W.A Nos.268 & 469 of 2021

W.A Nos.268 & 469 of 2021 1 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **&** **THE HONOURABLE MR.JUSTICE K. BABU** **TUESDAY, THE 23RD DAY OF MARCH 2021 / 2ND CHAITHRA, 1943** ## **WA.No.268 OF 2021** **AGAINST THE JUDGMENT IN WP(C) 25370/2017(U) OF HIGH COURT OF KERALA** ## **APPELLANT/2nd RESPONDENT:** **KERALA STATE COUNCIL FOR SCIENCE TECHNOLOGY AND ENVIRONMENT REPRESENTED BY ITS PRESIDENT, SASTHRA BHAVAN, PATTOM PALACE P.O., THIRUVANANTHAPURAM-695004.** **BY ADV. SRI.P.C.SASIDHARAN** ## **RESPONDENTS/PETITIONER AND RESPONDENTS 1 AND 3:** |**1**|**SAIJA RANI P.**| |---|---| ||**AGED 41 YEARS**| ||**WIFE OF GIRISH KUMAR T.P., PROJECT ASSOCIATE**| ||**(STATISTICS), NATIONAL TRANSPORTATION PLANNING AND**| ||**RESEARCH CENTRE, SASTHRA BHAVAN, PATTOM PALACE**| ||**P.O., THIRUVANANTHAPURAM-695004, RESIDING AT**| ||**PRASANTHI, TC 55/1100(1), ANRA 29, ANAND NAGAR,**| ||**NEERAMANKARA, KAIMANAM P.O.,**| ||**THIRUVANANTHAPURAM-695040.**| |**2**|**STATE OF KERALA,**| ||**REPRESENTED BY ITS SECRETARY, SCIENCE AND**| ||**TECHNOLOGY DEPARTMENT, GOVERNMENT SECRETARIAT,**| ||**THIRUVANANTHAPURAM-695001.**| W.A Nos.268 & 469 of 2021 2 **3 NATIONAL TRANSPORTATION PLANNING AND RESEARCH CENTRE, REPRESENTED BY ITS DIRECTOR, SASTHRA BHAVAN, PATTOM PALACE P.O., THIRUVANANTHAPURAM-695004.** **R1 BY ADV. SRI.B.ASHOK SHENOY R1 BY ADV. SRI.K.V.GEORGE R1 BY ADV. SRI.P.N.RAJAGOPALAN NAIR R1 BY ADV. SRI.P.S.GIREESH R1 BY ADV. SRI.RIYAL DEVASSY** **R3 BY ADV. SRI.B.S.SYAMANTHAK, STANDING COUNSEL** **SRI.B.UNNIKRISHNA KAIMAL, GOVT.PLEADER** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 23.3.2021 ALONG WITH WA.469/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **&** **THE HONOURABLE MR.JUSTICE K. BABU** **TUESDAY, THE 23RD DAY OF MARCH 2021 / 2ND CHAITHRA, 1943** **WA.No.469 OF 2021** **AGAINST THE JUDGMENT IN WP(C) 25370/2017(U) OF HIGH COURT OF KERALA** ## **APPELLANT/3RD RESPONDENT:** **NATIONAL TRANSPORTATION PLANNING AND RESEARCH CENTRE (NATPAC) REPRESENTED BY ITS DIRECTOR,SASTRA BHAVAN, PATTOM P.O.,THIRUVANANTHAPURAM, PIN-695 004.** ## **PRESENT ADDRESS** **NATIONAL TRANSPORATATION PLANNING AND RESEARCH CENTRE(NATPAC), K,KARUNAKARAN TRANSPARK, AKKULAM, THURUVIKKAL P.O., THIRUVANANTHAPURAM-695 011.** **BY ADVS. SMT.BINDUMOL JOSEPH SRI.B.S.SYAMANTHAK** W.A Nos.268 & 469 of 2021 4 ## **RESPONDENT/PETITIONER AND RESPONDENTS 1 AND 2:** |**1**|**SAIJA RANI P.,**| |---|---| ||**AGED 45 YEARS, WIFE OF GIRISH KUMAR T.P,**| ||**PROJECTASSOCIATE (STATISTICS),**| ||**NATIONAL TRANSPORTATION PLANNING AND RESEARCH**| ||**CENTRE, SASTHRA BHAVAN, PATTOM PALACE P.O.,**| ||**THIRUVANANTHAPURAM-695 004.**| ||**RESIDING AT PRASANTHI, TC 55/1100(1),**| ||**ANRA 29, ANAND NAGAR, NEERAMANKARA,**| ||**KAIMANAM P.O., THIRUVANANTHAPURAM-695 040.**| |**2**|**STATE OF KERALA,**| ||**REPRESENTED BY ITS SECRETARY,**| ||**SCIENCE AND TECHNOLOGY DEPARTMENT,**| ||**GOVERNMENT SECRETARIAT,**| ||**THIRUVANANTHAPURAM-695 001.**| |**3**|**KERALA STATE COUNCIL FOR SCIENCE,.**| ||**TECHNOLOGY AND ENVIRONMENT,**| ||**REPRESENTED BY ITS PRESIDENT, SASTRA BHAVAN,**| ||**PATTOM PALACE P.O..**| ||**THIRUVANANTHAPURAM-695 004.**| ||**R1 BY ADV. SRI.B.ASHOK SHENOY**| ||**R1 BY ADV. SRI.K.V.GEORGE**| ||**R1 BY ADV. SRI.P.N.RAJAGOPALAN NAIR**| ||**R1 BY ADV. SRI.P.S.GIREESH**| ||**R1 BY ADV. SRI.RIYAL DEVASSY**| ||**R2 BY SRI.B.UNNIKRISHNA KAIMAL -GOVT.PLEADER**| ||**R3 BY SRI.P.C.SASIDHARAN**| **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 23-03-2021, ALONG WITH WA.268/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.A Nos.268 & 469 of 2021 5 ## **ALEXANDER THOMAS & K.BABU, JJ.** **============================ W.A Nos.268 & 469 of 2021** _(arising out of the judgment dated 19.8.2020 in W.P(C) No.25370/2017)_ **============================** Dated this the 23[rd] day of March, 2021 ## **J U D G M E N T** ## **Alexander Thomas, J** The Kerala State Council for Science, Technology and Environment (KSCSTE) and the National Transportation Planning and Research Centre (NATPAC) were arrayed as respondents 2 and 3 respectively in W.P© No.25370/2017 filed by the 1[st] respondent herein, have filed the present appeal under Section 5 of the Kerala High Court Act, so as to impugn the judgment dated 19.8.2020 rendered by the learned Single Judge. 