Dismissed

Mathew T.V. v. State of Kerala & Others

Kerala HC23 May 2012WP(C)/29628/2011

Case brief

AI extract

What is this about?

The petitioner challenged a modified government order withdrawing a direction to revert five Riso Operators to Reprographic Assistants. The High Court dismissed the petition, holding that the Government correctly rectified an error in a prior order that missed prior statutory retrenchment approvals, an action justified under Article 226.

What did the court decide?

Petitioner's writ petition challenging the modified government order is dismissed without costs.

Mathew T.V. Vs State of Kerala & Others — Public Procurement and Tenders | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN

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WEDNESDAY, THE 23RD DAY OF MAY 2012/2ND JYAISHTA 1934

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WP(C).No. 29628 of 2011 (C)

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PETITIONER:

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MATHEW T.V., S/O.VARKEY, AGED 48 YEARS, THURUTHIYIL HOUSE, POOVATHODU P.O., BHARANANGANAM KOTTAYAM DISTRICT.

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BY ADVS.SRI.SHAJI P.CHALY

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SMT.S.K.SREEKALA

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RESPONDENTS:

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1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, HIGHER EDUCATION DEPARTMENT, SECRETARIAT THIRUVANANTHAPURAM - 695 001.

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2. THE MANAGING DIRECTOR, KERALA STATE AUDIO VISUAL & REPROGRAPHIC CENTER (PRESENTLY CENTRE FOR ADVANCED PRINTING AND TRAINING), WEST FORT, THIRUVANANTHAPURAM - 24.

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3. KERALA STATE AUDIO VISUAL & REPROGRAPHIC CENTER, (PRESENTLY CENTRE FOR ADVANCED PRINTING AND TRAINING), WEST FORT, THIRUVANANTHAPURAM - 24

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R1- BY GOVERNMENT PLEADER SRI. JOE KALLIATH R2 & R3 - BY ADVS. SRI. K. ANAND, SRI.B.S.KRISHNAN (SR.) SRI.K.ANAND,SC, C-APT

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23-05-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 29628 of 2011 (C)

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APPENDIX

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PETITIONER'S EXHIBITS:

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P1: TRUE COPY OF THE ORDER BEARING G.O.(RT) NO. 652/08/H.EDN DATED 21/04/2008.

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P2: JUDGMENT IN O.P NO. 5891/03 DATED 21/03/2007. P3: TRUE COPY OF THE APPENDIX XXXVIII ATTACHED ALONG WITH THE REPORT OF THE COMMITTEE.

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P4: TRUE COPY OF THE CATEGORY WISE SENIORITY LIST OF REPROGRAPHIC ASSISTANTS.

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P5: TRUE COPY OF THE TERMINATION LETTER ISSUED BY THE 2ND RESPONDENT P6: TRUE COPY OF THE ORDER PASSED BY THIS HONOURABLE HIGH COURT DATED 07-06-2011.

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P7: TRUE COPY OF THE MODIFIED ORDER DATED 05-07-2011 P8: TRUE COPY OF THE ORDER DATED 28-9-2011 P9: TRUE COPY OF SERVICE RULES OF THE 3RD RESPONDENT

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RESPONDENT'S EXHIBITS:

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R2(a): TRUE COPY OF GOVERNMENT ORDER DATED 30.5.2002.

//True Copy//

PA to Judge

Scl.

P.N.RAVINDRAN , J.

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W.P.(C) No.29628 OF 2011

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Dated this the 23^rd day of May, 2012

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J U D G M E N T

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The petitioner who had formerly worked as Reprographic Assistant in the Kerala State Audio Visual & Reprographic Center (hereinafter referred to as 'the Centre' for short) has filed this writ petition challenging Ext.P7 Government order whereby the Government modified Ext.P1 order passed pursuant to the directions issued by this Court in Ext.P2 judgment in O.P. No.5891 of 2003 filed by the petitioner and two other former employees of the Centre. The brief facts of the case are as follows:

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The Centre, an autonomous body under the Education Department of the Government of Kerala, was established pursuant to GO(MS) No.73/92/H.Edn. dt. 28.4.1992. Though initially the Centre was functioning satisfactorily, later it ran into huge losses. The financial position of the Centre deteriorated as a result of the appointment of 938 employees against 186 vacancies. This led to non payment of salary and allowances to employees, which resulted in a major unrest in September and October, 2011. The Government of Kerala thereupon constituted a three member committee vide G.O. (MS) No.144/2001/H.Edn. dt. 22.10.2001 to study the functioning of

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the Centre and to suggest ways and means for reviving it. In its report the committee made various suggestions to revive the Centre. The committee also observed in its report that over staffing has made the normal functioning of the Centre impossible and recommended termination of the services of excess employees.

