Surya K.B. et al. v. High Court of Kerala represented by Registrar General

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN`** ``` TUESDAY, THE 24[TH] DAY OF JANUARY 2023 / 4TH MAGHA, 1944 WP(C) NO. 31621 OF 2022 ``` ## **`PETITIONERS:`** - **`1 SURYA K.B AGED 38 YEARS COMPUTER ASSISTANT GRADE-II, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682 031.`** - **`2 SINIMOL R., COMPUTER ASSISTANT GRADE-II, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682 031.`** - **`3 GINU ELIZABETH A.V., COMPUTER ASSISTANT GRADE-II, HIGH COURT OF KERALA,ERNAKULAM, KOCHI-682 031.`** - **`4 VARGHESE T.P., COMPUTER ASSISTANT GRADE-II, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682 031. BY ADVS. V.VARGHESE L.ANNAPOORNA VISHNU V.K. ABHIRAMI K. UDAY`** ## **`RESPONDENTS:`** - **`1 HIGH COURT OF KERALA REPRESENTED BY ITS REGISTRAR GENERAL, HIGH COURT CAMPUS, ERNAKULAM, KOCHI-682 031.`** - **`2 REGISTRAR GENERAL, HIGH COURT OF KERALA, HIGH COURT CAMPUS, ERNAKULAM, KOCHI-682 031. BY ADV ELVIN PETER P.J.`** ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON ``` ``` 24.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 31621 OF 2022 ``` ``` 2 ``` ## **`JUDGMENT`** ## **Dated this the 24[th] day of January, 2023** This writ petition is filed seeking the following prayers: _“(i) call for the records leading to Exts.P7 and P9 to P12 and quash them by the issuance of a writ of certiorari or any other appropriate writ, order or direction._ _(ii) declare that the appointment of the petitioners as Computer Assistants Grade-II as per Ext.P5 is a regular one, under appointment by transfer method and that they are entitled to all service and monetary benefits arising from such regular appointment w.e.f. 04.08.2020._ _(iii) issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents to treat the appointment of the petitioners in the post of Computer Assistant Grade-II w.e.f. 04.08.2020 as regular for all service and monetary benefits and accordingly grant them all such benefits including seniority w.e.f. 04.08.2020, declaration of probation w.e.f. 03.08.2021 and annual increments that have fallen due with reference to the pay scale fixed in their favour on their appointment as Computer Assistant Grade-II w.e.f. 04.08.2020”_ 2. Heard the learned counsel for the petitioners and the learned counsel appearing for the respondents. 3. It is submitted by the learned counsel for the petitioners that the petitioners have been working as Computer Assistants Grade-II under the respondents since 04.08.2020. However, their services are not ``` WP(C) NO. 31621 OF 2022 ``` ``` 3 ``` regularized and probation is not declared on the ground that Ext.P2 notification as well as the order of appointment stated that their appointment is temporary. 4. The learned counsel for the petitioners submits that the petitioners entered service as Office Attendants on 14.03.2005, 18.06.2009, 26.11.2010 and 15.02.2012 respectively. After completing probation, they submitted their willingness for participating in the selection for the post of Computer Assistant Grade-II by transfer from among approved probationers working in categories having scales of pay equal to or lower than that of Computer Assistant Grade-II and possessing qualifications mentioned therein. Ext.P1 notification dated 17.07.2019 calling for willingness from qualified candidates for appointment by transfer was the initial notification pursuant to which the petitioners submitted their willingness. While so, Ext.P3 proceedings had been issued by the 2[nd] respondent stating that appointment by direct recruitment and appointment by transfer to the post of Computer Assistant Grade-II shall be in the ratio of 1:1 including to the existing vacancies. Thereafter, Ext.P2 notification was issued on 18.01.2020 ``` WP(C) NO. 31621 OF 2022 ``` ``` 4 ``` proposing to initiate a selection for appointment to the post of Computer Assistant Grade-II through the methods of direct recruitment and appointment by transfer in the ratio 1:1. It is stated that there are 8 existing vacancies and the recruitment shall be done in respect of vacancies arising during the currency of the rank list as well. It is further stated in Ext.P2 that 4 out of the 8 existing vacancies are proposed to be filled up on a temporary basis as provided under Rule 21 of the Kerala High Court Service Rules and willingness for appointment under Rule 21 for 4 posts is called for from approved probationers. It is further stated in the notification that those members who had already submitted willingness pursuant to Ext.P1 notification need not submit their willingness afresh. 