2. Heard Sri.P.C Sasidharan, the learned Standing Counsel for the KSCSTE, appearing for the appellant in W.A No.268/2021, who is also appearing for the 3[rd] respondent in W.A No.469/2021. Smt.Bindumol Joseph, the learned Standing Counsel for the NATPAC appearing for the appellant in W.A.No.469/2021, who is also arrayed W.A Nos.268 & 469 of 2021 6 as the 3[rd] respondent in W.A No.268/2021. Sri.Ashok B.Shenoy, the learned Counsel appearing for the 1[st] respondent in both these appeals (writ petitioner) and Sri.B.Unnikrishna Kaimal, the learned Government Pleader appearing for R2, State of Kerala in these cases. 3. The case of the writ petitioner was to the effect that while she has been working as a Project Associate in the NATPAC from the year 2009 onwards and her selection and appointment to the post was made after issuing employment notification published in the official gazette, inviting applications in the official website as also in various newspapers including The Hindu daily. The petitioner is a Post Graduate in Statistics and that she was duly included in the rank list and was selected and appointed as per Ext.P1 appointment letter dated 26.8.2009 issued by the NATPAC on contract basis for a period of one year or till the completion of the project, whichever is earlier. The petitioner’s service was continued without any renewal of agreement in the year 2011 and thereafter she has been continuing on execution of the agreements every year. Later, she came to know that similarly situated employees, one Sri.R.J.Sanjai and one Smt.Deepa Radhakrishnan were regularised in the post of Technical Officer Grade I, by the orders issued by the official respondents, as can be seen from W.A Nos.268 & 469 of 2021 7 Ext.P3 order dated 23.11.2013 issued in favour of the former candidate and the proceedings issued with effect from 16.4.2014 in favour of latter candidate. Thereupon, the petitioner had filed Ext.P2 representation dated 18.7.2011 before the competent authority of the State Government requesting that her service may also be regularised as has been done in the similarly situated employees like Shri.R.J.Sanjai and Smt.Deepa Radhakrishnan etc. Later the official respondents in the writ petition had issued Ext.P8 notification dated 20/7/2017 inviting applications for appointments to various posts including the post of “Project Associate”. At that stage the 1[st] respondent herein had filed the instant writ petition with the following prayers: (See page Nos.31 and 32 of the paper book of this appeal) “a) Declare that petitioner is entitled to be absorbed in the permanent services of the 3[rd] respondent with effect from 26.8.2009 along with all benefits including pay and allowances: b) Issue a writ in the nature of mandamus or any other appropriate writ, order or direction commanding the respondents to absorb the petitioner in the permanent services of 3[rd] respondent with effect from 26.8.2009, with all benefits including pay and allowances and disburse to the petitioner, pay and allowances accordingly along with arrears thereunder within a reasonable time limit as this Hon’ble Court may deem fit to fix in the facts and circumstances of the case; c) Issue a writ in the nature of mandamus or any other appropriate writ, order or direction forbearing the respondents from terminating the petitioner from the service of 3[rd] respondent : and d) Grant such other and further reliefs as are deemed just and necessary in the facts and circumstances of the case including the costs of this proceedings; “ 4. The various contentions raised by the petitioner in the writ W.A Nos.268 & 469 of 2021 8 petition to oppose the said prayers