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The Governing Body of the Centre that met on 4.3.2002 considered the report submitted by the three member committee and authorised the Managing Director of the Centre to list out the persons whose services have to be terminated. For that purpose he was also authorised to utilise the services of the Convenor of the three member committee appointed by the Government. The Managing Director thereafter prepared a list of 433 employees working in different categories of posts including 10 Reprographic Assistants. The list was prepared having regard to the principles of communal reservation contained in rules 14 to 17 of the Kerala State and Subordinate Services Rules, 1958. The Managing Director recommended termination of the services of the juniormost among the employees working in each category. The Government after examining the proposal of the Managing Director in detail, issued Ext.R2(a) order dated 30.5.2002 approving the proposal of the Managing Director of the Centre. Thereupon by individual orders, the services of 433

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employees were terminated. The service of the petitioner was terminated by Ext.P5 order dated 6.9.2002 issued by the Managing Director of the Centre. He was also paid retrenchment compensation of Rs.2,163/- calculated at the rate of 15 days wages for each completed year of service and the sum of Rs.12,978/- as three months wages in lieu of notice. The order of termination took effect on 7.9.2002. Along with the petitioner, the services of other Reprographic Assistants were also terminated.

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After the order of termination took effect and they ceased to be employees, the petitioner and two other Reprographic Assistants filed O.P.No.5891 of 2003 in this Court challenging the orders terminating their services. They also sought a direction to respondents 2 and 3 therein who are respondents 2 and 3 in the instant writ petition as well, to reinstate them in service with effect from 6.9.2002 with all attendant benefits. They contended that in the report submitted by the three member committee it was found that there were only 5 surplus Reprographic Assistants and therefore the termination of the services of 10 Reprographic Assistants is arbitrary and illegal. It was contended that if the services of only 5 Reprographic Assistants are terminated, as recommended by the three member committee, they would not be affected and could have

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continued in service. Various other contentions were also raised in the original petition. By Ext.P2 judgment delivered on 21.3.2007, a learned single Judge of this Court disposed of O.P. No.5891 of 2003 with the direction that in the event of the petitioners approaching the Government within two months from the date of receipt of a copy of the judgment, the Government shall consider the matter with notice to all affected parties within a period of another four months. The operative portion of the judgment in O.P. No.5891 of 2003 is as follows:

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“In the event of the petitioners approaching the Government within two months from the date of receipt of a copy of this judgment, the matter will be duly considered by the Government with notice to all the affected parties, within a period of another four months. This Original Petition is disposed of as above.”

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Pursuant to Ext.P2 judgment, the petitioners in O.P. No.5891 of 2003 submitted a representation dated 4.7.2007. The Principal Secretary to Government, Higher Education Department heard them on 15.11.2007. At the time of hearing, they reiterated their contention that if the services of only 5 Reprographic Assistants are terminated, as suggested by the three member committee, their juniors alone would have been thrown out of service. They also contended that though the three member committee had recommended retrenchment of 5 Reprographic Assistants and 5 Riso

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Operators (the post of Riso Operator is the promotion post for Reprographic Assistant) the services of Riso Operators have not been terminated. The Government after considering the said contention and rule 2.54 of the Service Rules held that the proper course of action would have been to revert 5 Riso Operators as Reprographic Assistants and then to retrench the surplus Reprographic Assistants. The Government accordingly issued Ext.P1 order dated 21.4.2008 and directed as follows:

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“In the circumstances stated above, Government order that the termination of service of surplus staff in the category of Riso Operators and Reprographic Assistants in the Kerala State Audio Visual and Reprographic Center be done in such a manner that 5 junior most Riso Operators will be reverted as Reprographic Assistants first and then retrench the surplus staff in the category of Reprographic Assistants strictly based on juniority as laid down under clause 2.54 of the Service Rules of the Kerala State Audio Visual and Reprograhic Center in due compliance of the direction contained in the judgment read as 1^st paper above. ”

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Nearly three years after Ext.P1 Government order was issued, the petitioner filed W.P.(C) No.8426 of 2011 in this Court on 16.3.2011 alleging that though by Ext.P1 order the Government had directed reversion of surplus staff in the category of Riso Operators as Reprographic Assistants and retrenchment of the surplus staff in the category of Reprographic Assistants based on seniority as laid down in rule 2.54 of the service rules, the management has not taken any

