SREEKUMAR P.A. v. STATE OF KERALA & OTHERS

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **WEDNESDAY, THE 10TH DAY OF APRIL 2019 / 20TH CHAITHRA, 1941** **OP(KAT).No. 25 of 2019** **AGAINST THE ORDER IN OA 2106/2017 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM DATED 31-05-2018** ## **PETITIONER:** **SREEKUMAR P.A., AGED 27 YEARS S/O.AJITH KUMAR P.B., CLERK, OFFICE OF THE INSPECTOR GENERAL OF POLICE, KOCHI RANGE, ERNAKULAM-682031, RESIDING AT PATHIYAPARAMBIL HOUSE, KUNJITHAI P.O., N.PARUR, ERNAKULAM-683522, KERALA.** **BY ADVS. SRI.ELVIN PETER P.J. SRI.K.R.GANESH** ## **RESPONDENTS:** |**1**|**STATE OF KERALA,**| |---|---| ||**REPRESENTED BY THE SECRETARY TO GOVERNMENT,**| ||**DEPARTMENT OF HOME AFFAIRS, SECRETARIAT,**| ||**THIRUVANANTHAPURAM-695001, KERALA.**| |**2**|**STATE POLICE CHIEF,**| ||**THIRUVANANTHAPURAM-695001, KERALA.**| |**3**|**DISTRICT POLICE CHIEF,**| ||**ERNAKULAM-682001, KERALA.**| |**4**|**DISTRICT POLICE CHIEF,**| ||**KANNUR-670001, KERALA.**| |**5**|**NISHA RANI N.V.,**| ||**AGED 38 YEARS**| ||**W/O.B.S.UNNIKRISHNAN, RESIDING AT AMBJUJA NIVAS,**| ||**CHILAMBIL, SASTHAVATTOM P.O., PERUNGUZHI,**| **OP(KAT).No. 25 of 2019 2** ## **THIRUVANANTHAPURAM, KERALA-695305.** - **6 RENJU SARANG S., AGED 38 YEARS W/O.SANTHOSH KUMAR D., RESIDING AT EF-4/302, VRINDAVAN GARDENS, PATTOM PALACE ROAD P.O., THIRUVANANTHAPURAM, KERALA-695004.** - **7 SINI M.CHANDRAN, AGED 39 YEARS W/O.RAMESH C.B., RESIDING AT CHENTHURUTHIL HOUSE, ASHTAMICHIRA P.O., THRISSUR, KERALA-680731.** - **8 SHAMIL SALEEM, AGED 25 YEARS** **W/O.SAJEEB IBRAHIM, RESIDING AT AREEPURAM HOUSE, MOORKANAD P.O., THRISSUR-680711.** - **9 DIVYA P.G., AGED 35 YEARS D/O.P.R.GOPINATHAN NAIR, SREENIVAS, MARAMPILLY P.O., ALUVA-683105, KERALA.** - **10 SMITHA VIJAYAN, AGED 34 YEARS D/O.VIJAYAN NAIR, KRISHNAKRIPA, C.K.ROAD, MANJUMMAL, ERNAKULAM-683501, KERALA.** - **11 NISHA BALAKRISHNAN, AGED 34 YEARS** - **D/O.BALAKRISHNA PILLAI, USHUS (OZHUKKANVILAYIL), VADAKKUMBHAGAM, CHAVARA SOUTH P.O., PIN-691584, KERALA.** - **12 SURENDRAN T.S., AGED 43 YEARS** - **D/O.SOMAN, THANIKUNNEL HOUSE, THRIKKARIYOOR P.O., PANAMAKOVALA, PIN-686692.** BY G.P.SRI.ANTONY MUKKATH **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 26.2.2019, THE COURT ON 10.4.2019 PASSED THE FOLLOWING:** **OP(KAT).No. 25 of 2019 3** ## **JUDGMENT** ## **Arun, J.** The petitioners are the applicants in O.A(Ekm)No.2106 of 2017 filed before the Kerala Administrative Tribunal, which culminated in Ext P2 order of the Tribunal. O.A No.2106 of 2017 was taken up along with O.A.Nos.800 of 2018, 1133 of 2018 and 1272 of 2018. The petitioners herein, the applicants in O.A.No.2106 of 2017, are persons appointed under the compassionate employment scheme to supernumerary posts in the Police Department. The applicants in O.A.Nos.800, 1133 and 1278 of 2018 are candidates included in the rank list for the post of Lower Division Clerks in various departments, brought into force by the Public Service Commission w.e.f 31.3.2015. In O.A.No.2106 of 2017 the petitioners have sought for a declaration that they were eligible to be regularised in service with effect from their actual date of entry in service and for a direction to the respondents to regularise their services with effect from the respective date of their entry in service. The applicants in the three connected Original Applications had **OP(KAT).No. 25 of 2019 4** approached the Tribunal for a direction to the respondents to report the vacancies in the Police Department and for a consequential direction to the Public Service Commission to advice their names for appointment, based on their seniority in the rank list. The specific case of those applicants was that the Public Service Commission was not issuing advises against the vacancies reported from the Police Department due to the pendency of O.A.