Writ petition challenging rejection of application for staff post due to inadequate attendance. Court held petitioner had 68.59% attendance against 70% requirement. Petition dismissed with no substantive relief.
Writ petition dismissed as petitioner did not possess requisite 70% attendance for the post.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE SMT. JUSTICE P.V.ASHA
THURSDAY ,THE 13TH DAY OF DECEMBER 2018 / 22ND AGRAHAYANA, 1940
WP(C).No. 33340 of 2018
PETITIONER/S:
RAJEEV R AGED 34 YEARS S/O RAJENDRAN NAIR, OIL PALM QUARTERS, ROOM NO. 12, VILAKKUPARA P.O, KETTUPLACHY, KOLLAM-691312 BY ADVS. SRI.R.SANJITH SMT.C.S.SINDHU KRISHNAH
RESPONDENT/S:
1 OIL PALM INDIA LIMITED KODIMATHA, KOTTAYAM, KERALA-686013, REPRESENTED BY ITS MANAGING DIRECTOR
2 SENIOR MANAGER(HRD) OIL PALM INDIA LIMITED, KODIMATHA, KOTTAYAM, KERALA-686013. 3 MANAGER ESTATE SENIOR MANAGER(HRD), OIL PALM INDIA LIMITED, KODIMATHA, KOTTAYAM, KERALA-686013. BY ADV. SRI.VIPIN NARAYAN
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29.11.2018, THE COURT ON 13.12.2018 DELIVERED THE FOLLOWING:
P.V.ASHA, J.
W.P.(C) No.33340 of 2018
Dated this the 13th day of December, 2018
JUDGMENT
A worker under the respondents has filed this writ petition challenging Exts.P1 and P3 circulars and for a direction to the respondents to issue fresh circular/notification prescribing the correct qualification as contemplated under the Recruitment Rules for Oil Palm India Ltd. for the post of Aaya, Hospital Attendant (Medical Orderly), Lab Attendant, Messenger, Sweeper and Watcher and to conduct a fresh test.
in the place of work and recognised holidays with wages would be
W.P.(C) No.33340/2018
3
:
included in attendance and that leave without pay would not be reckoned towards attendance. Physically handicapped persons were not eligible for appointment to the post of Watchers/Messengers. It was stated that the management would have the discretion to appoint an applicant to any category depending upon his expertise, the requirement of management etc. and the decision of the management would be final. However, the applicants were free to submit the order of their preference. In the event of applicants getting equal marks those with more service would be given preference; when service is reckoned, the leave without pay would be deducted. In the event of applicants having the same service, preference shall be given depending on the age. Validity period of rank list was to be one year. It was stated that the notification published on 13.06.2013 was canceled and only those applicants who are submitting applications pursuant to Ext.P1 would be considered for appointment subject to the decisions in W.A.No.442/2012. The last date fixed was 23.03.2018. As per Ext.P2 letter dated 14.6.2018, application submitted by the petitioner was rejected on the ground that he does not have 70% attendance during the period from 01.03.2013 to 28.02.2014 and 01.03.2015 to 29.02.2016. In the event of any objection he was requested to submit the same within a period of three days. Thereafter the respondents
W.P.(C) No.33340/2018
4
:
issued Ext.P3 circular on 30.08.2018 rectifying the anomalies and errors in Ext.P1 notification. It was stated that the condition that applicant should have 70% attendance in each of 5 years immediately preceding the date of the circular that is 01.03.2018 was to be corrected and those applicants having 70% attendance, cumulatively for 5 years immediately preceding the date of Ext.P1 were eligible to apply. It was stated that those who could not submit application on the ground that they did not have 70% attendance in each of the 5 years would be free to submit application before 10.08.2018 in case they were having all other qualifications as per the notification dated 01.03.2018. It was stated that those who are eligible would be considered for selection and a separate written test would be conducted for them and their marks in the written test would be considered along with the marks of the candidates who appeared in the test conducted on 22.10.2018 and they would be included in the short list for interview on the basis of the marks. It was further stated that those who were having the qualification as per Ext.P1 notification but did not submit application would not be eligible to apply.
as per Ext.P4 letter dated 23.08.2018 stating that his application submitted pursuant to Ext.P1 circular was rejected and therefore he
W.P.(C) No.33340/2018
5
:
was not eligible to submit application again. After submitting an application under the Right to Information Act requesting to furnish the pay slips in his name for the period form 01.01.2013 to 31.03.2018, he filed this writ petition on 10.10.2018, challenging Ext.P4 rejection of his application.