5. The selection was conducted as provided in Ext.P2 and Ext.P4 ranked list was prepared. In the said ranked list, only the names of the petitioners were included. Ext.P4 proceedings dated 04.08.2020 specifically refers to a panel for appointment to the category of Computer Assistant Grade-II. It is submitted that on the basis of their inclusion in Ext.P4, they were appointed by Ext.P5 proceedings on the ``` WP(C) NO. 31621 OF 2022 ``` ``` 5 ``` same day. However, in Ext.P5, it was again stated that the appointments of the petitioners would be on a temporary basis. However, a reading of Ext.P5 would show that the petitioners were appointed against specific vacancies, that is, the date of arising of vacancies were also mentioned in the appointment order. The 1[st] petitioner was appointed against a vacancy which arose on 26.03.2019, the 2[nd] petitioner against a vacancy which arose on 02.04.2019, the 3[rd] petitioner against a vacancy which arose on 01.05.2019 and the 4[th] petitioner against a vacancy which arose on 08.08.2019. It is submitted that all the petitioners were appointed against regular vacancies existing even before the issuance of Ext.P3 proceedings by the 2[nd] respondent and that since there were admittedly 8 existing vacancies as on the date of Ext.P2, the petitioners’ appointments were liable to be treated as regular appointments by transfer to the post of Computer Assistant Grade-II. However, on the ground that their appointments were stated to be temporary appointments, their probation was not declared and the benefits of regularization and increments were not granted to them. 6. The petitioners submitted Ext.P6 representation which was ``` WP(C) NO. 31621 OF 2022 ``` ``` 6 ``` rejected by Ext.P7 order. Thereafter, even though Ext.P8 appeal was submitted by the 4[th] petitioner, the same was also rejected as not being maintainable. It is submitted by the learned counsel for the petitioners that thereafter, on 03.12.2020, Ext.13 notification has been issued for filling up 7 vacancies of Computer Assistant Grade-II by direct recruitment and that the resultant selection is ongoing. It is contended that in case the decision of the respondents to treat the petitioners’ appointments as temporary is not corrected, the petitioners will have to take their places in seniority below the directly recruited Computer Assistants Grade-II which would result in injustice and irreparable injury to the petitioners. It is in these circumstances that the prayers are sought. 7. The learned counsel for the petitioners relies on the provisions of the Kerala High Court Service Rules to contend that the post of Computer Assistant Grade-II falls in Category 4 in Sub Division 3 of Division II of such Service Rules and the method of appointment prescribed in the Rules is appointment by transfer, recruitment by transfer or direct recruitment or recruitment under Rule 11(2). It is ``` WP(C) NO. 31621 OF 2022 ``` ``` 7 ``` further submitted that there is no quota provided in the Rules and that the petitioners were admittedly appointed against existing regular vacancies of Computer Assistant Grade-II which were already in existence as on the date of Ext.P3. The learned counsel for the petitioners would contend that Ext.P3 would have no application to the petitioners and even if it is made applicable, the petitioners who have been appointed against 4 of the existing 8 vacancies would be entitled to regular appointment by transfer and that there is absolutely no justification for treating the appointment of the petitioners as temporary or provisional. 8. Relying on the provisions of Rule 39 of the Rules, it is contended that the only manner in which the High Court Service Rules can be amended is by prior publication and after giving an opportunity for filing representations to the members of the Service. It is further contended that Rule 21 of the Rules provides for the contingencies in which a temporary appointment can be made and that none of such contingencies exist in the present case. Relying on the decision of a Division Bench of this Court in **Sreekala v. Superintendent, Oldage** ``` WP(C) NO. 31621 OF 2022 ``` ``` 8 ``` **Home** [2008 (2) KLT 13], it is contended that where appointment by transfer is one of methods of appointment, the question whether the incumbent was appointed on a regular basis or provisionally will have to be decided on the facts of the case. It is stated that even if the order of appointment says that it is temporary or provisional, in case the appointment is against a regular vacancy and it is made through one of the regular methods prescribed for such appointment, then the appointment has to be treated as a regular appointment. Relying on a decision of the Apex Court in **A.N.Pathak and others v. Secretary to the Government, Ministry of Defence and another** [1987 (Supp) SCC 763], it is contended that where rules enable the authorities to fill up vacancies by direct recruitment and by transfer, the persons who have been appointed by transfer or by promotion cannot be denied their due benefits only because there is delay in filling up the appointments by direct recruitment. 