the context of the right of a minority institution, various provisions of the Act were held to be violative of Arts.19(1)(f) and 30(1) of the Constitution. This decision was challenged by the State before their Lordships of the Supreme Court to a limited extent. So far as the finding regarding provision for promotion to the post of Principal was concerned, the question was not raised. The judgment of the Full Bench was affirmed by the Supreme Court in Mother Provincial's case in so far as the challenge levelled by the State was involved._ Paragraph 21 therein reads thus: _Normally, in view of the pronouncement by the two Full Benches, the matter should be treated as concluded. However, the correctness of the view taken in these two Full Bench decisions was questioned on the basis of the observations of their Lordships of the Supreme Court in Lt.General Rajendra Singh_ **W.P.(C) NO.15357/2009** 19 _Kadyan's case. These observations clearly indicate that a senior person can be denied promotion when he is found to be unfit. Not otherwise. Not on the basis of comparative assessment_ . It is evident from paragraph 19 that the principle of seniority subject to fitness should be the criteria for ‘non-selection’ posts under the Civil Services rules of the state. Paragraph 21 therein would reveal that a senior person could be denied promotion when he is found to be unfit and not otherwise. Relying on the said observations made by the apex court in _**Lt. General Rajendra Singh Kadyan's**_ case, it was held by the Full bench that the said observation would clearly indicate that the senior person could be denied promotion only when he was found to be unfit based on qualification and experience prescribed for the post and not otherwise and furthermore, not on the basis of a comparative assessment. In the light of the Full Bench decision, it can only be held that as far as a non-selection post like Publication Assistant is concerned, the principle of seniority subject to fitness should be the basis for effecting promotions. In other words, a senior person is bound to be promoted unless he is found to be unfit for the post. The learned counsel appearing for the petitioner has also relied on the decision of the apex court in _**Valsala Kumari Devi v.**_ **W.P.(C) NO.15357/2009** 20 _**Director, Higher Secondary Education**_ reported in _**2007(4)KLT 494 (SC)**_ . It is held thereunder that the expression ‘subject to seniority and suitability' occurring in G.O dated 27.6.1990 did not mean a comparative assessment of suitability and it means only the suitability for the particular post and the suitability is related to the prescribed qualification and requisite experience. The decision of a Division Bench of this court in _**Gigimol v. Director of Higher Secondary Education**_ reported in _**2008(1) KLT 278**_ has also been relied on. Evidently, as per the said decision, this court observed that the words seniority and suitability could mean seniority and qualification and requisite experience and it did not mean the comparative assessment of suitability. Evaluation of the contentions raised in this Writ petition in the light of the decisions referred above would reveal that the comparative assessment of the eligibility made by the committee constituted for the purpose of effecting promotion to the post of Publication Assistant is beyond its jurisdiction and beyond the purview of the rules governing the method of appointment. In that context, it is also to be noted that Ext.P2 notification also did not provide for constitution of a selection committee and for conducting a test. Therefore, after the notification, the selection procedure should not have been changed. The **W.P.(C) NO.15357/2009** 21 said contention is well founded in the light of the decision of the Apex Court reported in _**K. Manjusree v. State of Andhra Pradesh**_ ( **2008 (3) SCC 512)** . Considering the nature and the status of the post of publication assistant, viz., non-selection and non-gazetted, the principle of seniority subject to fitness test should have been adopted by the official respondents in the matter of promotion to the post of Publication Assistant. A scanning of the contentions raised in the counter affidavit filed on behalf of the second respondent would reveal that a committee was constituted for the purpose of conducting a comparative assessment of the eligibility of the candidates and according to the respondents, the third respondent had secured highest marks in the eligibility assessment test. As already noted, all the candidates, who appeared for the eligibility test were made to write an essay on the subject mentioned above in twenty minutes. The very fact that the third respondent secured the highest marks in the said eligibility assessment test would reveal that the third respondent was preferred in the matter of promotion based solely on his marks in the eligibility assessment test. According to the respondents, as has been given under paragraph 5 of the counter affidavit, mere service seniority could not be taken as the basis for promotion to the post of Publication Assistant and it is required to **W.P.(C) NO.15357/2009** 22 assess the eligibility of the candidates in presentation on facts, knowledge of language clarity etc. Admittedly, a comparative assessment test was held and as part of the same, the applicants were made to write an essay on the subject mentioned above and valuation of the answer scripts were also effected as part of the said assessment. Such a course of action is unheard of even for filling up a selection post under the state service. If such a procedure is given the seal of approval by this Court it would virtually amount to permit a subordinate authority to deviate from the prescribed rules without authority. There cannot be any doubt that Ext.P11 has been issued by the government. Therefore, conducting of such a test which is in fact would contrary to the procedures prescribed under Rule 28(b) (ii) of part II of the KS & SSR cannot be upheld. Rule 28 (b) (ii) from Part II of the KS & SSR reads thus: _**Promotion and appointment by transfer to higher posts according to seniority:-** All other promotions or appointments by transfer to higher posts shall, subject to the provisions of these rules, and the special rules, be made in accordance with seniority subject to the person being considered suitable for the post. Punishments other than censure awarded within a_ **W.P.