Santhosh Kumar S.V and others v Kerala Public Service Commission and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **FRIDAY, THE 19[TH] DAY OF AUGUST 2022 / 28TH SRAVANA, 1944** ## **WP(C) NO. 16709 OF 2019** |**WP(C) NO. 16709 OF 2019**|**WP(C) NO. 16709 OF 2019**| |---|---| |**PETITIONER/S:**|| |1|SANTHOSH KUMAR.S.V| ||AGED 48 YEARS| ||S/O. P.V.VALSALAN, ABKARI WORKER C1, KERALA STATE| ||BEVERAGES (M AND M) CORPORATION LTD, FL-9 WAREHOUSE,| ||KODUMTHARA, PATHANMTHITTA, PIN-689 645, RESIDING AT| ||VALAYAMKANADATHIL HOUSE, ANGADI P.O, RANNY,| ||PATHANAMTHITTA,PIN-689 674| |2|VIPIN VISWAM.P.| ||AGED 37 YEARS| ||S/P. P.V.VISWAM, ABKARI WORKER C1, KERALA STATE| ||BEVERAGES (M AND M) CORPORATION LTD, KSBC FL-1,SHOP| ||NO.8028, MILLUPADI,THAIKKAD, THRISSUR,PIN-680| ||104,RESIDING AT PERINGAYIL HOUSE, KANDASSANKADAVU| ||P.O., THRISSUR, PIN-680 613| |3|DINESH.M.,| ||AGED 42 YEARS| ||S./O. MAYANDI, ABKARI WORKER C2, KERALA STATE| ||BEVERAGES (M AND M) CORPORATION LTD, KSBC FL-1,SHOP| ||NO.9004, KODUVAYUR, MENONPARA, PALAKKAD,PIN-678| ||556,RESIDING AT THOTTANKARA KALAM HOUSE,| ||PALLASSANA .P.O., PALAKKAD,PI-678 505| |4|A.PGIRISH,| ||AGED 43 YEARS| ||S/O. V.P.RAGHAVAN NAIR, ABKARI WORKER C3-A, KERALA| ||STATE BEVERAGES (M AND M) CORPORATION LTD, KSBC FL-| ||1,SHOP NO.10001,CHAMARAVATTOM JUNCTION, PONNANI,| ||MALAPPURAM,PIN-679 577, RESIDING AT VATTAPARAMBIL| ||HOUSE, PERUMPARAMBU P.O., EDAPPAL, MALAPPURAM| ||DISTRICT, PIN-679 576| |5|ASOK KUMAR.G.,| ||AGED 43 YEARS| ||S/O. GOPINATHAN PILLAI, ABKARI WORKER C3-A, KERALA| ||STATE BEVERAGES (M AND M) CORPORATION LTD, KSBC FL-| ||1,SHOP NO.2024, VALAKOM, KOTTARAKKARA, KOLLAM, PIN-| ||691 506,RESIDING AT ANITHAVILASAM, THEVANNOOR P.O.,| ||AYOOR, KOLLAM,PIN-691 533| |6|MADHU.B.,| ||AGED 49 YEARS| ||S/O. R. BALACHANDRAN NAIR (LATE), ABKARI WORKER C3,| ||KERALA STATE BEVERAGES (M AND M) CORPORATION LTD,| ||KSBC HEAD OFFICE, BEVCO TOWER, PALAYAM,| ||THIRUVANANTHAPURAM, PIN-695 033, RESIDING AT| ||SINDHOOS, ENRA 18A, ENCHAKKL, THIRUVANANTHAPURAM,| ||PIN-695 008| W.P.(C) No.16709 of 2019 -2- 7 SIJI.K.J., AGED 39 YEARS W/O. BAIJU.M.,ABKARI WORKER C3, KERALA STATE BEVERAGES (M AND M) CORPORATION LTD, KSBC HEAD OFFICE, BEVCO TOWER, PALAYAM, THIRUVANANTHAPURAM, PIN-695 033, RESIDING AT RAJAMALLI, TC-40/945(2), SREEVARAHAM, MANCAUD P.O., THIRUVANANTHAPURAM, PIN695 009 8 RAJESH.C., AGED 41 YEARS S/O. CHANDRASENAN.N.,ABKARI WORKER C2, KERALA STATE BEVERAGES (M AND M) CORPORATION LTD, KSBC FL-1 SHOP NO.1011,POWER HOUSE, THIRUVANANTHAPURAM, PIN-695 036 RESIDING AT RAJESH BHAVAN, MITHRANIKETHAN.P.O., VELLANAND, THIRUVANANTHAPURAM,PIN-695 543 BY ADVS. T.N.SREEKALA M.B.SOORI ## **RESPONDENT/S:** 1 KERALA PUBLIC SERVICE COMMISSION REPRESENTED BY SECRETARY ,PATTIM, THIRUVANATHAPURAM695 004 2 THE MANAGIND DIRECTOR, KERALA STATE BEVERAGES (M AND M) CORPORATION LTD, SASTHAKRIPA, OFFICE COMPLEX, SASTHAMANGLAM, THIRUVANANTHAPURAM,-695 010 3 STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO THE GOVERNMENT OF KERALA, STATE SECRETARIAT, THIRUVANANTHAPRUAM-695 001 BY ADVS. SRI.P.C.SASIDHARAN, SC, KPSC SRI.NAVEEN.T., SC, KERALA STATE BEV.CO. M. AND M. GOVERNMENT PLEADER ## **OTHER PRESENT:** GP VENUGOPAL V **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON** **08.03.2022, THE COURT ON 19.08.2022 DELIVERED THE FOLLOWING:** W.P.(C) No.16709 of 2019 -3- ## **JUDGMENT** Dated this the 19[th] day of August, 2022 The petitioners are employed as Abkari Workers in the second respondent Corporation. The Public Service commission/ first respondent had issued Ext.P1 notification inviting applications from qualified candidates for appointment as L.D.Clerk (By Transfer) in the Kerala State Beverages Corporation Ltd (BEVCO). 