Allowed

Manoj Kumar v. Managing Director, K.H.R.W.S

Kerala HC23 Nov 2016WP(C)/7917/2010

Case brief

AI extract

What is this about?

Petitioner challenged an order reverting him to the post of Peon with retrospective effect. The court held that the long delay of six years in raising objections and the subsequent attempt to correct the appointment vitiated the proceedings, setting aside the order and permitting continuation as Helper.

What did the court decide?

Ext.P6 order set aside; petitioner permitted to continue in service as Helper.

Manoj Kumar Vs Managing Director, K.H.R.W.S — Service and Employment | 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 MRS. JUSTICE ANU SIVARAMAN

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WEDNESDAY, THE 23RD DAY OF NOVEMBER 2016/2ND AGRAHAYANA, 1938

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WP(C).No. 7917 of 2010 (L)

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PETITIONER(S):

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M.S.MANOJ KUMAR, AGED 27, SON OF P.MANOHARAN, THAIVILAKATHU VEEDU, GOURI BHAVAN, KALADY, KARAMANA P.O., THIRUVANANTHAPURAM.

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BY ADVS.SRI.T.K.VENUGOPALAN SRI.SHIBU JOSEPH SRI.V.SANJEEV

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RESPONDENT(S):

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MANAGING DIRECTOR, KERALA HEALTH RESEARCH AND WELFARE SOCIETY, (KHRWS), REGISTERED OFFICE, GENERAL HOSPITAL COMPLEX, RED CROSS ROAD, THIRUVANANTHAPURAM.

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BY ADV. SRI.M.AJAY, SC

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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msv/

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WP(C).No. 7917 of 2010 (L)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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P1 TRUE COPY OF PROCEEDINGS OF THE RESPONDENT DTD.10.6.2003.

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P2 TRUE COPY OF THE ORDER ISSUED BY THE ASSISTANT DIRECTOR I.P.P. PRESS DTD.25.3.2006.

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P3 TRUE COPY OF THE PROCEEDINGS OF THE RESPONDENT DTD.30.11.2007.

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P4 TRUE COPY OF THE SHOW CAUSE NOTICE ISSUED BY THE RESPONDENT DTD.7.8.2009.

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P5 TRUE COPY OF THE EXPLANATION SUBMITTED BY THE PETITIONER.

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P6 TRUE COPY OF THE ORDER DTD.23.2.2010 ISSUED BY THE RESPONDENT.

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RESPONDENT(S)' EXHIBITS

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EXT.R1(a): TRUE EXTRACT OF THE MINUTES OF THE RELEVANT GOVERNING BODY DTD.18.2.2003.

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EXT.R1(b): TRUE COPY OF THE COMPLAINT RECEIVED BY THE RESPONDENT FROM THE S.RAJAN DTD.26.6.2009.

//TRUE COPY//

P.S.TO JUDGE

msv/

ANU SIVARAMAN, J.

W.P.(C) No.7917 of 2010

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Dated this the 23^rd day of November, 2016

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JUDGMENT

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The petitioner challenges Ext.P6 order of the

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respondent, by which he has been reverted to the post of Peon with retrospective effect from the date of his appointment. The petitioner contends that he was appointed as Helper in the I.P.P. Press under the respondent on 10.06.2003, by Ext.P1

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order. He was placed in a scale of pay of Rs.2650-4150/-. Ext.P1 is an order of the Managing Director, which refers to a decision of the Governing Body dated 20.03.2003. The petitioner continued in service on the basis of Ext.P1 order. By Ext.P4 dated 07.08.2009, the petitioner was required to show cause why he should not be reverted to the post of Peon/Cleaner, which was duly approved and supported by a decision of the Governing Body. It is stated in Ext.P4 that the Governing Body did not meet on 20.03.2003 and no decision was taken by the Governing Body to appoint the petitioner as

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W.P.(C) No.7917 of 2010 -2-

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Helper. It is stated that the Governing Body had met on 18.02.2003 and had decided to appoint the petitioner only as Peon/Cleaner.

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The petitioner had submitted Ext.P5 reply to Ext.P4 show cause notice, stating that he had been appointed as Helper in the scale of pay of Rs.2650-4150/- by Ext.P1 order dated 10.06.2003, and that he had been continuing in service on the basis of Ext.P1. It is contended that he is completely unaware of the allegations raised in Ext.P4 that the Governing Body had decided only to appoint him as Peon/Cleaner. He therefore contended that he is entitled to continuance as Helper. However, by Ext.P6 proceedings dated 23.02.2010, the respondent found that the explanation preferred by the petitioner was unsatisfactory, and that he was entitled to appointment only as Peon/Cleaner in the scale of pay of Rs.2610 - 3680/- with effect from 18.02.2003. The excess salary paid to him was also directed to be recovered.

