Allowed

Deepa M.M v. High Court of Kerala

Kerala HC20 Feb 2018WP(C)/6151/2017

Case brief

AI extract

What is this about?

A writ petitioner challenging appointments made by direct recruitment to Cataloguer posts during the validity of a rank list. The Court held that rank lists do not confer vested rights and vacancies must be filled via promotion or transfer if eligible candidates exist, quashing the direct recruitment appointments.

What did the court decide?

Exts.P4, P5, P7, P10 and Ext.R2(5) orders quashed; appointments of 2015 onwards set aside; direction to appoint by transfer of qualified hands within two months.

Deepa M.M Vs High Court of Kerala — Service and Employment | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE SMT. JUSTICE P.V.ASHA

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TUESDAY, THE 20TH DAY OF FEBRUARY 2018 / 1ST PHALGUNA, 1939

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WP(C).No. 6151 of 2017

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PETITIONER:

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DEEPA M.M, W/O SUDHI P.P, PONNACHUPARAMBIL HOUSE, CHERAI PO, ERNAKULAM, PIN - 683514.

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BY SRI.P.RAVINDRAN (SENIOR ADVOCATE) ADV.SRI.SREEDHAR RAVINDRAN

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RESPONDENT(S):

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1. HIGH COURT OF KERALA, REPRESENTED BY ITS REGISTRAR GENERAL, HIGH COURT OF KERALA, ERNAKULAM, KOCHI - 31. 2. THE REGISTRAR GENERAL, HIGH COURT OF KERALA, ERNAKULAM, KOCHI - 31. 3. DEEPA C. DAS, PALLIMAKKAL (H), KONATHUKUNNU, VALLIVATTOM PO, THRISSUR - 680123. R1 & R2 BY SRI.N.N.SUGUNAPALAN (SENIOR ADVOCATE) ADV. SRI.C.S.DIAS R3 BY ADV. SRI.N.RAGHURAJ

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: mbr/

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WP(C).No. 6151 of 2017 (R) --------------------------

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APPENDIX

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PETITION --------	ERS' ----	EXHIBITS: ---------
EXHIBIT	P1	TRUE COPY OF THE NOTIFICATION DATED 14.8.2013.
EXHIBIT	P2	TRUE COPY OF THE RANK LIST DATED 15.11.2014.
EXHIBIT	P3	TRUE COPY OF THE REPRESENTATION DATED 6.10.2015.
EXHIBIT	P4	TRUE COPY OF THE ORDER DATED 16.7.2016 REJECTING THE REPRESENTATION.
EXHIBIT	P5	TRUE COPY OF THE ORDER DATED 18.7.2016.
EXHIBIT	P6	TRUE COPY OF THE REPRESENTATION DATED 30.7.2016.
EXHIBIT	P7	TRUE COPY OF THE ORDER DATED 19.9.2016.
EXHIBIT	P8	TRUE COPY OF THE NOTIFICATION DATED 22.5.2017.
EXHIBIT	P9	TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONERS DATED 29.5.2017.
EXHIBIT	P10	TRUE COPY OF THE ORDER OF THE 1ST RESPONDENT DATED 3.7.2017.

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RESPONDENTS' EX ---------------	HIBITS: ------
EXHIBIT R2(1)	TRUE COPY OF OFFICIAL MEMORANDUM DATED 1.3.2013 ISSUED BY THE HIGH COURT.
EXHIBIT R2(2)	TRUE COPY OF OFFICIAL MEMORANDUM DATED 24.5.2013 ISSUED BY THE HIGH COURT.
EXHIBIT R2(3)	TRUE COPY OF ORDER NO.A6-95163 OF 2014 DATED 12.1.2015 ISSUED BY THE HIGH COURT SHOWING THAT SMT.SEENA S.T. WAS OFFERED APPOINTMENT AS CATALOGUER.
EXHIBIT R2(4)	TRUE COPY OF ORDER NO.A5-31593 OF 2015 DATED 1.10.2015 ISSUED BY THE HIGH COURT.
EXHIBIT R2(5)	TRUE COPY OF PROCEEDINGS DATED 24.8.2017 ISSUED BY THE 1ST RESPONDENT.