9. A counter affidavit has been placed on record by the respondents admitting the essential facts as pleaded by the petitioners. However, it is admitted that the method of appointment prescribed by the Rules for ``` WP(C) NO. 31621 OF 2022 ``` ``` 9 ``` appointment to the post of Computer Assistant Grade-II is appointment by transfer, recruitment by transfer or direct recruitment or recruitment under Rule 11(2). It is stated that Ext.P1 notification was issued for filling up of 3 vacancies of Computer Assistant Grade-II by transfer. However, after the issuance of Ext.P1, a meeting of the Committee for framing of the High Court Rules and High Court Service Rules was held on 29.07.2019 and it resolved to recommend to the Honourable the Chief Justice to resort to direct recruitment and by transfer appointment to entry posts in the High Court service in the ratio 4:1 including the existing vacancies. However, when the matter was placed before the acting Chief Justice for approval, it was felt that a ratio of 4:1 between direct recruits and by transfer would not be advisable and the ratio of 1:1 was found to be more desirable. Thereafter, Ext.P3 was issued clarifying that appointment by direct recruitment and appointment by transfer to the post of Computer Assistant Grade-II shall be made in the ratio 1:1 including the existing vacancies. It is stated that it was thereafter that Ext.P2 notification had been issued calling for fresh willingness from eligible members of the High Court service for ``` WP(C) NO. 31621 OF 2022 ``` ``` 10 ``` appointment against 4 vacancies out of the 8 vacancies on a temporary basis. It is therefore contended that the petitioners had participated in the selection specifically for temporary appointment in 4 vacancies out of the 8 existing vacancies and their appointments having been made on a temporary basis, they cannot claim regularization in the posts to which they were appointed or declaration of their probation. The provisions of Rule 21 are also referred to in the counter affidavit and it is contended that since temporary appointments can be made by the Honourable the Chief Justice in the exigency of service to any category, the petitioners cannot claim regularization and cannot be regarded as a probationer in terms of Rule 21(b). 10. I have considered the contentions advanced on both sides. It is clear that the petitioners were approved probationers in the post of Office Attendants and that they were fully qualified and eligible for appointment to the post of Computer Assistant Grade-II by transfer. They had submitted their willingness in pursuance to Ext.P1 which called for willingness for appointment by transfer as Computer Assistant Grade-II. Thereafter, it appears that Ext.P3 was issued by the ``` WP(C) NO. 31621 OF 2022 ``` ``` 11 ``` 2[nd] respondent seeking to introduce a ratio of 1:1 for appointment by direct recruitment and appointment by transfer including the existing vacancies. A reading of Ext.P2 would show that there were admittedly 8 existing vacancies as on the date of Ext.P2. The petitioners who had also submitted their willingness pursuant to Ext.P1 participated in the selection process pursuant to Ext.P2 and were included in the ranked list prepared as Ext.P4 and appointed as Computer Assistant Grade-II. Ext.P5 would show that their appointments were stated to be on a temporary basis. However, appointments were admittedly made against vacancies which were in existence as on the date of Ext.P2 notification. 11. Rule 21 provides for temporary appointments to be made in the situations specified therein, that is, where there would be undue delay or administrative inconvenience in appointing a person who is qualified or entitled to such appointment or where a duly qualified person is not available. It is clear that in the instance case, the petitioners are fully qualified for appointment by transfer to the post of Computer Assistant Grade-II. The method of appointment to the post, according to the Rules, specifically includes appointment by transfer also. Even if ``` WP(C) NO. 31621 OF 2022 ``` ``` 12 ``` Ext.P3 is accepted, the ratio prescribed for appointment by direct recruitment and appointment by transfer is 1:1. Even if that be so, admittedly, there were 8 vacancies available at least as on the date of Ext.P2 notification. If the ratio of 1:1 is applied without considering the contention of the petitioners that there is no such ratio in the Rules also, the petitioners, four in number, would be entitled and eligible for appointment to the post of Computer Assistant Grade-II by transfer. 