(Ekm) No.2106 of 2017. By the common order, which is impugned in this Original Petition, the Tribunal found that the supernumerary appointees could be regularised which arose during the relevant period and could not claim regularisation with effect from the date of their appointment against the supernumerary post. That, the vacancies available for regularisation of supernumerary hands shall be computed invoking the 5% ratio and that it shall be reckoned as to whether regularisation of supernumerary hands in any year from 2012 had exceeded the 5% ratio and if so, to carry out appropriate adjustment against the subsequent years, without affecting those who had already been regularised. With respect to the claim of the Original Applicants in the other cases, whose names had been included in the ranked list, the Public Service Commission was **OP(KAT).No. 25 of 2019 5** directed to take immediate step to advice candidates from the ranked list, provided the vacancies were reported before the expiry of the ranked list on 31.3.2018. It is therefore, clear that if any relief is granted to the petitioners herein, that would have an impact on the relief granted by the Tribunal to the applicants in the connected Original Applications. Therefore, the instant Original Petition challenging only the order in O.A.No.2106 of 2017 and that too without the applicants in the other Original Applications being on the party array, is not maintainable. 2. Even though we found the Original Petition to be not maintainable for the reason mentioned above, we thought it fit to consider as to whether there is any merit in the challenge against Ext P2 order of the Tribunal. The brief facts, which led to the filing of the Original Application are as follows: - The applicants, who are presently employed as Lower Division Clerk in the Police Department, were appointed under the Compassionate Employment Scheme formulated by the Government as per G.O(P) No.12/19/P & ARD dated 24.5.1999. In the absence of vacancies, appointments under the Compassionate Employment Scheme was not being affected to the Government departments, including the Police Department, **OP(KAT).No. 25 of 2019 6** though the appointments were duly sanctioned by the Government. To tide over the crisis, the Government, as per G.O(Ms) 174/2012/GAD dated 6.7.2012, created 549 supernumerary posts in various departments. Of the 549 supernumerary posts, 316 posts of Lower Division Clerks were created in the Police Department and the Government, as per Annexure-A1 order, accorded sanction for appointment of 305 candidates as Lower Division Clerks against the supernumerary posts. 137 of such appointees were later regularised on occurrence of regular vacancies. The applicants also claim regularisation contending that they were appointed under Article 69(c) of Chapter IV of the Kerala Financial Code by creating supernumerary posts and were therefore fully eligible for all rights and privileges of the regular appointees. By Annexure-A4 order the Government held that the applicants did not come within the purview of supernumerary posts as envisaged under Article 69(c) of Chapter IV of the Kerala Financial Code and that they could be regularised only on the date of occurrence of the vacancies to which they are entitled to under the 5% quota earmarked for compassionate appointment. The Original Application was there upon filed by the petitioners, being **OP(KAT).No. 25 of 2019 7** aggrieved by the non-consideration of their claim for regularisation. 