(C) NO.15357/2009** 23 _period of three years immediately preceding such promotion or appointment by transfer shall be taken into account in determining the suitability of a person for promotion or appointment by transfer._ The second respondent should have strictly adhered to the procedures for promotion or appointment by transfer for filling up the above nonselection post and at any rate, a deviation from the same, as has been done in this case, cannot held as within the competency of the second respondent and in conformity with the relevant rules. I am of the considered view that an essay writing competition cannot be the basis for filling up a non-selection and non-gazetted post. In short, the action on the part of the second respondent in constituting a selection committee and then conducting a comparative assessment after compelling the candidates to write an essay on a particular subject for effecting promotion to a nonselection and non-gazetted post is wholly unsustainable. No authority like the 2[nd] respondent should be allowed to evolve his own method for effecting promotion in a Department ignoring the prescribed procedures. In the said circumstances, Exts.P7 and P10 are liable to be set aside. Evidently, the third respondent was preferred in the matter of promotion based on the valuation of the answer scripts. Since the very appointment of **W.P.(C) NO.15357/2009** 24 the third respondent was made based on the same, it cannot be sustained. Going by Ext.P10, the third respondent was appointed only on a provisional basis. The selection process was initiated as per Ext.P2 for effecting promotion on a regular basis against an existing vacancy. In fact, the directions in Ext.P6 judgment was to conclude the selection procedure initiated as per Ext.P2 and to effect a regular appointment. Indisputably, a comparison of the service particulars of the petitioner and the third respondent would reveal that the petitioner was senior to the third respondent and admittedly, the senior most among the applicants, and the post held by the petitioner carries a higher scale of pay than that of the post held by the third respondent. There is no reason for holding the petitioner as unfit on assessment of the qualifications prescribed for the post, as admittedly, he satisfies all the qualifications prescribed as per Ext.P2 and in Ext.P11. If the petitioner was unfit on the basis of assessment of the qualifications prescribed for the concerned post, definitely, he would not have been permitted to partake in the eligibility assessment test. Hence, the very action in permitting the petitioner to participate in the aforesaid test would tantamount to acknowledgment of possession of prescribed qualification for the post by the petitioner. There was no reason for **W.P.(C) NO.15357/2009** 25 preferring the third respondent based solely on the fact that he had secured more marks in essay writing. The long and short of the discussions is that the appointment of the third respondent effected allegedly in purported compliance of Ext.P6 judgment of this court cannot be said to be a regular selection and therefore, the appointment of the third respondent effected as per Ext.P10 pursuant to Ext.P2 circular is unsustainable. In fact, the counter affidavit filed on behalf of the third respondent virtually endorse the views and contentions raised in the counter affidavit filed by the second respondent. Even according to the third respondent, he was appointed as per Ext.P10 solely based on the fact that he secured the higher marks in the eligibility assessment test. The contention of the third respondent that the petitioner is estopped from challenging the selection procedure after having participated in the eligibility test held on 20.3.2009 cannot be upheld in the light of the position of law and in the peculiar circumstances of the case. When conducting of such a test was wholly impermissible, it should not have been conducted at all. That apart, the petitioner has, at every point, objected to the very conduct of such a test. Therefore, it cannot be said that he had participated in the test without any demur. I am of the view that the action on the part of the official **W.P.(C) NO.15357/2009** 26 respondents in appointing the third respondent based on his performance in the aforementioned eligibility test held on 20.3.2009 disregarding the aspect that the test in question is a non-selection and non-gazetted one is illegal and arbitrary and liable to be set aside. For all these reasons, Exts.P7 and P10 are set aside. In the absence of a contention in the counter affidavit filed on behalf of the second respondent that the petitioner was unfit for the post based on an assessment of the qualifications prescribed for promotion to the post and considering the fact that among the applicants admittedly, he was the senior most among all candidates even among those in the higher scale of pay, the contention of the petitioner that there was no reason for denying promotion to him as Publication Assistant can be said to be well founded. Even in the absence of quashment of Ext.P10, the third respondent could not have claimed for continuation in the said post based on Ext.P10 as his appointment as per the same was only a provisional promotion under Rule 31 (a) (i) of Part II of KS & SSR. A Division Bench of this Court held in the decision reported in _**1994(1) KLT 603**_ relying on the decision of this Court in _**1990 (1) KLT 176**_ and that of the Apex Court in _**AIR 1976 SC 537**_ that in a fit and proper case, this Court, in exercise of jurisdiction under Article 226 **W.P.(C) NO.15357/2009** 27 can pass the order which the respondent should have passed had it properly and lawfully exercised its jurisdiction. Undoubtedly, the post of Publication Assistant is a non-selection, non-gazetted post. The petitioner is the seniormost among the applicants and he holds a post that carries the highest scale of pay. Evidently, he was not unfit for the post lest he would not have been called for the aforementioned test. Since no comparative assessment could have made the petitioner, by virtue of the aforesaid aspects, should have been granted the promotion. In the circumstances, I am of the view that the petitioner is entitled to get promotion to the post of Publication Assistant with all consequential benefits with effect from 20.3.2009, the date on which the third respondent was granted promotion to the said post. The official respondents are, therefore, directed to effect regular promotion to the post of Publication Assistant with all consequential benefits with effect from 20.3.2009. Since the provisional appointment of the third respondent was made in blatant violation of the specific directions in Ext.P6 judgment, it will be open to the Government to recover the loss if any, caused on account of such appointment either from the third respondent or from the person concerned who caused such an appointment ignoring the specific directions in Ext.P6 after identifying **W.P.(C) NO.15357/2009** 28 the person and affording him/her a proper opportunity of being heard. The Writ Petition is disposed of as above. **(C.T. RAVIKUMAR, JUDGE)** ## **spc** **W.P.(C) NO.15357/2009** 29 ## **C.T. RAVIKUMAR, J.** **JUDGMENT September, 2010**