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action in the matter. In W.P.(C) No.8426 of 2011, the petitioner sought a writ in the nature of mandamus commanding the respondents therein to implement Ext.P1 Government order in an expeditious manner. The petitioner had in that writ petition contended relying on the report of the three member committee that 5 Riso Operators are in excess and therefore 5 Riso Operators should be reverted to the lower post of Reprographic Assistants. W.P.(C) No.8426 of 2011 was admitted and notice ordered to respondents on 5.4.2011. The writ petition thereafter came up for hearing before a learned single Judge on 7.6.2011. On that day, the learned single Judge passed Ext.P6 interim order and directed respondents 2 and 3, who are respondents 2 and 3 herein, to see that the direction in Ext.P1 order is complied with provisionally, within one month from the date of receipt of a copy of the order, subject to the result of the writ petition.

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It appears, shortly after Ext.P1 Government order was issued, Sri.S.Gopakumar and Sri.A.Siddique, who were working as Riso Operators in the Centre filed a representation dated 24.5.2008 seeking modification of Ext.P1 order which directed reversion of Riso Operators to the category of Reprographic Assistants and termination of the services of Reprographic Assistants who are found to be surplus. The Government thereupon called for a report from the Managing Director

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of the Centre. The Governing Body of the Centre that met on 22.6.2011 considered the matter and submitted a report to the Government recommending reconsideration of the directions issued in Ext.P1 order regarding reversion of 5 Riso Operators to the category of Reprographic Assistant. The Government thereafter issued Ext.P7 order dated 5.7.2011 withdrawing the direction in Ext.P1 order that 5 Riso Operators of the Centre should be reverted. Ext.P1 order was accordingly modified. Respondents 2 and 3 thereafter filed R.P. No.654 of 2011 seeking a review of Ext.P6 interim order. When R.P. No.654 of 2011 in W.P.(C) No.8426 of 2011 came up for consideration on 28.9.2011, the learned counsel appearing for the writ petitioners sought permission to withdraw the writ petition reserving liberty with them to challenge Ext.P7 order. Accepting that submission, a learned single Judge of this Court dismissed W.P.(C) No.8426 of 2011 as withdrawn, reserving liberty with the petitioners to challenge Ext.P7 in appropriate proceedings. R.P.No.654 of 2011 was closed. It is in the background of these facts that the instant writ petition was filed on 4.11.2011 challenging Ext.P7 and seeking the following reliefs:

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“(i) To issue a writ of certiorari and quash Exhibit P7 modified order dated 5.7.2011 issued by the 1^st respondent in an expeditious manner.

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(ii) To issue a writ of mandamus and command the respondents to implement Exhibit P1 order bearing G.O.

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WPC No.29628/2011

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(Rt) No . 652/08/H.Edn. Dated 21/4/2008.”

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The main contention raised by the petitioner is that Ext.P7 order has been issued to get over Ext.P1 order and to defeat his rights. Relying on rule 2.54 of the service rules it is contended that retrenchment from service has to be in the order of seniority of employees in each category, that it was in the light of rule 2.54 that Ext.P1 Government order was issued directing reversion of 5 Riso Operators to the category of Reprographic Assistant and retrenchment of the surplus staff in the category of Reprographic Assistant. The petitioner has however no case that if 5 Riso Operators are reverted to the category of Reprographic Assistant and the Reprographic Assistants found to be in excess are retrenched, he will not be one among the Reprograhic Assistants who will be facing retrenchment at that stage. A reading of the writ petition discloses that the real grievance of the petitioner is that Riso Operators have not been reverted to the category of Reprographic Assistants. In short, the purpose of writ petition appears to be to ensure that Riso Operators who were not ordered to be retrenched by Ext.R2(a) Government order dated 30.5.2002, are also retrenched applying rule 2.54 of the service rules. The circumstances under which Ext.P7 order was passed have been set out in detail in paragraphs 4 and 5 of the counter

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affidavit dated 22.5.2002 filed by the first respondent. In paragraph 6 it is stated that Ext.R2(a) order has attained finality as regards the number of Reprographic Assistants who have to be retrenched and that even if 5 Riso Operators are reverted to the category of Reprographic Assistant, 10 juniormost Reprographic Assistants will have to be retrenched and even in that situation the petitioner will be retrenched along with 9 others. The second respondent has sworn to a counter affidavit dated 21.2.2012 reiterating the contentions set out by the first respondent. In paragraph 14 of the said counter affidavit it is stated that the post of Riso Operator is the promotion post of Reprographic Assistants, that by virtue of rule 2.54 retrenchment from service will have to be be in the order of seniority, that there will be no difference as far as the petitioner is concerned if 5 juniormost Riso Operators are retained in their present post and 10 juniormost Reprographic Assistants are retrenched or if 5 juniormost Riso Operators are reverted to the category of Reprographic Assistant and the juniormost among the Reprographic Assistants are retrenched. It is stated that the petitioner will be one among the 10 Reprographic Assistants to be retrenched even if 5 Riso Operators are reverted to the category of Reprographic Assistant. In other words, the reversion of 5 Riso Operators will have no effect on the retrenchment of 10