/TRUE COPY/

P.S.TO JUDGE

mbr/ 28.2.2018.

P.V.ASHA J.

W.P.(C).No.6151 of 2017

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------------------------------------- Dated this the 20^th day of February, 2018

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J U D G M E N T

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The question to be considered in this case is whether the provisions contained in Rule 7(2) of the Kerala High Court Service Rules, 2007 (hereinafter referred to as 'the Rules' for short) which provide that a rank list published for direct recruitment will continue to remain in force for a fixed period would enable the respondents to fill all the vacancies arising during currency of the ranked list by direct recruitment notwithstanding the method of appointment provided in the rules and the availability of candidates under the other methods of appointment provided in Rule 6(1) of the High Court Service Rules.

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The petitioner is presently working as a

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Computer Assistant in this High Court. She commenced her service as a Peon in the High Court on 28.02.2005. She was appointed as Binder in the Library on 13.8.2012, on appointment by transfer. On 29.10.2014, she was appointed as Typist Copyist Grade II and thereafter as Computer Assistant on 06.07.2015. She is a graduate in Economics with Typewriting (Lower and Higher) (English) with Computer word Processing, and KGTE Book Binding (Lower). She acquired Degree in Library and Information Science in the year 2014 and became fully qualified for appointment as Cataloguer.

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The qualifications prescribed for appointment to the post of Cataloguer in the High Court are: “ 1. University Degree and 2. A Degree or diploma in Library Science ”. The method of appointment to the post of Cataloguer as provided in Rule 6(1) read with Column (3) of Annexure I is as follows:

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“ Promotion from Senior Grade Library Assistant, appointment by transfer or direct recruitment”.

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One vacancy of Cataloguer arose in the High Court in the year 2013. Since there was no qualified hand for appointment by promotion or for appointment by transfer, Ext.P1 notification was issued inviting application for direct recruitment on 14.8.2013. While notifying one vacancy of Cataloguer, it was also notified that vacancies that may arise during the period of validity of rank list shall also be filled up from the list. It was also provided that rank list shall remain in force for a minimum period of two years and shall continue to remain in force until the publication of a fresh list or till the expiry of three years, whichever is earlier. Pursuant to that Ext.P2 rank list was published on 15.11.2014. From this rank list rank No.2 was appointed, since rank No.1 did not join duty.

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When the petitioner acquired Degree in Library

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and Information Science, she submitted Ext.P3 representation dated 06.10.2015, requesting for appointment against that vacancy, pointing out that she acquired all the qualifications for appointment as Cataloguer, by transfer, in 2014 itself. Pointing out the method of appointment provided in the rules, she requested respondents 1 and 2 to fill up the vacancy by way of appointment by transfer. But the request was rejected along with that of one Smt. Jasmin, as per Ext. P4 Office Memorandum, stating that a rank list for direct recruitment is available, which is valid for a minimum period of two years as per Rule 7(2) of the Rules and that the Honourable Acting Chief Justice has ordered to reject the representations. She submitted another representation Ext.P6 which was also rejected as per Ext.P7 OM. The writ petition was filed challenging Exts.P4 and P7 letters of rejection and challenging the appointment of the 3^rd respondent.

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During the pendency of the writ petition Ext.P8 office memorandum was issued on 22.5.2017 calling for willingness from approved probationers having Degree or Diploma in Library Science, working in categories having same scale of pay or lower scale of pay than that of Cataloguer on or before 31.5.2017. Pursuant to Ext.P8 notification the petitioner submitted Ext.P9 willingness on 29.5.2017. However by Ext.P10 official memorandum Ext.P8 OM was withdrawn. By Ext.P10 three candidates including the petitioner who had submitted willingness were informed that the appointment is to be made by direct recruitment, since as per Rule 7(2) of the High Court Service Rules, rank list shall remain in force until publication of a fresh list or till the expiry of three years. The writ petition was thereafter amended, incorporating challenge against Ext.P10 order, as per order dated 25.07.2017.