3. Before the Tribunal it was contended that Ext A4 G.O was issued under the mistaken impression that 5% quota is fixed for appointment in the concerned department under Compassionate Employment Scheme, whereas there is no quota prescribed for appointment under the Compassionate Employment Scheme and therefore, the applicants had a right to be regularised on occurrence of vacancies without limiting their claim to 5%. Contention was also raised based on Article 69(c) of Chapter IV of Kerala Financial Code. By the impugned order the Tribunal found that Clause 34 of the Compassionate Employment Scheme provides for reporting of 5% of the vacancies in the categories mentioned therein to the General Administration Department for creating a common pool. That therefore, the vacancies reserved for compassionate employment is 5% of the vacancies which arise every year. The Tribunal referred to the decision of the Division Bench of this Court in **State of Kerala and others v. Krishnakumar P.G & others (2009(3) KLT 274)** wherein it was held that the petitioners therein, appointees to the post of Excise Preventive Officers, were entitled for regularisation against **OP(KAT).No. 25 of 2019 8** vacancies which arose in their quota and were not eligible for regularisation as and when vacancies arose. It was also held that Article 69, Volume 1 of the Kerala Financial Code did not entitle such persons, appointed against supernumerary posts, in excess of their ratio, to be regularised in service with effect from the date of their actual appointment. The Tribunal therefore held that the petitioners could therefore claim regularisation only against 5% of the vacancies which arise every year and that they could not claim regularisation with effect from the date of their appointment against the supernumerary post. 4. The right of the petitioners for compassionate appointment emanated from the Compassionate Employment Scheme formulated as per G.O(P) No.12/1999/P& ARD. Clauses 33 & 34 of the Scheme, which are relevant read as under:- 33.If none of the alternatives mentioned in paras 30, 31 or 32 above is possible for want of vacancies, such cases shall be referred to the General Administration (C.E.Cell) Department for allotment of vacancies. 34.For allotment of vacancies under para 33 above 5% vacancies in the categories of L.D.Clerk, L.D.Typist and Peon arising every year will be reported by all Heads of Departments/ Appointing Authorities to the General Administration (C.E.Cell) Department.” ## **OP(KAT).No. 25 of 2019 9** 5. A reading of the clauses makes it clear that 5% of the vacancies are to be set apart for appointment under the Compassionate Employment Scheme and the 5% vacancy should be reckoned taking note of the vacancies that arise every year in various departments. Such reckoning must be done based on the vacancies at the District level since appointments under the Compassionate Employment Scheme is limited to Clause III & IV Posts to which District wise recruitment is carried out. By Annexure-A1 order the Government granted sanction for appointing 305 candidates in the supernumerary posts created for effecting compassionate appointment. By Annexure-A2 order the State Police Chief effected such appointments making it clear that orders related to their regularisation of appointment/fixation of seniority will be issued in due course. Therefore, the right of the petitioners is traceable only to G.O(P) No.12/1999/P& ARD wherein it is specifically provided that, regularisation of the appointees would be against the earmarked quota of 5%. Therefore, the Tribunal had correctly held that the supernumerary appointees could be regularised only against 5% of the vacancies which arose every year from 2012 and that such appointees could not claim regularisation with effect from the date of their **OP(KAT).No. 25 of 2019 10** appointment against the supernumerary posts. The consequential directions issued by the Tribunal are also well in order. Therefore, we see no ground to interfere with the well-founded order of the Tribunal. Consequently, the Original Petition is dismissed. Sd/- ## **C.T. RAVIKUMAR, JUDGE** Sd/- **V.G. ARUN, JUDGE** cms **OP(KAT).No. 25 of 2019 11** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE O.A.NO.2106/2017 FILED BEFORE THE HON'BLE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM.** **EXHIBIT P2** **TRUE COPY OF THE ORDER DATED 29.6.2018 IN O.A.(EKM) NO.2106/2017 OF THE HON'BLE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM.** RESPONDENTS EXTS NIL /TRUE COPY/ P.S.TO JUDGE cms