W.P.(C) No.33340/2018
6
:
2014 along with others. But he got it dismissed as not pressed, after coming to know that he did not have sufficient attendance. It is pointed out that as per the Recruitment Rules for promotion to staff category from workers, the qualifying period of 5 years and 70% attendance is necessary. It is stated that the requirement of 70% attendance for promotion to the staff category stipulated by the 2nd respondent was upheld in Ext.R2(a) judgment dated 10.12.2014 in WP(C)No.29261 of 2014. Furnishing the year wise details of attendance of the petitioner in Ext.R2(b) it is stated that the petitioner was having only 68.76% attendance. Producing Ext.R2(c) writ Petition filed by the petitioner along with others and Ext.R2(d) judgment in it, it is pointed out that the petitioner suppressed the same in this writ petition. It is stated that the respondents had already issued Ext.P3 notification in order to provide an opportunity to those who had 70% attendance in the preceding 5 years but could not submit their application because of the conditions in Ext.P1. All such eligible applicants were permitted to submit their applications. It is stated that a separate written test was conducted on 18.09.2018 and their marks in the written test was taken into consideration along with the other
candidates who had already appeared for the written test and candidates were shortlisted for the process of interview and interview
W.P.(C) No.33340/2018
7
:
was conducted on 25.10.2018 and 26.10.2018. According to the respondents, petitioner, who kept quiet till 10.10.2018, for about two months after receipt of the rejection letter, cannot be allowed to challenge Ext.P3 notification, as he applied pursuant to the same accepting the conditions and that he was estopped from challenging the same. It was also pointed out that in view of the writ petition he had already filed as can be seen from Ext.R2(c) and R2(d) the present writ petition is not maintainable. Pointing out that opportunity was provided to candidates who were eligible, it was stated that no candidate was put to prejudice as the mistake was corrected. It was stated that petitioner is challenging the notification Ext.P1 and P3 only after submitting his application and this writ petition was filed only on 10.10.2018 after the written test for the additional candidates were conducted. He was remaining silent all this time.
W.P.(C) No.33340/2018
8
:
days in a year as 312 is incorrect because the total number of working days is only 300 days. Producing Ext.P6 calendar published by the respondents for the year 2018, it is stated that after deducting 52 Sundays and 13 holidays there would be only 300 days of working in a
year. Therefore according to him the attendance percentage for the petitioner was as follows:
Applying the total no. of working days for percentage calculation the attendance percentage for the petitioner during the period
01.03.2013 to 28.02.2014 is 151.50/300 x 100 = 50.5%,
01.03.2014 to 28.02.2015 is 233.50/300 x 100 = 77.83%,
01.03.2015 to 28.02.2016 218.50/300 x 100 = 72.83%,
01.03.2016 to 28.02.2017 241/300 x 100 = 80.33%,
01.03.2017 to 28.02.2018 229/300 x 100 = 76.33%.
W.P.(C) No.33340/2018
9
:
action. It was pointed out that conducting a separate written test for candidates who were not allowed to participate in the selection and including their marks along with the marks of other candidates is illegal. According to him refusal to disclose the number of existing vacancies is malafide. According to him the respondents ought to have conducted a fresh test allowing all the eligible employees to participate in the selection. Petitioner claims that his right to be considered for appointment to a higher post is effectively denied by the respondents.
affidavit pointing out the mode of calculation of percentage of attendance for the period from 01.03.2013 to 28.02.2018 which is stated as follows:
Total days during the 5 year 1826.00 (365 x 4) + (366 x 1) period Total Sundays during the period 261.00 (No wages paid) Balance days for which 1565.00 100.00% wages can be earned
Excluding Sundays it is stated that wages are earned for 1565 days for the 5 years which included one leap year. It is stated that the percentage of attendance is calculated as:
Total days for which wages are earned X 100 Total days on which wages could be earned
W.P.(C) No.33340/2018
10
:
| Actual Attendance | 951.50 | 60.80% |
|---|---|---|
| Holidays | 73.00 | 4.66% |
| Annual Leave with wages days |
49.00 | 3.13% |
| Total wage earned days out of the 1565 days |
1073.50 | 68.59% |
Therefore it is stated that as petitioner is having only 68.59% attendance he is not eligible for applying for the post. According to the respondents petitioner included the holidays for the days on which wages are earned. But omitted to include it against the days for which wages could be earned and arrived at the percentage on a wrong calculation. It is therefore stated that in case the method stated by the petitioner is adopted, the percentage of attendance of a worker would be more than 100%, which would mean that he worked for more days than the actual days. It is stated that the working days of a company are the base in a calendar year excluding Sundays and approved holidays. It is stated the that the Company is following the method of calculation of the number of days as explained in the preceding paragraph. It is stated that only those workers who satisfied the
W.P.(C) No.33340/2018
11
:
conditions were allowed to appear in the examination. Furnishing the attendance of the petitioner, M/s.Sony C.S, Suchithra G.S. and Kiran Kumar it is stated that they did not have 70% attendance cumulatively but on fulfilling the eligibility criteria of 70% cumulative attendance in 5 years their attendance particulars were calculated. It is stated that the application of Sri.Sony C.S. for the post of Vehicle Helper was rejected since he did not have the requisite attendance.
W.P.(C) No.33340/2018
12
:
percentage of attendance. Thus the contention of the petitioner that he is entitled to be considered for selection and that a separate selection has to be conducted in which all the eligible candidates who applied pursuant to Ext.P1 notification and also the notification on rectification has to be considered.
