Dismissed

Neesha M.N v. Mini T.B

Kerala HC29 Jun 2016OP(KAT)/29/2016

Case brief

AI extract

What is this about?

The High Court of Kerala examined a petition challenging the Tribunal's dismissal of an application seeking inclusion in a recruitment rank list based on an Apex Court order. The court held the benefit was limited to actual appellants in the Supreme Court.

What did the court decide?

The original petition was dismissed as it was against the Tribunal's correct order and was barred by the judgment in O.P.(KAT) No. 222 of 2015.

Neesha M.N Vs Mini T.B — Pension and Retirement Benefits | Kerala HC (2016)

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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.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

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WEDNESDAY, THE 29TH DAY OF JUNE 2016/8TH ASHADHA, 1938

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OP(KAT).No. 29 of 2016 (Z)

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AGAINST THE ORDER IN OA 605/2015 of KERALA ADMINISTRATIVETRIBUNAL, THIRUVANANTHAPURAM DATED 19-01-2016

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PETITIONER(S)/APPLICANT NO.2.:

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NEESHA M.N., AGED 32 YEARS, W/O.A.G.SUJINKUMAR, MADAVANA HOUSE, EDAVAKAD P.O., ERNAKULAM-682502.

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BY ADV. SRI.KALEESWARAM RAJ

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RESPONDENT(S)/APPLICANT NO.1 & RESPONDENT:

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MINI T.B

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W/O.SHIBU A.S., ASSARIPARAMBIL HOUSE, POTTAKUZHI CROSS ROAD, PACHALAM P.O., ERNAKULAM-682012.

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STATE OF KERALA

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REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM-695001.

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DEPUTY DIRECTOR OF EDUCATION ERNAKULAM 682505.

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KERALA PUBLIC SERVICE COMMISSION REPRESENTED BY THE SECRETARY, KERALA PUBLIC SERRVICE COMMISSION, PATTOM, THIRUVANANTHAPURAM-695004.

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THE DISTRICT OFFICER KERALA PUBLIC SERVICE COMMISSION, DISTRICT OFFICE, ERNAKULAM-682001.

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R2 AND R3 BY SENIOR GOVERNMENT PLEADER SRI. K.C. VINCENT R4 AND R5 BY SRI.P.C.SASIDHARAN, SC, KPSC

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THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 29-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(KAT).No. 29 of 2016 (Z)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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----------------------EXHIBIT-P1: TRUE COPY OF THE ORDER DATED 19.1.2016 IN O.A.(EKM) NO.605/2015.

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EXHIBIT-P2: TRUE COPY OF THE MEMORANDUM OF O.A.(EKM) NO.605/2015 TOGETHER WITH ANNEXURES.

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EXHIBIT-P3: TRUE COPY OF THE REPLY STATEMENT FILED ON BEHALF OF RESPONDENT 3 AND 4 IN THE O.A.

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RESPONDENT(S)' EXHIBITS : NIL

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/TRUE COPY/

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P.A. TO JUDGE

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P.R. RAMACHANDRA MENON &

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ANIL K. NARENDRAN, JJ.

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JUDGMENT

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Anil K. Narendran, J.

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The petitioner is the second applicant in O.P.(EKM) No. 605 of 2015 before the Kerala Administrative Tribunal. The applicants, who were originally included in the Annexure A1 ranked list published by the fourth respondent for the post of H.S.A. (Physical Science) in Ernakulam District, has approached the Tribunal in that O.A. seeking an order directing the second respondent to report all the substantive vacancies including the NJD vacancy in the post of H.S.A. (Physical Science) in Ernakulam District to the fourth respondent before the expiry of Annexure A1 ranked list. They have also sought for an order directing respondents 3 and 4 to pass appropriate orders by including their names in Annexure A1 ranked list by extending the benefit of Annexrue A5 order of the Apex Court in Civil Appeal Nos. 226 – 227 of 2015 and connected cases.

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The Tribunal after considering the rival contentions, rejected the said original application by Ext. P1 order dated 19.01.2016.

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O.P.(KAT) No. 29 of 2016

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: 2 :

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Paragraphs 8 and 9 of Ext. P1 order read as follows :

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“8. Of course, in paragraph 15 of Annexure A5, it has been made clear that the order will not be quoted as a precedent in future recruitments. May be, the applicants are candidates who applied for, in the same recruitment, but obviously the appellants in Annexure A5 alone are covered by the order.

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The learned counsel then submitted that in the light of paragraph 3 of Annexure A6 judgment of the Division Bench of the Hon'ble High Court, there can be a distinction between the applicants herein and the applicant in OA (Ekm.) No. 714 of 2015. Our attention is drawn to the following sentence: “We are sure that neither the impugned order of the Tribunal nor this judgment would stand in the way of the petitioners enjoying any benefit available to them in terms of Ext. P3”. Ext. P3 therein is Annexure A5 herein. Of course, the learned counsel for the applicants placed heavy reliance on the said observation, but as rightly pointed out by the learned Standing Counsel for the Public Service Commission, it cannot be termed as a positive finding in favour of the applicants to the effect that they are entitled for the benefit of Annexure A5 order.

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In that view of the matter, we find no reason to take a different view than taken in O.A.(Ekm.) No. 714 of 2015. Hence the Original Application is dismissed.”

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It is aggrieved by Ext. P1 order passed by the Tribunal, the petitioner is before this Court in this original petition.

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O.P.(KAT) No. 29 of 2016

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: 3 :

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We heard the learned counsel for the petitioner, the learned Standing Counsel for the Public Service Commission appearing for respondents 4 and 5 and also the learned Senior Government Pleader appearing for the official respondents 2 and 3.

