Allowed

T.D. Bashardeen v. Centre for Earth Science Studies

Kerala HC22 Nov 2016WP(C)/2085/2014

Case brief

AI extract

What is this about?

The Court allowed a writ petition regarding a government employee's claim for promotion to the post of P.A. to Director. The vacancy arose in 2013, before the institution was taken over by the Central Government. The Court held that the recruitment rules existing at the time of the vacancy applied, not the later rules.

What did the court decide?

Exhibits P6 and P22 set aside; 1st respondent directed to consider the petitioner's claim for appointment to the post of P.A. to Director based on rules in force on 01.12.2013.

T.D. Bashardeen Vs Centre for Earth Science… — Pension and Retirement Benefits | Kerala HC (2016)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

¶4

TUESDAY, THE 22ND DAY OF NOVEMBER 2016/1ST AGRAHAYANA, 1938

¶5

WP(C).No. 2085 of 2014 (I)

¶6

PETITIONER:

¶7

T.D.BASHARDEEN, S/O.T.P.DHAWOOD, AGED 57 YEARS, PERSONAL ASSISTANT TO REGISTRAR, CENTRE FOR EARTH SCIENCE STUDIES, P.B.NO.7250, AKKULAM, THIRUVANANTHAPURAM-695 031, RESIDING AT MERA-128, TC 2/752(4), CHALAKKUZHY ROAD, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM-695 011.

¶8

BY ADVS.SRI.K.T.SHYAMKUMAR SRI.HARISH R. MENON SMT.K.N.ABHA SMT.ANU ASHOK

¶9

RESPONDENT(S):

¶10

1. CENTRE FOR EARTH SCIENCE STUDIES, P.B.NO.7250, AKKULAM, THIRUVANANTHAPURAM-695 031, REPRESENTED BY ITS DIRECTOR.

¶11

2. THE DIRECTOR, CENTRE FOR EARTH SCIENCE STUDIES, P.B.NO.7250, AKKULAM, THIRUVANANTHAPURAM-695 031.

¶12

3. UNION OF INDIA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, MINISTRY OF EARTH SCIENCES, GOVERNMENT OF INDIA, BLOCK-12, CGO COMPLEX, LODHI ROAD, NEW DELHI-110 003.

¶13

R1 & R2 BY ADV. SRI.V.KRISHNA MENON, SC R3 BY SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL BY ADV. SRI.T.SANJAY, CGC

¶14

THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶15

mbr/

¶16

WP(C).No. 2085 of 2014 (I)

¶17

APPENDIX

¶18

PETITIO -------	NER(S)' EXHIBITS: ----------------
P1 :	COPY OF THE ORDER DTD.20.5.2010 ISSUED BY THE 2ND RESPONDENT PROMOTING THE PETITIONER TO THE POST OF PA TO REGISTRAR.
P2 :	COPY OF THE NOTE DTD.9.11.2011 ISSUED BY THE DIRECTOR.
P3 :	COPY OF THE MINUTES OF THE PROMOTION COMMITTEE DTD.26.11.2011 WHICH THE PETITIONER OBTAINED UNDER THE RTI ACT.
P4 :	COPY OF THE REPRESENTATION DTD.15.10.2013 SUBMITTED BY THE PETITIONER.
P5 :	COPY OF THE JUDGMENT DTD.3.12.2013 IN WPC NO.29682/2013.
P6 :	COPY OF THE ORDER DTD.31.12.2013 ISSUED BY THE 2ND RESPONDENT.
P7 :	COPY OF THE ORDER DTD.15.11.2013.
P8 :	COPY OF THE ORDERS DTD.29.11.2013 ISSUED BY THE 2ND RESPONDENT.
P9 :	COPY OF THE ORDER DTD.8.6.2012 ISSUED BY THE 2ND RESPONDENT.
P10 :	TRUE COPY OF THE RULES FOR RECRUITMENT AND PROMOTION OF ADMINISTRATIVE STAFF OF KERALA STATE COUNCIL FOR SCIENCE TECHNOLOGY AND ENVIRONMENT.
P11 :	TRUE COPY OF THE STATEMENT FILED BY THE RESPONDENTS 1 AND 2 IN WPC.NO.15698/2014.
P12 :	TRUE COPY OF THE JUDGMENT DATED 13.8.2014 IN WPC.NO.15698/2014.
P13 :	TRUE COPY OF THE ORDER DATED 23.9.2014.
P14 :	TRUE COPY OF THE ORDER DATED 20.10.2014.
P15:	TRUE COPY OF THE ORDER DATED 23.9.2014 ISSUED BY THE 1ST RESPONDENT.
P16:	TRUE COPY OF THE RELEVANT PAGES OF THE SERVICE RULES MADE APPLICABLE TO THE 1ST RESPONDENT INSTITUTION.
P17:	TRUE COPY OF THE REPRESENTATION DATED 13.10.2014 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT ALONG WITH THE COVERING LETTER SUBMITTED TO THE 2ND RESPONDENT.