10% of the vacancies in the post of L.D.Clerk was reserved for by-transfer appointment from lower grade employees. Considering themselves to be eligible for appointment in the 10% vacancies, petitioners submitted applications. Based on their performance in the OMR test, the petitioners' names were included in Ext.P5 probability list published and the petitioners were called upon to produce service certificates, countersigned by -4- ## W.P.(C) No.16709 of 2019 the second respondent. To the petitioners’ dismay, the second respondent refused to sign the certificate in the prescribed format. Instead certificates with the entry “appointed based on G.O.(MS)NO.36/2011/TD dated 24/2/2011” were issued. Ext.P6 is one such certificate. Accordingly, the petitioners produced Ext.P6 and similar certificates during the course of certificate verification. 2. After completing the process of selection the first respondent published Ext.P7 rank list, without including the petitioners’ names. On searching the website of the first respondent, it was seen that the status of the petitioners’ applications was shown as “rejected”. On enquiry, the petitioners came to understand that their were not included in the rank list for the reason that their appointment was based on Ext.P9 Government Order and not based on a selection process. According to the W.P.(C) No.16709 of 2019 -5- petitioners, they being in the regular service of the second respondent, are entitled to be considered for by-transfer recruitment from among lower grade employees. Aggrieved by the noninclusion of their names in Ext.P7 rank list, the writ petitioners have approached this Court, seeking the following reliefs; _“(i) Declare that the "note" below Serial No.18 of Exhibit P2 to the extent it limits the 10% vacancies reserved for other low paid employees in the service of the Corporation among those "holding posts, the recruitment fall within the purview of the commission" is ultra-vires the main provision and hence arbitrary, discriminatory, without jurisdiction and hence unconstitutional; (ii) Issue writ of Certiorari or any other writ, order or direction, calling for the records leading to issue the "note" below Serial No.18 of Exhibit P2, to the extent it reads "holding posts, the recruitment fall within the purview of the commission" and quash the same._ _(iii) Declare that differentiating the petitioners with that of the other employees of the 2[nd] respondent based on the source of_ ## W.P.(C) No.16709 of 2019 -6- _recruitment is arbitrary, discriminatory and violative of equality clauses enshrined under Articles 14 & 16 of the Constitution;_ _(iv) Declare that the rejection of the petitioners candidatures by the 1[st] respondent, to the by transfer appointment to the post of L.D. Clerk, is arbitrary, discriminatory and hence, unconstitutional;_ _(v) Issue a writ of mandamus or any other writ, order or direction, commanding the 1[st] respondent to include the petitioners in the Exhibit P7 ranked list, with a further direction to issue advice memos to the petitioners on the basis of their position in P7 ranked list;_ _(vi) Issue a writ of mandamus or any other writ, order or direction, commanding the 2[nd] respondent to appoint the petitioners on the basis of the advice memos issued by the 1[st] petitioner;_ _(vii) Award costs of and incidental to this petition.”_ 3. Learned counsel for the petitioners contended that, non-inclusion of petitioners’ names in Ext.P7 rank list is patently arbitrary and discriminatory. It is submitted that as per ## W.P.