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2^nd respondent filed a counter affidavit and an

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additional counter affidavit. It is stated that there were two posts of Cataloguers in the High Court. One vacancy in the post arose on 20.02.2013, consequent to promotion of Smt. Indhu as Assistant Librarian; there was no qualified Senior Grade Library Assistant available for promotion. In para 4 of the counter affidavit, the respondents stated as follows:

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“ As none of the incumbents in the lower category i.e Senior Grade Library Assistant were qualified for promotion, appointment by transfer was ordered to be resorted to, as the next method of appointment. xx”

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Even though willingness was called for from among qualified hands, as per Exts.R2(1) and (2) Official Memorandums on 01.03.2013 and 24.05.2013, no qualified hands were available to submit willingness. Thereupon the recruitment and examination cell was entrusted to take steps for direct recruitment. Ext.P1 notification was issued thereafter. Though one vacancy was notified, it was also notified that the rank list would

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remain in force for a minimum period of two years from the date on which it is brought into force and shall continue to remain in force until the publication of a fresh list or till the expiry of three years whichever is earlier, in tune with Rule 7(2) of the Rules. Ext.P2 rank list was published on 15.11.2014. One Smt. Seena S.T was appointed on 12.01.2015. Whileso another vacancy of Cataloguer arose on 01.10.2015, consequent to the promotion of one Sri. Srinivasan as Assistant Librarian. Though the petitioner submitted a representation it was rejected, as the rank list was in force. The 3^rd respondent was appointed thereafter as per Ext.P5 order on 18.07.2016. In para 22 and 23 of the counter affidavit it is stated as follows:

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“22. If the petitioner's request is accepted, that is to make the appointment by transfer method, that too during the existence of valid ranked list, when the 2^nd vacancy arose on 01.10.2015, it would be in hostile violation of the settled proposition of law, Rules and to the violation of the fundamental right of the 3^rd respondent.

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In the rules there is no quota/ratio fixed for making

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appointment by transfer from other categories during the currency of the ranked list. Xxxxx”

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8. Further in para 27 and 28 it is stated as

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follows:

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“27. xxx The 3^rd respondent and other incumbents in the Ext P2 ranked list which came into force on 12.11.2014, had the requisite eligibility to be appointed to the post of Cataloguer well prior to the date the petitioner acquired the prescribed qualification. A reading of the averments in this counter affidavit would substantiate that the High Court resorted to direct recruitment was resorted to fill the post of Cataloguer only due to non-availability of eligible candidates for appointment by promotion from Senior Grade Library Assistant (the feeder category) or by appointment by transfer.

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Ext P1 notification is published strictly in adherence to the Rules and authoritative precedents on the subject matter. The petitioner has rightly admitted that the validity of the ranked list is for a specified period as per the rules. Hence, during the validity of Ext P2 ranked list, only the 3^rd respondent was eligible for appointment and was rightly appointed as per Ext P5. The petitioner's subsequent acquisition of qualification, after Ext P2 ranked list came into force on 12.11.2014, is irrelevant and inconsequential, as the 3^rd respondent had well prior to that became eligible for appointment. Going by the rules and precedents, it cannot be disputed that during the currency of the ranked list, the vacancies can only be filled from the existing ranked list and not from any other stream.”

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In the additional counter affidavit it was stated that one

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additional post of Cataloguer was sanctioned as per G.O.

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(Ms) No. 80/2017/Home dated 11.04.2017. As there was

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no qualified Senior Grade Library Assistant, willingness was called for from qualified hands for appointment by transfer, as per Ext P8 OM, and willingness was received from petitioner and two others. But it was found that the ranked list continued to be in force till 11.11.2017 as per Rule 7(2) of the Rules and hence as per Ext P10 order dated 03.07.2017, the High Court informed them that it was decided to fill up the vacancy by direct recruitment. Another candidate from Ext P2 ranked list was appointed as per Ext R2(5) order, subject to the result of this writ petition and the reasons for the same are stated in Exts. P10 and R2(5) orders.

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On 30.08.2017, the 2^nd respondent filed I.A.14157 of 2017 producing Ext.R2(5) order dated 24.08.2017, by which one Sri. Nishad N.G, the next candidate in the rank list for direct recruitment, was offered provisional appointment against the additional post subject to the result of the writ petition. It was

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stated that after calling for applications for appointment by transfer, as per Ext.P8 O.M, it was found that filling up the newly sanctioned post by appointment by transfer during the currency of the rank list is against settled position of law and it was not on par with the conditions prescribed in Ext.P1 notification.