¶19

--2--

¶20

--2--

¶21

WP(C).No. 2085 of 2014 (I)

¶22

P18: TRUE COPY OF THE REPLY OBTAINED UNDER THE RTI ACT. P19 : TRUE COPY OF THE MINUTES OF THE MEETING HELD IN CONNECTION WITH THE RE-DESIGNATION OF POSTS.

¶23

P20 : TRUE COPY OF THE NOTICE DATED 20.12.2014 DIRECTING THE PETITIONER TO APPEAR FOR ASSESSMENT.

¶24

P21 : TRUE COPY OF THE SELF ASSESSMENT ANNUAL WORK REPORT SUBMITTED BY THE PETITIONER.

¶25

P22 : TRUE COPY OF THE NOTE DATED 24.12.2014 RECEIVED BY THE PETITIONER.

¶26

P23: TRUE COPY OF THE ORDER DATED 3.2.2015 ISSUED BY THE THIRD RESPONDENT.

¶27

P24: TRUE COPY OF THE ORDER DATED 25.6.2015 ISSUED BY THE SECOND RESPONDENT.

¶28

P25: TRUE COPY OF THE NOTIFICATION DATED 10.6.2015 ISSUED BY THE SECOND RESPONDENT.

¶29

RESPONDENT(S)' EXHIBITS: NIL

//TRUE COPY//

P.S. TO JUDGE

mbr/

ANU SIVARAMAN, J.

¶34

= = = = = = = = = = = = = = = W.P.(C).No.2085 of 2014 = = = = = = = = = = = = = = = Dated this the 22^nd day of November, 2016

¶35

JUDGMENT

¶36

1.The petitioner joined service of the 1^st respondent as a Typist on 17.06.1981. He was re-designated as Stenographer in 1993 and was promoted to the post of P.A. to Registrar by Exhibit P1 order dated 20.05.2010. The petitioner claims that he was eligible for further appointment to the post of P.A to Director in a vacancy of one Sri.Rajasekharan Nair, who was due to retire on 30.11.2011. The post was notified by Exhibit P2, and selection was conducted for filling up the post of P.A to Director. By Exhibit P3, a Selection Committee considered and found the petitioner eligible for promotion to the post of P.A to Director, subject to occurrence of vacancy. However, the retirement age of employees in the CESS was enhanced and Sri.Rajesekharan Nair continued in service till 30.11.2013. By this time, it is submitted that the proposal by the Central Government to take over the 1^st respondent was in its advanced stages of consideration, and on 19.12.2013 the Central Government decided to take over the 1^st respondent.

¶37

W.P.(C).No.2085/14

¶38

¶39

The entire process of taking over was completed on 01.01.2014, and Exhibit P16 recruitment rules were adopted in the 1^st respondent. However, the petitioner contends that he claims appointment to the post of P.A. to Director in accordance with Exhibit P10 recruitment rules, which were in force as on 01.12.2013, which is the date of occurrence of vacancy.

¶40

2.The petitioner was transferred from the post of P.A to Registrar. The petitioner had challenged his transfer by filing W.P.(C).No.15698 of 2014, and Exhibit P12 is the judgment. However, it is contended that when Exhibit P16 rules were adopted, there was an intermediate post of Coordinator Grade V between the re-designated post of Coordinator Grade IV held by the petitioner and post of Coordinating Officer Grade I, which was equivalent to the post of P.A to Director. Later the petitioner was granted re-designation as Coordinator Grade V by the Central Government. However, his claim for promotion to the post of Coordinating Officer Grade I was taken up in the year 2015, and it was rejected by Exhibit P22 stating that he

¶41

W.P.(C).No.2085/14

¶42

¶43

did not meet the eligibility criteria.

¶44

3.Heard the learned counsel for the petitioner and the learned standing counsel appearing for the 1^st respondent.

¶45

4.It is contended by the learned counsel for the petitioner that he was found to be eligible for appointment as P.A to Director as on 01.12.2011 by Exhibit P3. It is contended that due to enhancement of the age of retirement, the vacancy which was anticipated to occur on 01.12.2011 did not occur. The vacancy actually arose on 01.12.2013. As such, the petitioner, who was found to be fully eligible and qualified, ought to have been promoted or at least considered for promotion as P.A to Director in terms of Exhibit P10 recruitment rules, which were in force at the relevant time. This had not been done in the instant case.