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WPC No.29628/2011

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Reprographic Assistants including the petitioner who were retrenched from service pursuant to Ext.R2(a) order dated 30.5.2002, with effect from 7.9.2002.

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I heard Sri.S.P.Chaly, learned counsel appearing for the petitioner, Sri.Joe Kalliath, learned Senior Government Pleader appearing for the first respondent and Sri.K.Anand the learned counsel appearing for respondents 2 and 3. I have also gone through the pleadings and the materials on record. Shorn of details, the contention raised by the petitioner is that respondents 2 and 3 ought to have reverted 5 Riso Operators who were found to be in excess by the three member committee appointed by the Government, by implementing Ext.P1 Government order. The petitioner has no case that if Ext.P1 Government order is implemented and 5 juniormost Riso Operators are reverted to the category of Reprographic Assistant and thereafter the juniormost Reprographic Assistants are retrenched he will not be one among 10 persons to be retrenched. He does not also challenge the decision of the respondents to retrench 10 Reprographic Assistants. His contention is that as the three member committee had found that 5 Riso Operators are in excess, 5 Riso Operators also should be reverted in view of rule 2.54 of the service rules. In my opinion the said contention is plainly untenable. It is no doubt true

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that the three member committee appointed by the Government as per G.O.(MS)No.144/2001/H.Edn. dated 22.10.2001 had submitted a

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report to the effect that 5 Riso Operators are in excess. The Governing Body of the Centre that met on 4.3.2002 considered the report submitted by the three member committee and resolved to terminate the surplus staff wherever necessary. The Governing Body also authorised the Managing Director to list out the persons to be terminated from service by utilising the services of the Convenor of the three member committee. The Managing Director thereafter prepared a list of 433 employees holding different categories of posts. The Managing Director of the Centre forwarded that list along with his recommendations to the Government wherein interalia it was stated that the juniormost among the persons holding the respective posts will have to be terminated and that the list had been prepared after considering the cadre strength of the department and applying rules 14 to 17 of the Kerala State and Subordinate Services Rules. The Government after examining the reports submitted by the Managing Director and the three member committee, approved the decision of the Managing Director as regards termination of the services of 433 employees of the Centre. Ext.R2(a) Government order dated 30.5.2002 was thereupon issued.

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A reading of that order discloses that the Government did not direct retrenchment of Riso Operators. In other words, there was no finding to the effect that 5 Riso Operators are in excess of the required staff strength. It was pursuant to Ext.R2(a) order dated 30.5.2002 that Ext.P5 order dated 6.9.2002 was issued retrenching the petitioner from service. In Ext.R2(a) order passed by the Government, the Government directed retrenchment of 10 Reprographic Assistants as against 5 Reprographic Assistants who were found to be in excess by the three member committee. The petitioner would fall within the 5 Reprographic Assistants whose services were to be terminated. By Ext.P5 order dated 6.9.2002 the petitioner was retrenched from service with effect from 7.9.2002. The petitioner did not challenge Ext.P5 order in time. Instead he along with two others challenged the order of retrenchment only in February 2003 by filing O.P.No.5891 of 2003. That original petition was disposed of with a direction that in the event of the petitioners approaching the Government within two months from the date of receipt of a copy of the judgment, the matter will be duly considered by the Government with notice to all the affected parties, within a period of another four months. Ext.P1 order was thereupon issued after hearing Reprographic Assistants alone, but directing termination