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W.P.(C) No.7917 of 2010

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Heard the learned counsel for the petitioner and the learned Standing Counsel appearing for the respondent.

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It is contended by the learned counsel for the petitioner that the petitioner was appointed by Ext.P1 order dated 10.06.2003, and was permitted to continue as Helper under the respondent, till the year 2009, without any demur from any quarters. Ext.P4 show cause notice also does not contain any allegation as against him, even in the matter of appointment. It is stated in Ext.P4 that the decision taken by the Governing Body on 18.02.2003 was to appoint the petitioner as Peon/Cleaner. It is stated that Ext.P1 refers to a Governing Body meeting held on 20.03.2003. It is stated that on that date, the Governing Body did not meet and there was no decision to appoint the petitioner as Helper in the scale of pay of Rs.2650-4150/- as is stated in Ext.P1. After consideration of the petitioner's objections, Ext.P6 order dated 23.02.2010 held that the appointment of the petitioner as

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W.P.(C) No.7917 of 2010

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Helper on 10.06.2003 was irregular. It is therefore stated that he was entitled for appointment only as Peon, and would be

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reverted as Peon with retrospective effect from 11.06.2003.

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The learned counsel appearing for the respondent

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relied on Ext.R1 application preferred under the Right to Information Act to contend that there were other persons who were irregularly appointed under the dying-in-harness scheme, whose appointments were later found to be irregular, and who were reverted as in the case of the petitioner. However, it is contended that information has been sought by another employee, seeking information as to why the petitioner had not been reverted. Ext.R1(b) produced along with the counter affidavit is the minutes of the meeting of the Governing Body held on 18.02.2003. It is stated that the Governing Body had decided to appoint the petitioner as Peon/Cleaner under the compassionate appointment scheme. It is further contended by the learned counsel that the

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Managing Director was not the appointing authority in respect of posts under the society. The Governing Body is the authority empowered under Rule 13(f) of the Rules and Regulations of KHRWS to make appointments. It is therefore contended that Ext.P1 order, which relied on a Governing Body meeting held on 20.03.2003 to appoint the petitioner as Helper is incompetent, since no record of any such meeting is available. It is therefore contended that the appointment of the petitioner by the Managing Director as Helper, which is unsupported by any decision of the Governing Body, is completely erroneous and without justification, and continuance of the petitioner as Helper from 10.06.2003 on the basis of a wrong order could not have conferred any rights on him.

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I have considered the contentions advanced on either side. I find that the petitioner was appointed pursuant to Ext.P1 order issued by the respondent. The petitioner has

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W.P.(C) No.7917 of 2010 -6-

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been continuing on the basis of the said appointment order as Helper under the respondent from 10.06.2003. No action of any nature has been taken against the petitioner for at least 6 years after he joined service. The contention raised by the learned counsel for the respondent that the appointment of the petitioner was completely incompetent, cannot be accepted in view of the fact that the Managing Director of the society is evidently the executive officer of the society, who would be competent to give effect to decisions of the Governing body. The appointment of employees sanctioned by the Governing Body would have to be given effect by orders of the Managing Director. In the above view of the matter, the contention evidently is that Ext.P1 order of appointment is not supported by the decision of the Governing Body, in as much as sanction was only for appointment of the petitioner as Peon/Cleaner, and that there is no competent decision to appoint the petitioner as Helper.

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As stated earlier, the appointment was in the year 2003. The petitioner continued as a Helper with effect from the date of his joining duty pursuant to Ext.P1 order. No objection was raised to his continuance in service as Helper from any quarters for 6 years. The contention now raised in the show cause notice also does not implicate the petitioner in any manner. It is contended that his appointment as Helper was not supported by a decision of the Managing Committee. Apparently, the allegation is that the Managing Director had issued Ext.P1 order, in violation of the decisions of the Managing Committee, which was held on 18.02.2003. Apparently, it was only in the year 2009 that the irregularity in his appointment was noticed, and action was taken to correct the same.

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In the facts and circumstances of the case, I am of the view that the long delay in issuing the show cause notice in the first instance, and seeking to correct the nature of the

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petitioner's appointment after 6 years vitiates the proceedings. Ext.P6 order reverting the petitioner as Peon/Cleaner with effect from his date of initial appointment and seeking to recover the difference in pay is also unsustainable. Ext.P6 order is therefore set aside. The petitioner is permitted to continue in service as Helper.

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Writ petition is ordered accordingly.

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Sd/ANU SIVARAMAN, JUDGE

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Manoj Kumar v. Managing Director, K.H.R.W.S

Case brief

What is this about?

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Manoj Kumar v. Managing Director, K.H.R.W.S

Case brief

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