in the writ petition and it has been urged that the prayers of the writ petitioner will amounts to violation of the legal principles laid down by the Apex Court in **State of Karnataka v. Umadevi (3) [2006(4) SCC 1]** and **Renu and others V. District Sessions Judge Tishazari Court Delhi and another [2014(14) SCC 50]** . It is also averred by the official respondents in the writ petition that the Sri.R.J.Sanjal was regularised as per the directions from KSCSTE and the State Government ratified the same, stating that it shall not be treated as a precedent. Further it is also admitted by the respondents in the writ petition that the service of Smt.Deepa Radhakrishnan was also regularised in the same manner. It is stated that the plea of the petitioner for regularisation made before the Government has rejected as per Ext.P3(a) date 13.9.2018 in the light of the legal principles laid down by the Apex Court in **Umadevi** ’s case supra. The said order of rejection has also been challenged. The learned Single Judge after consideration of the rival pleas of the official respondents noted that the Government has stated in Ext.P5 that the writ petitioner does not have the qualification for appointment in the Scientist category but that there is a vacancy in the post of Technical Officer and the selection and appointment to W.A Nos.268 & 469 of 2021 9 such post is to be made through Employment Exchange and that the petitioner is already over aged etc. The respondents in the writ petition has also taken a case that the appointment of the petitioner was purely on the basis of contractual engagement and that the project in which she was engaged has ceased its function. 5. The learned Single Judge after taking into consideration that the writ petitioner was selected and appointed in pursuance of the notification published in leading news papers as well as in the official web-site and after finding that the petitioner is fully qualified to hold the post of Project Associate and also noting that the above said employees have already been regularised by the respondents in the writ petition, hence it is ordered that it is just and proper to allow the petitioner to continue in service as long as a post for which she is qualified. It was also specifically directed by the learned Single Judge in para 7 on page 7 of the impugned judgment that in case the official respondents in the writ petition are taking steps for absorbing/ appointing candidate as Technical Officers, then the case of the petitioner to be considered as she is having the qualification for the same irrespective of her age. In the light of these aspects the learned Single Judge disposed of the original petition with a direction to the W.A Nos.268 & 469 of 2021 10 respondents in the writ petition to allow the petitioner to continue in service as long as a post for which she is qualified is available and to consider her case for appointment under the 3[rd] respondent for which she is qualified, granting her age relaxation to the extent of her service under the respondents. 6. It is with these orders and directions issued by the learned Single Judge in the above judgment that is under challenge in the appeals filed by the KSCSTE and the NATPAC. 7. After hearing both sides, it is seen that the specific case of the appellants is that the service of the petitioner as a Project Associate has been terminated as the project itself has been duly completed. There is no serious dispute regarding the said factual position. Hence, it is seen that the writ petitioner was not in the service of the NATPAC either as a contract employee or otherwise at the time of rendering of the impugned judgment by the learned Single Judge in the writ petition on 19.8.2020. Hence, we feel that the direction issued by the learned Single Judge in the last para of the impugned judgment given on page Nos.7 and 8 thereof to the effect that the respondents to allow the petitioner to continue in service as long as a post for which she is qualified is available and to consider her case for appointment etc. will W.A Nos.268 & 469 of 2021 11 create unnecessary problems to the appellants. Since the petitioner indisputably was not holding any post or was continuing in service as a Project Associate or otherwise at the time of rendering of the impugned judgment on 19.8.2020, the directions in the said judgment that the respondents to allow her to continue in service as long as a post for which she is qualified is available etc, will stand vacated. 