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of the services of surplus Riso Operators. The Government did not when it passed Ext.P1 order take note of Ext.R2(a) order dated 30.5.2002 by which the Government had approved the list of 433 employees of the Centre holding different posts and also approved the proposal of the Managing Director of the Centre to terminate their services. As stated earlier, the list prepared by the Managing Director which was accepted by the Government by Ext.R2(a) order did not contain Riso Operators. When Ext.P1 order was passed, the Government proceeded on the basis that the recommendation of the committee was to retrench 5 Riso Operators and 5 Reprographic Assistants and that only juniors of the petitioner will be thrown out from service if 5 Riso Operators are reverted to the category of Reprographic Assistant. The Government did not take note of the fact that if 5 Riso Operators are reverted to the category of Reprographic Assistant, 5 more Reprographic Assistants will have to face retrenchment in addition to those already found to be surplus. The Government also misread rule 2.54 of the service rules while issuing Ext.P1. Aggrieved by Ext.P1 proceedings, the persons whose rights were affected, moved the Government by filing a representation. On that representation the remarks of the Managing Director of the Centre were called for. The Managing Director in turn placed the matter

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before the Governing Body of the Centre. The Governing Body that met on 22.6.2011 decided as follows:

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“The Governing Body noted that even though the recommendation to retrench the surplus staff of the Centre was forwarded in the report by the 3 Member Committee appointed by the Government, all their recommendations regarding retrenchment has not been effected in the Centre and the actual retrenchment was done based on the G.O.(MS) No.55/2002 dated 30.05-2002. It is also noted that certain categories recommended by the 3 Member Committee have not been included in the Government order issued for retrenchment. Hence, as far as retrenchment is concerned, the G.O.(MS) No.55/2002 dated 30.5.2002 is final, as regards the category and number of persons to be retrenched under each category. In the said Government order, it was directed to retrench 10 Reprographic Assistants and that was implemented by the Centre.

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Moreover, even if the direction of retrenchment in the G.O.(Rt) No.652/2008/H.Edn. dated 21.4.2008 is implemented the same 10 persons from the category of Reprographic Assistants would be retrenched and they have already been retrenched by the earlier G.O.(MS) No.55/2002 dated 30.5.2002. Therefore, that part of the G.O.(Rt) No.652/2008/H.Edn. dated 21.4.2008, relating to retrenchment has already been complied with, by the centre.

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As regards the other part, namely reversion, it may affect other employees. In any case, the position of the petitioner will not be affected by the reversion since he has already been retrenched and further decided that the other direction in the G.O.(Rt) No.652/2008/H.Edn. dated 21.4.2008 concerning the reversion of 5 Risograph Operators to Reprographic Assistants, be taken up with Government for reconsideration.

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The Governing Body decided to address the Government to issue a revised Government Order

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considering the above facts.”

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The Government after considering the aforesaid aspects decided to modify the direction in Ext.P1 regarding the retrenchment of 5 Riso Operators. In my opinion, the stand taken in Ext.P7 cannot be assailed having regard to the content of Ext.R2(a) Government order. That apart, Ext.P1 order was passed on the premise that the three member committee had recommended retrenchment of 5 Riso Operators, without noticing the fact that in Ext.R2(a) Government order which approved the list prepared by the Managing Director of the Centre which in turn was prepared after considering the report of the three member committee, there was no direction to retrench Riso Operators. In the absence of any decision to retrench Riso Operators rule 2.54 of the service rules, does not come into operation. It is only if the Centre or the Government had taken a decision to retrench Riso Operators after finding that Riso Operators are in excess of the required strength that rule 2.54 would come into operation. In the instant case, the Government was therefore perfectly right in correcting the mistake committed by it in issuing Ext.P1, by issuing Ext.P7. Every public authority has the inherent power to correct the mistakes committed by it and should be conceded the freedom to rectify mistakes. {Vide V.V.Prakasini v. K.P.S.C. and Others (1993

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(1) KLJ 632)}. In such circumstances, as Riso Operators were not found to be surplus and no decision had been taken by the Centre or by the Government to retrench excess Riso Operators, the stand taken by the Government in Ext.P7 which does justice to Riso Operators whose rights were affected by Ext.P1 order and remedies the injustice caused to them when Ext.P1 order was passed without notice to them, cannot be said to be perverse warranting interference in exercise of this Courts jurisdiction under Article 226 of the Constitution of India. That apart, as stated earlier, even if 5 Riso Operators are reverted to the category of Reprographic Assistant based on seniority, the petitioner will be retrenched as Reprographic Assistants who are senior to him will have to be retrenched. I therefore find no merit in the challenge to the impugned order.

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For the reasons stated above, I hold that the challenge to Ext.P7 order is without merit. The writ petition fails and is dismissed. No costs.

(JUDGE)

vps

WPC No.29628/2011 17

WPC No.29628/2011 18

Mathew T.V. v. State of Kerala & Others

Case brief

What is this about?

What did the court decide?

Mathew T.V. v. State of Kerala & Others

Case brief

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What did the court decide?

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