Disposed

Vijayan Nair v. State of Kerala and Others

Kerala HC14 Nov 2016WP(C)/9613/2010

Case brief

AI extract

What is this about?

The High Court of Kerala held that further proceedings regarding the petitioner's reversion from Manager to Driver be stayed. The appropriate authority was directed to dispose of the show cause notice within two months while maintaining the status quo for the petitioner. The Petitioner is an employee of Kerala State Handicapped Persons Welfare Corporation.

What did the court decide?

Stay on proceedings regarding reversion; Corporation to pass reasoned order within two months; Status quo maintained regarding petitioner's service.

Vijayan Nair Vs State of Kerala and Others — 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 MRS. JUSTICE ANU SIVARAMAN

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MONDAY, THE 14TH DAY OF NOVEMBER 2016/23RD KARTHIKA, 1938

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WP(C).No. 9613 of 2010 (B)

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PETITIONER :

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G. VIJAYAN NAIR, S/O.GANGADHARAN NAIR, AGED 51 YEAR,WORKING AS MANAGER, KERALA STATE HANDICAPPED PERSONS-WELFARE CORPORATION, POOJAPPURAM, TRIVANDRUM.

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BY ADVS.SRI.AUGUSTINE JOSEPH SRI.K.S.ROCKEY

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RESPONDENT(S):

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1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO SOCIAL WELFARE DEPARTMENT, GOVT. SECRETARIAT, TRIVANDRUM.

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2. KERALA STATE HANDICAPPED PERSONS WELFARE CORPORATION, REPRESENTED BY ITS MANAGING DIRECTOR, POOJAPPURA, TRIVANDRUM.

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3. MANAGING DIRECTOR, KERALA STATE HANDICAPPED PERSONS WELFARE CORPORATION, POOJAPPURA, ERNAKULAM.

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*ADDL.R4 IMPLEADED

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*ADDL.R4: K.G.SAJAN, S/O.GANGADHARAN, AGED 56, GENERAL CONVENER, KERALA SAMSTHANA VIKALANGA SANGHATANA IYKYA MUNNANI, T.R.A 62, THAMARABHAGAM, MEDICAL COLLEGE.P.O., THIRUVANANTHAPURAM DISTRICT.

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*ADDL.R4 IS IMPLEADED AS PER ORDER DATED 10/04/15 IN IA.NO.5363/15.

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R1 BY GOVERNMENT PLEADER SRI.BIJOY CHANDRAN R2 & R3 BY ADVS. SMT.K.AMMINIKUTTY

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SRI.N.RAGHURAJ ADDL.R4 BY ADV. SRI.P.SANTHOSH KUMAR (TR)

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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sts

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WP(C).NO.9613/2010

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APPENDIX

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PETITIONER'S EXHIBITS:

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P1 COPY OF THE APPOINTMENT ORDER DATED 26/11/04 ISSUED BY THE 3RD RESPONDENT.

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P2 COPY OF THE ANONYMOUS LETTER DATED NIL BEFORE THE CHIEF MINISTER OF KERALA.

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P3 COPY OF THE LETTER DATED 26/4/08 ISSUED BY THE 1ST RESPONDENT

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P4 COPY OF THE REPLY DATED 16/5/08 ISSUED BY THE 3RD RESPONDENT

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P5 COPY OF THE REPLY DATED 20/1/09 ISSUED BY THE 3RD RESPONDENT

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P6 COPY OF THE LETTER DATED 10/9/09 ISSUED BY THE 3RD RESPONDENT

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P7 COPY OF THE SHOW CAUSE NOTICE DATED 12/1/2010 ISSUED BY THE 3RD RESPONDENT

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P8 COPY OF THE REPLY DATED 27/1/2010 ISSUED BY THE PETITIONER.

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P9 COPY OF THE REPRESENTATION DATED 30/12/04 BEFORE THE THEN HON'BLE MINISTER FOR SOCIAL WELFARE DEPARTMENT.

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P10 COPY OF THE REPLY DATED 3/1/05 ISSUED BY THE 3RD RESPONDENT

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P11 COPY OF THE NOTICE DATED 17/3/2010 ISSUED BY THE 3RD RESPONDENT

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P12 COPY OF THE QUESTIONNAIRE CUM REPLY ISSUED BY THE PUBLIC INFORMATION OFFICER UNDER THE 2ND RESPONDENT DATED 19/2/2010

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P13 COPY OF THE ORDER NO.3478/A3/08 DATED 23/12/09

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P14 COPY OF THE ORDER NO.1843/2/HPWC DATED 21/3/92 ISSUED BY THE 2ND RESPONDENT CORPORATION

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P15 COPY OF THE ORDER NO.165/81/HPWC DATED 22/6/91

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P16 COPY OF THE LETTER DATED 16/3/87 ISSUED TO THE MANAGING DIRECTOR OF THE RESPONDENT CORPORATION FROM THE SPECIAL SECRETARY TO GOVT. SOCIAL WELFARE DEPARTMENT

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P16 IN IA.NO.18706/2016 COPY OF THE GOVERNMENT ORDER DATED 24/6/2016

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RESPONDENT'S EXHIBITS:

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R2(A) COPY OF THE EXTRACT OF THE MINUTES OF THE MEETING OF THE BOARD DIRECTOFS HELD ON 28/07/2004

/TRUE COPY/

P.A.TO JUDGE

sts

ANU SIVARAMAN, J.