¶46

5.The learned standing counsel for the respondent, would on the other hand, submit that the proposal for taking over the CESS by the Central Government was under active consideration as

¶47

W.P.(C).No.2085/14

¶48

¶49

early as in 2012. It is contended that the Central Government had issued directions not to fill up permanent vacancies arising in the 1^st respondent during the course of the taking over, since the takeover would entail change in the recruitment rules as well. It is therefore contended that the vacancy which arose on 01.12.2013 could not have been filled up by the petitioner. By the time the petitioner's claim was considered, Exhibit P10 recruitment rules had been replaced by Exhibit P16. Therefore, it is contended that the petitioner's claim had been considered in accordance with Exhibit P16 rules, and the petitioner was found not eligible to be considered for promotion. It is contended that it was only due to the process of takeover that the petitioner's claim for promotion to the vacancy, which arose on 01.12.2013, could not be considered in time. In the above circumstances, it is contended that the petitioner has no claim for promotion in view of Exhibit P22.

¶50

6.I have considered the contentions advanced on either side. The

¶51

substantial issue to be decided in this writ petition is with

¶52

W.P.(C).No.2085/14

¶53

¶54

regard to the claim of the petitioner for promotion to the post of P.A to Director in the vacancy, which admittedly arose on 01.12.2013. It is admitted by the respondents in the counter affidavit filed on 03.03.2014 that the vacancy had arisen as contended by the petitioner on 01.12.2013. It is further stated that there was an understanding entered into between the 1^st respondent and the Central Government, that existing/arising vacancies in the 1^st respondent will not be filled up till the takeover is completed. It is further stated that the Central Cabinet approved the take over on 19.12.2013. It is therefore submitted that the petitioner cannot claim appointment in accordance with Exhibit P10 rules.

¶55

7.It is seen from the pleadings and the materials on record that Exhibit P10 rules governed the service conditions of the employees of the 1^st respondent, as on date of occurrence of vacancy of P.A to Director, i.e. 01.12.2013. The takeover of the 1^st respondent by the Central Government, having received the approval of the Central Cabinet only on 19.12.2013, I am of the definite view that the rules to be applied to consider the

¶56

W.P.(C).No.2085/14

¶57

¶58

petitioner's eligibility for promotion as P.A to Director in the vacancy which arose on 01.12.2013 would be Exhibit P10 rules. By Exhibit P3 proceedings, the petitioner had been found fit and eligible for promotion as P.A to Director in the vacancy which was anticipated to arise on 01.12.2011 in accordance with Exhibit P10 rules. In the above view of the matter, I am of the opinion that what the 1^st respondent ought to have done was to consider the petitioner for promotion to the post of P.A to Director in the vacancy which arose on 01.12.2013, on considering the Confidential Reports for the years 2012 and 2013 alone. The consideration of the petitioner for appointment as Coordinating Officer Grade I in accordance with Exhibit P16 rules and taking into account the Confidential Reports for the further years as well, is completely unwarranted in the facts and circumstances of this case.

¶59

8.In the result, Exhibits P6 and P22 are set aside. The 1^st respondent is directed to take appropriate steps for consideration of the petitioner's claim for appointment to the

¶60

W.P.(C).No.2085/14

¶61

¶62

post of P.A to Director in the vacancy which arose on 01.12.2013, taking into account his performance as on the said date into consideration. Orders, as directed above, shall be passed within a period of one month from the date of receipt of a copy of this judgment. It is submitted that the petitioner is due to retire from service on 30.11.2016. It is therefore directed that the claim of the petitioner shall be assessed, and orders passed by the 1^st respondent notwithstanding such retirement, and benefits if any, shall be disbursed to the petitioner within a further period of one month thereafter.

¶63

The writ petition is ordered accordingly.

¶64

sd/-

¶65

Anu Sivaraman, Judge

¶66

sj23/11

T.D. Bashardeen v. Centre for Earth Science Studies

Case brief

What is this about?

What did the court decide?

T.D. Bashardeen v. Centre for Earth Science Studies

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Aboobacker P. Vs the State of Kerala

Jyotheendranath.D. Vs the State of Kerala

Krishnakumar P.P. Vs State of Kerala

Jameela P. Vs State of Kerala

V.R.Jayakrishna Vs Kerala Gramin Bank

Sony K.Paul Vs Kerala Public Service Commission