(C) No.16709 of 2019 -7- Ext.P1 notification, 10% vacancies are reserved for by-transfer appointment from lower grade employees. In spite of the petitioners being lower grade employees, their rights have been curtailed by incorporating Note (b) to Clause 7 of Ext.P1, stipulating that the 10% reservation is only for lower grade employees in the service of the Corporation holding posts, the recruitment of which falls within the purview of the Public Service Commission. It is contended that the note is _ultra vires_ the main provision and hence liable to be set aside as unconstitutional, as notes cannot control the Rules, but can only aid in interpreting the Rules. In support of the contention, learned counsel placed reliance on the decisions in _**Punjab State Electricity Board Ltd v. Zora Singh and others [(2005) 6 SCC 776], V.B.Prasad v. Manager, PMDUP School and others [(2007) 10 SCC 269]** and_ _**Saji C.M v. State of**_ W.P.(C) No.16709 of 2019 -8- ## _**Kerala and others [2015 (4) KHC 753]**_ . Reliance is placed on Ext.P15 Government Order dated 12/2/2021, to contend that the post of abkari worker is redesignated as LD clerk(NC-A),(NC-B) and (NC-C). In view of the re-designation, the respondent can no longer contend that abkari workers do not fall under the category of regular employees of the Corporation. 4. Learned Standing Counsel for the first respondent submitted that on verification of the service certificates submitted by the petitioners, it was found that the names of the post held by them was abkari worker and they were appointed based on Ext.P9 Government Order. On perusal of the Government Order, it can be seen that, apart from the sanctioned posts, there are three types of abkari workers serving in the second respondent Corporation. In paragraph 4 of the Government Order, it is clearly stated that ## W.P.(C) No.16709 of 2019 -9- these three types of abkari workers are not appointed against any sanctioned posts in the second respondent Corporation. In Ext.P1 notification, it is specified that lower grade employees in the regular service of the Corporation alone are eligible for consideration for by-transfer recruitment. 5. Learned Standing Counsel for the Corporation submitted as follows; **==> picture [381 x 12] intentionally omitted <==** Corporation is governed by its own recruitment rules approved by the Government as per G.O. dated 12.01.2007, which has been amended from time to time. The recruitment rules do not contain the post of abkari worker. The engagement of the abarki workers is not based upon the selection conducted by the public service commission. They were engaged from among employees of private contractors when the retail shops were taken over by the Corporation in the ## W.P.(C) No.16709 of 2019 -10- year 2001, dependents of the abkari workers who perished after the ban of arrack sale in the State and those engaged on daily wage basis. As by-transfer appointment to the category of LD clerk is to be affected from employees in the regular service of the Corporation, the petitioners cannot aspire for the appointment. After initial engagement on daily wage basis, the petitioners were absorbed/continued in the Corporation based on Government orders. In Ext.P9 Government order, it is specifically stated that the abkari workers are not appointed against sanctioned posts. Under no circumstance can an abkari worker, who had started his service in the Corporation on daily wage basis, be treated at par with persons recruited to the Corporation after a selection process conducted by the Public Service Commission. The contention based on Ext.P15 Government order is also meritless, since conversion of the post of abkari worker to UD W.P.