W.P.(C) No.33340/2018
13
:
issued the re-notification modifying the condition regarding the attendance, the respondents were not right in rejecting his application on the ground that his first application was rejected. The circular itself was issued enabling those with cumulative attendance of 70% in the preceding year whereas the first circular insisted 70% in each of the years.
Note:- Should have minimum of 70% attendance in the feeder category for the immediate preceeding five years, as on date of notification for selection. Approved absent days due to work spot accident and approved leave days with salary/wages will be taken in to consideration for counting attendance. Absent days with out salary/wage will not be considered for attendance.
W.P.(C) No.33340/2018
14
:
total days. Or otherwise, it was not necessary to reckon such holidays towards attendance. In that event those days need not be reckoned towards attendance. But the recruitment rules says such holidays and any day with wages would be reckoned towards attendance. In that event the percentage has to be calculated with reference to the number of actual attendance + days of absence with wages (including holidays) divided by total number of days – holidays without wages or ((total number of working days + holidays with wages).
wages. Thus total days on which wages are drawn will come to 1073.50 as stated above. Then attendance is 68.59%.
W.P.(C) No.33340/2018
15 :
01.03.2013 to 28.02.2014 - 151.50/313 x 100 = 48.40%,
01.03.2014 to 28.02.2015 - 233.50/313 x 100 = 74.60%,
01.03.2015 to 28.02.2016 - 218.50/313 x 100 = 69.81%,
01.03.2016 to 28.02.2017 - 241/313 x 100 = 77.00%,
01.03.2017 to 28.02.2018 - 229/313 x 100 = 73.16%.
The cumulative attendance would come to 342.97/5=68.97
W.P.(C) No.33340/2018
16 :
percentage is calculated on the basis of 300 days of total days of work, the petitioner will not be eligible to appear in the selection.
In the above view of the matter, it is not necessary to examine the other issues raised by the petitioner. Though the rejection of application on the ground stated in Ext.P4 is unsustainable, as petitioner does not have the requisite attendance he is not entitled to be considered for selection.
Writ Petition therefore fails and is dismissed.
Sd/-
P.V.ASHA
JUDGE
rkc
W.P.(C) No.33340/2018
17
:
APPENDIX
PETITIONER'S/S EXHIBITS:
| EXHIBIT | P1 TRUE CIRCU |
COP LAR |
Y OF T DATED 01 |
HE RELEVANT PAGES OF /03/2018. |
|---|---|---|---|---|
| EXHIBIT | P1 A TRUE RECRU LIMIT |
COPY ITME ED. |
OF THE NT RULE |
RELEVANT PAGES OF THE S FOR OIL PALM INDIA |
| EXHIBIT | P2 TRUE |
COPY | OF THE | REPLY DATED 14/06/2018 |
| EXHIBIT | P3 TRUE 30/08 |
CO /201 |
PY OF 8. |
THE CIRCULAR DATED |
| EXHIBIT | P4 TRUE |
COPY | OF THE | REPLY DATED 23/08/2018. |
| EXHIBIT | P5 TRUE |
COP | Y OF | THE APPLICATION UNDER |
| RIGHT 05/09 |
T /201 |
O INF 8. |
ORMATION ACT DATED | |
| EXT.P6 | TRUE THE Y |
COPY EAR |
OF THE 2018 |
CALENDAR PUBLISHED FOR |
RESPONDENTS' EXHBITS
| EXT.R2A | TRUE COPY HON'BLE HI NO.29261/14 |
OF THE JUDGMENT OF THE GH COURT OF KERALA IN WPC DT.10.12.14 |
|---|---|---|
| EXT.R2B | TRUE COPY DETAILS OF |
OF THE YEAR WISE ATTENDANCE THE PETITIONER |
| EXT.R2C | TRUE COPY THE PETITI HON'BLE COU |
OF WPC NO.23686/18 FILED BY ONER AND OTHERS BEFORE THIS RT |
| EXT.R2D | TRUE COPY NO.23686/18 DT.23.7.18 |
OF THE JUDGMENT IN WPC OF THIS HON'BLE COURT |
| EXT.R2E | TRUE COPY NO.25359/18 DT.7.8.18 |
OF THE JUDGMENT IN WPC OF THIS HON'BLE COURT |
3 issues framed by the court
Whether petitioner has requisite 70% cumulative attendance over the preceding five years as per recruitment rules. Whether rejection of application based on first circular insufficient when subsequent
Whether attendance percentage should be calculated based on total calendar year days or specific working days including holidays with wages.
Whether petitioner is entitled to Challenge rejection after applying under corrected circular correcting eligibility calculation.
RAJEEV R
OIL PALM INDIA LIMITED
SENIOR MANAGER(HRD) OIL PALM INDIA LIMITED
MANAGER ESTATE SENIOR MANAGER(HRD) OIL PALM INDIA LIMITED
P.V.ASHA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