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The question whether Annexure A5 order passed by the Apex Court could be made applicable to similarly situated persons like the petitioner herein is no more res integra in view of the verdict of this Court in Kerala Public Service Commissioner and another Vs. Divya P. and others [judgment dated 21.07.2015 in O.P.(KAT) No. 2904 of 2013 and 222 of 2015] in which one among us [PRRM – (J)] was a member. Paragraphs 9 to 11 of the judgment read thus;

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“9. On going through the pleadings and proceedings, it is seen that the case considered by the Apex Court, as given in the opening paragraph itself, was with reference to candidates who were having graduation in Chemistry. The case does not refer to the cause of action of anybody having any other qualification. It is stated by the learned Standing Counsel for the PSC that, in some streams where Chemistry was one of the main subjects, Physics was not there and still, the matter had to be considered with reference to the notified qualification; i.e. either Chemistry or Physics as the main subject, as an enabling qualification.

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It is to be noted that the grievance projected before the Apex Court was with reference to the subsequent deletion of

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O.P.(KAT) No. 29 of 2016

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: 4 :

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names of the concerned persons from the rank list already published by the PSC, allegedly for not possessing the requisite qualification (Para 10 of the judgment). It was after taking note of the particular facts and circumstances, that the Apex Court observed (in paragraph 11) that, without setting up a precedent in future selections, the PSC could be directed to carry out the exercise to the requisite extent as specified therein, in connection with the placement given in the ranked list and the consequence resulted because of subsequent deletion. It was accordingly, that an observation was made in paragraph 13 of the verdict, that the proceedings of the PSC, particularly the show cause notice referred to in the statement filed, pursuant to which deletion of names of the appellants was made from the rank list, was set aside.

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The exercise to be pursued by the PSC as per Ext.P9 judgment is contained in paragraph 14, which reads as follows:

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“14. The names of the appellants in the Ranking list dated 14th June, 2011, 18th October, 2011 , 28th November, 2012, 28th December, 2011, 4th January, 2012, 2nd February, 2012, 6th February, 2012, 15th February, 2012, 21st February, 2012 and 12th March, 2012, shall stand restored and the respondents are directed to operate the said Ranking List on its own merits and wherever it finds the appellants suitable and vacancies remain, appointment order shall be issued expeditiously. The first respondent and the second respondent-Commission shall carry out the above-said exercise in accordance with the procedure prescribed expeditiously preferably within a period of two months. ”

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The position made clear in the next paragraph, i.e. 15, is also

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O.P.(KAT) No. 29 of 2016

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: 5 :

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extracted hereunder:-

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“15. We make it clear that we pass the above said order in the peculiar facts of these cases. This cannot be, however, quoted as a precedent in future recruitments. Since the appellants were fighting this litigation by approaching the Tribunal at the earliest point of time and have come up to this Court, it is needless to state that the expiry of the Ranking List should not stand in the way for considering the names of the appellants for issuing the appointment orders in accordance with the procedure prescribed as directed in this order. ”

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From the above, it is evident that the benefit of Ext.P9 verdict of the Apex Court was intended to be extended only to those who were parties before the Supreme Court, particularly considering the long standing litigations being pursued by the parties at different levels and in turn directing the PSC to have the names of the appellants to be considered for issuing appointment orders. The Apex Court did not give any general direction to recast the entire rank list, based on the observations therein, and no law has been declared to the effect that the judgment under challenge was wrong or unsustainable in law, but for moulding the reliefs in respect of the persons, who were appellants before the Apex Court. It is for this reason, that the Apex Court said it pointblank, that the same shall never be treated as a precedent for future recruitment. It is also relevant to note that, some other persons sought to have the benefit as prayed for by the parties before the Supreme Court, by filing separate I.As.. But no interference was made and the I.As. were dismissed by the Apex

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O.P.(KAT) No. 29 of 2016

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: 6 :

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Court, with liberty to the parties to work out their remedy, if any, before the appropriate forum, as held in paragraph 16 of the judgment. This being the position, this Court finds that the benefit of Ext.P9 judgment is not liable to be extended to the petitioner in O.P.(KAT) 222 of 2015, who lost the case before the Tribunal way back in 2012, when her O.A. was dismissed as per Ext.P3 judgment dated 18.09.2012, who did not choose to challenge the proceedings either by filing a Review Petition or by way of Original Petition or by moving the Apex Court in accordance with law.”

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In that view of the matter, the reasoning of the Tribunal in Ext.P1 order that the applicants in the present O.A. i.e. O.A. (EKM) No. 605 of 2015 are not entitled for the benefit of Annexure A5 order of the Apex Court cannot be found fault with. In Ext. P1 order, the Tribunal has also referred to Annexure A6 judgment of this Court in O.P.(KAT) No. 85 of 2015. During the course of arguments, it was brought to the notice of this Court that the validity of Annexure A1 ranked list has already expired.

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Since the issue raised in this case is covered against the petitioner by the judgment dated 21.07.2015 of this Court in O.P. (KAT) No. 222 of 2015 and connected case, we find absolutely no grounds to interfere with Ext. P1 order passed by the Tribunal.

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O.P.(KAT) No. 29 of 2016

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: 7 :

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In the result, the original petition fails and the same is

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dismissed.

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sd/-

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P. R. RAMACHANDRA MENON, JUDGE

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sd/-

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ANIL K. NARENDRAN,

JUDGE

kmd

/True copy/

P.A. to Judge

Neesha M.N v. Mini T.B

Case brief

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Neesha M.N v. Mini T.B

Case brief

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