8. Sri.P.C.Sasidhran, the learned Standing Counsel appearing for the KSCSTE - appellant in the W.A. No.268/2021 has also stated that some of the posts under the NATPAC may be within the purview of the Kerala Public Service Commission and if that be so, the matter in relation to the selection and appointment including qualifications, age relaxation etc. would be strictly in terms and conditions in the selection notification to be issued by the Kerala Public Service Commission in that regard and that in case the petitioner is fully qualified and eligible to apply for any such selection, then the question of age relaxation would be regulated by the rules and norms governed by such selection process. 9. After hearing both sides, it is made clear that in case any of the post under the NATPAC is regularly filled up through the selection process to be conducted by the Kerala Public Service Commission and W.A Nos.268 & 469 of 2021 12 in case the petitioner is qualified to apply the said selection process, the issues regarding the selection, including the question of age relaxation would be regulated by the terms and conditions of the said selection process issued in this regard by the Kerala Public Service Commission. 10. However, Sri.Ashok B.Shenoy, the learned counsel for the writ petitioner would point out that very many posts like the Technical Officer, Project Associate etc. for which the petitioner is fully qualified is to be fill up by the NATPAC and that there may not be any legal requirements for such selection process is to be regulated by the Kerala Public Service Commission. We make it clear that, in case the NATPAC is making any appointment either regular or temporary to any post or in the project like Project Associate for which the petitioner is fully qualified, then the director of NATPAC will intimate the petitioner about such selection process and should consider the writ petitioner for such selection and appointment to any such post for which the petitioner is fully qualified and the selection which is to be done by the NATPAC and in such a case, the direction given by the learned Single Judge to grant age relaxation of the petitioner to the extent of her service under the respondents in the writ petition should be strictly adhered to by the appellants/official respondents in the writ petition. W.A Nos.268 & 469 of 2021 13 11. Sri.Ashok B.Shenoy, the learned counsel for the writ petitioner in the writ petition would point out that many times, the vacancies in the post of Project Associate are filled up without any wide publicity and that therefore necessary precautionary directions may be issued by this Court to ensure that the case of the petitioner is also duly considered for any such selection . We make it clear that in case NATPAC is making any selection to any post or any project for which the petitioner is fully qualified, as ordered hereinabove, the NATPAC authorities will intimate the same to the petitioner, so that she can also submit her application in that regard and her case may be considered subject to the qualifications etc. and the age relaxation should be granted in the manner as directed hereinabove. The directions and orders rendered by the learned Single Judge in the impugned judgment will stand modified to the limited extent as above. With these directions these writ appeals will stand finally disposed of. Sd/- ## **ALEXANDER THOMAS, JUDGE** ## **Sd/-** **K.BABU, JUDGE** ab