Sunil A.R. v Transformers and Electricals Kerala Ltd. and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **WEDNESDAY, THE 16TH DAY OF AUGUST 2017/25TH SRAVANA, 1939** ## **WP(C).No.27116 of 2009 (H) --------------------------** **PETITIONER:** **----------SUNIL A.R., S/O.RAVI, ALANKASSERY (H), PIRAROOR P.O., KALADY, ERNAKULAM DISTRICT.** **BY ADV. SRI.WILSON URMESE RESPONDENTS:** - **------------** **1. M/S.TRANSFORMERS AND ELECTRICALS KERALA LTD., (A GOVERNMENT OF KERALA UNDERTAKING), ANGAMALY SOUTH P.O., REPRESENTED BY ITS MANAGING DIRECTOR.** **2. THE EMPLOYMENT OFFICER, TOWN EMPLOYMENT EXCHANGE, ALUVA-683101.** **3. THE PROJECT MANAGER, KITCO LTD., PB NO.1820, RAVIPURAM, M.G.ROAD, KOCHI-16.** **4. HARIPRASAD P., OPERATOR GRADE-III TRAINEE-FITTER, TRANSFORMERS AND ELECTRICALS KERALA LTD., ANGAMALY SOUTH P.O., PIN-683573. ADDL.RESPONDENTS 5 TO 7 IMPLEADED** **5. REGHUNADHAN ACHARI S., OPERATOR GRADE-III TRAINEE-FITTER, TRANSFORMERS AND ELECTRICALS KERALA LTD., ANGAMALY SOUTH P.O., PIN-683573.** **6. THE DISTRICT EMPLOYMENT OFFICER, ERNAKULAM-682030.** **7. THE DIRECTOR OF EMPLOYMENT, THIRUVANANTHAPURAM-695001.** **(ADDITIONAL RESPONDENTS 5 TO 7 IMPLEADED AS PER ORDER DATED 17.2.2010 IN I.A.NO.1980/2010.)** **R3 BY ADV. SRI.P.BENNY THOMAS R4-5 BY ADV. SRI.RAJESH NAIR R1 BY ADV. SRI.M.PATHROSE MATTHAI (SR.) R3 BY ADV. SRI.E.K.NANDAKUMAR R1 BY ADV. SMT.MARIAM MATHAI R3 BY ADV. SRI.K.JOHN MATHAI R2,6 & 7 BY GOVERNMENT PLEADER, SRI.RON BASTIAN R3 BY ADV. SRI.P.GOPINATH R1 BY ADV. SRI.SAJI VARGHESE** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16-08-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No.27116 of 2009 (H)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1 : TRUE COPY OF THE CASTE CERTIFICATE ISSUED BY THE TAHSILDAR, ALUVA.** **EXT.P2 : TRUE COPY OF THE NATIONAL TRADE CERTIFICATE ISSUED BY NATIONAL COUNCIL FOR VOCATIONAL TRAINING.** **EXT.P3 : TRUE COPY OF THE CALL LETTER ISSUED TO THE PETITIONER BY THE THIRD RESPONDENT. EXT.P4 : TRUE COPY OF THE INTIMATION LETTER DATED 16.3.2009 ISSUED BY THE INFORMATION OFFICER, TELK. EXT.P5 : TRUE COPY OF THE COVERING LETTER AND THE APPLICATION DATED 23.3.2009.** **EXT.P6 : TRUE COPY OF THE REPLY DATED 08.04.2009. EXT.P7 : TRUE COPY OF THE PETITION DATED 02.05.2009. EXT.P8 : TRUE COPY OF THE COVERING LETTER DATED 12.6.2009 ISSUED TO THE PETITIONER.** **EXT.P9 : TRUE COPY OF THE MARK LIST PREPARED BY THE FIRST RESPONDENT.** **EXT.P10: TRUE COPY OF THE RANK LIST PREPARED ON THE BASIS OF COMMUNAL RESERVATION RULES BY THE FIRST RESPONDENT.** **EXT.P11: TRUE COPY OF THE LIST OF PERSONS WHO JOINED DUTY AS OPERATOR TRAINEES.** **EXT.P12: TRUE COPY OF THE LETTER NO.C.3375/09 DATED 17.8.2009 ISSUED BY THE SECOND RESPONDENT.** **EXT.P13: TRUE COPY OF THE RELEVANT PAGES OF THE SENIORITY LIST OF FITTER TRADE (2008-2010) ISSUED BY THE SECOND RESPONDENT.** **EXT.P14: TRUE COPY OF THE PAPER PUBLICATION IN 'MALAYALA MANORAMA' DAILY DATED 12.08.2009.** ## **RESPONDENTS EXHIBITS:** **EXT.R1(A): TRUE COPY OF LETTER NO.C3/08/348 DATED 23.07.2008 SENT BY THE EMPLOYMENT EXCHANGE.** **EXT.R2(A): TRUE COPY OF THE REQUISITION FORWARDED BY THE DISTRICT EMPLOYMENT OFFICER, ERNAKULAM.** **EXT.R2(B): TRUE COPY OF THE LIST SPONSORED BY THIS EXCHANGE.** **EXT.R4(A): COPY OF THE APPOINTMENT ORDER DATED 02.03.2009 ISSUED TO THE 4TH RESPONDENT.** **EXT.R4(B): COPY OF THE APPOINTMENT ORDER DATED 02.03.2009 ISSUED TO THE 5TH RESPONDENT.** **EXT.R4(C): COPY OF THE PROMOTION ORDER DATED 01.07.2013.** **EXT.R4(D): COPY OF THE LETTER OF APPRECIATION ISSUED TO THE 4TH RESPONDENT.** ## **WP(C).No.27116 of 2009 (H)** **EXT.R4(E) : COPY OF THE ADMISSION TICKET ISSUED TO THE 4TH RESPONDENT BY THE PSC.** **EXT.R4(F) : COPY OF THE MINUTES DATED 15.10.2014 OF THE MEETING OF THE MANAGEMENT AND THE TRADE UNION LEADERS. EXT.R6(A) : COPY OF THE ABOVE ORDER DATED 21.12.1970. EXT.R6(B) : COPY OF THE ABOVE MINUTES 1/1985.** **/TRUE COPY/** **P.A.TO JUDGE** **ln** ## **A.MUHAMED MUSTAQUE, J.** _**********************************************************************_ W.P.(C) No.27116 of 2009 _**********************************************************************_ Dated this the 16[th] day of August, 2017 ## JUDGMENT The first respondent is the Kerala Government undertaking. 