(C) No.16709 of 2019 -11- Clerk and LD Clerk has been effected, considering the abkari workers as a vanishing category. Such conversion does not entitle the abkari workers to claim appointment as LD Clerk in the 10% quota reserved for regular employees. 6. Indisputably, abkari workers were initially engaged in the Corporation from among employees of private retail foreign liquor outlets, that were closed down when those shops were taken over by the Corporation. Later, another class of abkari workers were engaged from among the dependents of abkari workers who had perished on the arrack shops being suddenly closed down pursuant to the Government's decision to ban sale of arrack in the State. The third category consists of abkari workers engaged on daily wage basis. It is also not in dispute that, till Ext.P15, the post of abkari workers was not included among sanctioned posts. Ext.P15 being subsequent to Ext.P1 notification, the ## W.P.(C) No.16709 of 2019 -12- petitioners cannot claim the benefit of the subsequent Government order. As rightly pointed out by the Standing Counsel, in Ext.P9 it is specifically stated that the three categories of abkari workers are not included in any of the sanctioned posts in the Corporation. Merely for the reason that pay scale and other service benefits were sanctioned for abkari workers, they cannot claim to be regular employees. Therefore, even in the absence of the objectionable note in Ext.P1, the petitioners will not be entitled for the 10% reservation set apart for lower grade employees of the Corporation. For the aforementioned reasons, the writ petition is dismissed. Sd/- **V.G.ARUN** JUDGE Scl/ W.P.(C) No.16709 of 2019 -13- ## **APPENDIX OF WP(C) 16709/2019** |PETITIONER EXHIBITS|PETITIONER EXHIBITS| |---|---| |EXHIBIT P1|TRUE COPY OF THE NOTIFICATION ISSUED| ||BY THE KERALA PUBLIC SERVICE| ||COMMISSION PUBLISHED IN GAZETTE DATED| ||26.11.2015, AS CATEGORY NO.416/2015| |EXHIBIT P2|TRUE COPY OF THE RELEVANT PAGES OF THE| ||RECRUITMENT RULE TO THE POST OF| ||L.D.CLERK UNDER THE 2ND RESPONDENT| |EXHIBIT P3|TRUE COPY OF HE PROFILE OF THE 1ST| ||PETITIONER CONTAINING THE APPLICATION| ||DETAILS, DOWNLOADED FROM THE WEBSITE| ||OF THE 1ST RESPONDENT| |EXHIBIT P4|TRUE COPY OF THE ADMISSION TICKETS| ||ISSUED BY THE 1ST RESPONDENT TO THE| ||1ST PETITIONER| |EXHIBIT P5|TRUE COPY OF THE PROBABILITY LIST,| ||30.01.2019 PUBLISHED BY THE 1ST| ||RESPONDENT| |EXHIBIT P6|TRUE COPY OF THE SERVICE CERTIFICATE| ||ISSUED BY THE 2ND RESPONDENT TO THE| ||1ST PETITIONER| |EXHIBIT P7|TRUE COPY OF THE RANKED LIST| ||NO.330/2019/ERIVB,OF CAT NO.416/2015| ||PUBLISHED BY THE 1ST RESPONDENT| |EXHIBIT P8|TRUE COPY OF THE REJECTION OF THE| ||CANDIDATURE OF THE 1ST PETITIONER BY| ||THE 1ST RESPONDENT| |EXHIBIT P9|TRUE COPY OF G.O(MS) NO.36/2011/TD| ||DATED 24.02.2011| |EXHIBIT P10|TRUE COPY OF THE ORDER BEARING G.O.| ||(MS) NO.32/2019/TAXES, DATED| ||28/6/2019, ISSUED BY THE THE 3RD| ||RESPONDENT.| |Exhibit P11|TRUE COPY OF THE NOTIFICATION| ||PUBLISHED BY THE 1ST RESPONDENT IN THE| ||GAZETTE DATED 30/11/2021 AS CATEGORY| ||NO. 559/2021| W.P.(C) No.16709 of 2019 ## -14- Exhibit P12 TRUE COPY OF THE SCREEN SHOT FROM THE OFFICIAL WEBSITE OF THE 1ST RESPONDENT Exhibit P13 TRUE COPY OF THE SCREEN SHOT FROM THE OFFICIAL WEBSITE OF THE 1ST RESPONDENT Exhibit-P14 TRUE COPY OF THE SERVICE CERTIFICATE DATED 18.12.2021, IN THE NAME OF PLEMIN P.B, ISSUED BY THE 2ND RESPONDENT. Exhibit-P15 TRUE COPY OF G.O.(MS) No.13/2021/T.D. Dated 12.02.2021, ALONG WITH ANNEXURE -I