W.P.(C) No.9613 of 2010

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Dated this the 14^th day of November, 2016

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JUDGMENT

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The petitioner challenges Ext.P7 notice and Ext.P11

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communication issued by the Government, by which he has been directed to show cause as to why he should not be reverted as Driver in the second respondent corporation. The petitioner was initially appointed as Driver in the corporation in the year 1980. He was given a posting as Store Assistant in the year 1984 in the same scale of pay. By Ext.P1 order dated 26.11.2004, the post of Industries Extension officer in the MRST Unit of the second respondent was redesignated as Manager, and the petitioner was posted as Manager with effect from 01.12.2004.

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It is stated in Ext.P7 that the appointment of the petitioner is subject to ratification by the Board of Directors. It is submitted by the petitioner that pursuant to an anonymous letter addressing the corporation, action was

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W.P.(C) No.9613 of 2010 -2-

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taken against the petitioner on the ground that he did not possess the requisite qualification for the post. The petitioner relied on the minutes of the meeting of the Board of Directors held on 28.07.2004 appended to Ext.P4 letter to contend that there was a decision taken to redesignate the post of Industries Extension Officer and to appoint the petitioner as Manager. In the above circumstances, it is stated that the action taken against him was completely unjustified. By Ext.P7 show cause notice dated 12.01.2010, the petitioner was informed that there was a proposal to revert him to the post of Driver, in view of the fact that he did not have the requisite educational qualifications to hold the post of a Manager, and his appointment did not have prior permission or sanction of the Government. The petitioner preferred Ext.P8 detailed reply. However, the petitioner submits that in view of Ext.P13 communication from the Secretary to Government to the third respondent requesting respondents 2 and 3 to take steps for reverting the petitioner in accordance with law, no useful

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W.P.(C) No.9613 of 2010

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purpose would be served by Ext.P8 reply or by any hearing in the matter.

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Heard the learned counsel for the petitioner, learned Government Pleader appearing for the first respondent as well as the learned Standing Counsel appearing for respondents 2 and 3.

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It is contended by the learned counsel for the petitioner that he had been continuing as Manager from 2004 onwards on the strength of Ext.P1 order issued by the third respondent as well as Ext.P4 resolution of the Board of Directors. It is therefore contended that the decision to revert him, which is based on anonymous complaints, is completely illegal and unjustified. He states that since further proceedings pursuant to Ext.P7 have been stayed by this Court, he should be allowed to continue as Manager.

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The learned Government Pleader appearing for the first respondent would contend that the qualification prescribed for appointment to the post of Industries Extension

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W.P.(C) No.9613 of 2010

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Officer was diploma in Engineering, which was later revised as Graduation in Engineering. It is submitted that the petitioner, who only has the qualification of SSLC, is not eligible to be appointed as Manager. It is therefore that the Government had decided to take steps to cancel the promotion illegally granted to him, and the second respondent was directed to take action in accordance with law, after hearing the petitioner also. It is further submitted that the endorsements made by the then Managing Director to the effect that the petitioner was duly appointed as Manager cannot help the petitioner since it is not in dispute that the petitioner did not have the requisite qualification for appointment either as Industries Extension Officer or as Manager. The appointment as per Ext.P1 order, as well as the order of the Managing Director fixing the pay of the petitioner in the scale of Rs.5,500 - 9,075/-, is contended to have been erroneous and therefore, the action is sought to be sustained.

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The learned counsel appearing for the second

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W.P.(C) No.9613 of 2010 -5-

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respondent would contend that Ext.P1 order of the Managing Director was specifically subject to ratification by the Board of Directors. It is contended that the Board of Directors had never ratified the appointment of the petitioner. The original of the minutes of the Board of Directors dated 28.07.2004 is produced along with the counter affidavit of the second respondent as Ext.R2(a). It is stated that the decision as has been extracted in Ext.P4 did not originally form the part of the said minutes and a later interpolation attempted in Ext.R2(a) also remains incomplete. In the above view of the matter, it is submitted that the appointment of the petitioner as Manager is not supported by any ratification by the Board of Directors. It is also contended that the said appointment is without considering the question of the possession of the required qualification by the petitioner.

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I have considered the contentions advanced on either side. It is a specific contention of the learned counsel for the petitioner that the post of Industries Extension Officer,

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W.P.(C) No.9613 of 2010 -6-

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which was a substantive post available in the corporation, was initially carrying a scale of pay less than Rs.1,000/-. It is therefore contended that redesignation of the post and the appointment of the petitioner did not require any Government sanction. It is also contended that the petitioner had been officiating in the said post since 01.12.2004 without causing room for any complaints and therefore, the petitioner's claim for continuance ought to have been considered by the Board of Directors or the Government before issuing a show cause notice in the nature of Ext.P7. The petitioner contends that his appointment, as well as the fixation of his pay, were supported by orders of the third respondent and were ratified by the Board. This aspect is contested by the learned Standing Counsel appearing for the second respondent.

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In the facts and circumstances of the case, I am of the opinion that the eligibility of the petitioner for continuance in the post of Manager is to be examined by the third respondent, in view of the orders passed and the materials

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W.P.(C) No.9613 of 2010 -7-

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relied on by the petitioner, as well as considering the factual aspects regarding the ratification of Ext.P4 by the Board of Directors. Ext.P8 reply preferred by the petitioner against Ext.P7 show cause notice will therefore be taken up by the third respondent with notice to the petitioner, and orders shall be passed on the same within a period of two months from the date of receipt of a copy of this judgment. All the contentions raised by the petitioner in Ext.P8 shall be considered, and a reasoned order shall be passed by the third respondent. Till such orders are passed, status quo as on today shall be maintained.

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Writ petition is disposed of as above.

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Sd/ANU SIVARAMAN, JUDGE

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Vijayan Nair v. State of Kerala and Others

Case brief

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Vijayan Nair v. State of Kerala and Others

Case brief

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