12. In the facts and circumstances of the instant case, I notice that since the petitioners were duly qualified and have been appointed to the post of Computer Assistant Grade-II in 4 vacancies out of the 8 existing vacancies and since further vacancies are admittedly available for filling up by direct recruitment, there is absolutely no reason why the appointment of the petitioners as on 04.08.2020 should not be considered as regular and well within their quota. From a consideration of the contentions raised on either side, I am of the opinion that there is absolutely no justification for treating the appointment of the petitioners against the vacancies which were existing as on the date of Ext.P3 as temporary or denying them the benefits of regular ``` WP(C) NO. 31621 OF 2022 ``` ``` 13 ``` appointment by transfer, which is admittedly a prescribed method of appointment. The Apex Court has clearly held that a delay in making direct recruitment should not be a reason for denying the benefit of regular appointment to persons appointed by promotion or by transfer well within their quota. In the facts and circumstances of the instant case, I am of the opinion that the decision taken by the respondents to treat the appointment of the petitioners as Computer Assistant Grade-II within the by transfer quota as temporary or provisional is completely unsustainable. 13. In the above view of the matter, the writ petitioners are liable to succeed in the writ petition. This writ petition is, accordingly, allowed. The impugned orders are set aside. There will be a direction to the respondents to treat the appointments of the petitioners from 04.08.2020 as regular appointment by transfer and to grant them all consequential benefits including the declaration of probation from the eligible dates and fixation of pay and seniority. Appropriate steps shall be taken in the matter by the respondents within a period of three months from the date of receipt of a copy of this judgment. ``` WP(C) NO. 31621 OF 2022 ``` ``` 14 ``` This writ petition is ordered accordingly. ``` Sd/- ``` ## **`ANU SIVARAMAN`** ``` JUDGE ``` ``` NP ``` ``` WP(C) NO. 31621 OF 2022 ``` ``` 15 ``` ## **`APPENDIX OF WP(C) 31621/2022`** |**`PETITIONERS’ EXHIBITS`**|| |---|---| |**`Exhibit P1`**|**`TRUE COPY OF THE OFFICIAL MEMORANDUM`**| ||**`NO.A233066/2019 DATED 17.07.2019 ISSUED BY`**| ||**`THE HIGH COURT.`**| |**`Exhibit P2`**|**`TRUE COPY OF THE OFFICIAL MEMORANDUM`**| ||**`NO.A233066/2019 DATED 18.01.2020 ISSUED BY`**| ||**`THE HIGH COURT.`**| |**`Exhibit P3`**|**`TRUE COPY OF THE NOTICE NO.A6-14110/2018`**| ||**`DATED 17.10.2019 ISSUED BY THE HIGH COURT.`**| |**`Exhibit P4`**|**`TRUE COPY OF THE ORDER NO.A2-33066/2019 (1)`**| ||**`DATED 04.08.2020 OF THE ASSISTANT REGISTRAR`**| ||**`(HG) OF THE HIGH COURT.`**| |**`Exhibit P5`**|**`TRUE COPY OF THE ORDER NO.A2-33066/2019(2)`**| ||**`DATED 04.08.2020 OF THE ASSISTANT REGISTRAR`**| ||**`(HG) HIGH COURT.`**| |**`Exhibit P6`**|**`TRUE COPY OF THE REPRESENTATION DATED`**| ||**`20.06.2022 SUBMITTED BY THE PETITIONERS`**| ||**`BEFORE THE COMMITTEE FOR REDRESSAL OF`**| ||**`GRIEVANCES OF ADVOCATES' ASSOCIATION/HIGH`**| ||**`COURT ADVOCATES' CLERKS' ASSOCIATION/STAFF`**| ||**`MEMBERS OF THE HIGH COURT.`**| |**`Exhibit P7`**|**`TRUE COPY OF THE OFFICIAL MEMORANDUM`**| ||**`NO.A233066/2019 DATED 08.07.2022 OF THE`**| ||**`ASSISTANT REGISTRAR (HG) OF THE HIGH COURT.`**| |**`Exhibit P8`**|**`TRUE COPY OF THE APPEAL DATED 30.08.2022`**| ||**`FILED BY THE 4TH PETITIONER BEFORE THE`**| ||**`HON'BLE THE CHIEF JUSTICE.`**| |**`Exhibit P9`**|**`TRUE COPY OF THE OF OFFICIAL MEMORANDUM`**| ||**`NO.A233066/2019 (1) DATED 24.09.2022 OF THE`**| ||**`JOINT REGISTRAR OF THE HIGH COURT, ISSUED TO`**| ||**`THE 1ST PETITIONER.`**| |**`Exhibit P10`**|**`TRUE COPY OF THE OFFICIAL MEMORANDUM NO.A2-`**| ||**`33066/2019 (2) DATED 24.09.2022 OF THE JOINT`**| ||**`REGISTRAR OF THE HIGH COURT, ISSUED TO THE`**| ||**`2ND PETITIONER.`**| |**`Exhibit P11`**|**`TRUE COPY OF THE OFFICIAL MEMORANDUM NO.A2-`**| ||**`33066/2019 (3) DATED 24.09.2022 OF THE JOINT`**| ||**`REGISTRAR OF THE HIGH COURT, ISSUED TO THE`**| ||**`3RD PETITIONER.`**| |**`Exhibit P12`**|**`TRUE COPY OF THE OFFICIAL MEMORANDUM NO.A2-`**| ||**`33066/2019 (4) DATED 24.09.2022 OF THE JOINT`**| ||**`REGISTRAR OF THE HIGH COURT, ISSUED TO THE`**| ||**`4TH PETITIONER.`**| ``` 16 ``` ## **`WP(C) NO. 31621 OF 2022`** ``` Exhibit P13TRUE COPY OF THE NOTIFICATION NO.REC1- 59274/2020 DATED 03.12.2020 ISSUED BY THE HIGH COURT. ``` ``` RESPONDENTS’ EXHIBITS: NIL ```