16 vacancies of Operator Grade-III arose in the first respondent company during the year 2008. The selection was conducted by the third respondent, KITCO, an independent agency. The selection process consisted of written test, trade test, psychometric test and interview. The recruitment has to be made following the reservation policy of the State as contemplated under the Kerala State Subordinate Service Rules, 1958 ( for short, the 'KSSR'). Ext.P9 is the rank list. The petitioner is a candidate belonged to reserved category, ETB(Other Backward Classes). As per Ext.P9 rank list, the petitioner is having 10[th] rank. The 12[th] rank holder, namely, the fourth respondent, Hariprasad P. is also belongs to ETB. As per the roster turn of ETB(turn 15), the fourth respondent was sponsored by the Employment Exchange. It is to be noted that the selected candidates' name will be forwarded to the District Employment Officer, who will prepare the rank list following the reservation policy in accordance with the KSSR. The Employment W.P.(C) No.27116 of 2009 2 Officer, accordingly, gave the list of 16 candidates following the reservation which comprised seven open candidates. Admittedly, the petitioner belongs to ETB. In the counter affidavit filed by the Employment Officer also stated that the petitioner belonged to ETB. Considering the superior rank, he ought to have been sponsored by the Employment Officer instead of Hariprasad. In this writ petition, the petitioner questions the selection and the appointment of Hariprasad in the reserved category of ETB. 2. The learned counsel for the fourth respondent submits that Hariprasad was continuing last eight years and he was promoted to an higher post. Therefore, interference at this distance of time would be too iniquitous. It is submitted that he is now crossed the age of 40 and there is no scope for any employment in the Public Sector or in the Government. He relied on the judgments of the Hon’ble Supreme Court in **H.C.Puttaswamy and Others v. The Hon'ble Chief Justice of Karnataka High Court, Bangalore and Others [(1991) 2 SCC 421]** and **Buddhi Nath Chaudhary and Others v. Abahi Kumar and Others** [(2001) 3 SCC 328] and submitted that if this Court propose to interfere with the appointment of the fourth respondent, W.P.(C) No.27116 of 2009 3 he should be accommodated with the first respondent on humanitarian ground. 3. The learned Government Pleader submits that the petitioner is an open candidate and therefore, the Employment Officer rightly sponsored the 4[th] respondent. It is to be noted that in the counter filed by the 6[th] respondent in paragraph-2, it is stated as follows: “It is submitted that, the petitioner Sri.Sunil A.R., S/o.Ravi, Alangassery House, Piraroor P.O., Kalady, Ernakulam District has registered with the Town Employment Exchange, Aluva bearing Reg.No.3967/1990. He was registered with effect from 18.7.1990. He has entered S.S.L.C., NTC qualifications and training certificates in pumpset repairing and Apprenticeship in TCC Ltd. His date of birth is 11.4.1971. He belongs to Hindu Ezhava Community. By virtue of his community he is eligible to be considered both against open quota vacancies and against those vacancies reserved for Ezhava/Thiyya/Billava candidates. W.P.(C) No.27116 of 2009 4 4. Therefore, it is quite clear that there is no dispute to the caste status of the petitioner. In that view of the matter, based on the higher rank of the petitioner comparing to the fourth respondent, Hariprased, the petitioner ought to have been sponsored by the Employment Officer. It is true, the fourth respondent is holding the post for more than eight years. However, that will not clothe his appointment as valid. Therefore, this Court is of the view that this writ petition has to be allowed. Accordingly, the appointment of the fourth respondent is interfered with. The petitioner shall be appointed in the place of the fourth respondent. However, in any vacancy arises in the first respondent company, certainly, the fourth respondent shall be accommodated. The judgments relied upon the fourth respondent cannot have any bearing in this matter as in those cases where there were no competing or rival claims. The court has to consider the law and uphold the law. In the light of the fact the fourth respondent could not have been sponsored overlooking the rank of the petitioner, this Court cannot hold otherwise. The first respondent is directed to issue appointment order to the petitioner replacing the fourth respondent. However, it is made clear that the W.P.(C) No.27116 of 2009 5 fourth respondent shall be considered for any future vacancy arises in the first respondent company irrespective of age bar and his part services shall be reckoned for all service benefits. If the fourth respondent is entitled for any benefits, certainly, that shall be given to him. It is made clear that in case the petitioner chooses to waive or relinquish his claim for the post, this judgment need not be complied by the first respondent. The writ petition is allowed. Sd/- **A.MUHAMED MUSTAQUE, JUDGE** ln