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However the person who was given provisional appointment as per Ext.R2(5) did not get impleaded in this writ petition, though his appointment was made provisionally and subject to the result of the writ petition. 11. The 3^rd respondent filed a counter affidavit stating that she was initially appointed in a leave vacancy of Smt. Seena S.T, on 25.11.2014 and thereafter against the vacancy of Sri. Sreenivasan and she was appointed as per Ext.R3(a) order on 18.07.2016 against a regular vacancy. She is a graduate in Botany and has passed B.Lisc and M.Lisc and based on inclusion in the ranked list she was appointed and is continuing in the post. As

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she was appointed against a vacancy which arose during the currency of Ext.P2 ranked list prior to July 2016, her appointment is in tune with Rule 7(2) of the rules and the provision in Ext.P1 notification. It is her case that the candidates coming under other 2 modes of appointment cannot have any claim when ranked list is in force. Moreover, no ratio is prescribed in the rules and that petitioner did not challenge the notification which provided for filling up the vacancies from the ranked list during its validity period.

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I have considered the pleadings of the parties and contentions raised by Sri. P.Ravindran, the learned Senior Counsel for the petitioner, Sri. N.N. Sugunapalan, the learned Senior Counsel for respondents 1 and 2 and Sri. N. Reghuraj for the 3^rd respondent.

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The vacancies of Cataloguer which the petitioner claims arose on 01.10.2015 and 11.04.2017.

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The ranked list for direct recruitment came into force on

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12.11.2014 and it was to continue in force till 11.11.2017, in normal circumstances.

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As per Rule 3 of the Rules, the categories of Typist Copyist Grade II and Computer Assistant are classified in Sub Division 4 and 3 respectively under Division II whereas Cataloguer is category no. 1 in Sub Division 6 in Division II. As per Rule 6(1) of the Rules, appointments to any of the categories in the service are to be made as per the methods prescribed in Column (3) of Annexure I to the Rules. The method of appointment to the category of Cataloguer prescribed in Annexure I is : promotion from Senior grade Library Assistant, by appointment by transfer or direct recruitment. Rule 20 provides for promotion and appointment by transfer. Clause (a) of Subrule 1 thereof provides for the categories which are treated as selection categories for promotion, which are to be made on the basis of merit and ability. The category of Cataloguer is not one

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included in clause (a) of sub rule 1. As per clause (b) of subrule (1) promotion is to be made on the basis of seniority, in all cases other than those provided in clause (a). Sub rule 7 of Rule 20, provides for appointment by transfer to any category in any of the sub divisions under Division II, for which no feeder category is prescribed under the rules; according to which those willing and qualified hands having identical scale of pay shall be considered first; in their absence those with lesser pay scale and so on.

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As per Subrule (2) of rule 7 of the rules, as it prevailed at the relevant time, the ranked list for direct recruitment shall continue to be in force for a minimum period of two years and shall continue to operate till a new rank list is published or the expiry of three years, whichever is earlier. There is no provision in the rules that once the ranked list comes into force appointment shall be made only by direct recruitment.

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I am of the considered view that when different

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methods of appointment are prescribed for appointment to a post and there is no ratio, whenever a vacancy arises, the respondents have to fill up the same in accordance with the order in which such methods are given in the rules. First of all they should have ascertained whether there was anybody eligible for promotion; in their absence, they should have called for willingness of qualified hands among categories with lower scale of pay. Direct recruitment should have been resorted to only if there were no qualified candidates under the first two methods of appointment. The availability of candidates for promotion as well as for appointment by transfer, as on the date of occurrence of vacancies should have been ascertained.

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In the counter affidavit the respondents themselves have admitted that they resorted to proceedings for direct recruitment only because there

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were no qualified hands available under the first two methods; that is for promotion and thereafter for appointment by transfer. As far as the first vacancy filled up from Ext.P2 is concerned, there is no complaint for anybody. But when the 2^nd and 3^rd vacancies arose in 2015 and 2017, notwithstanding the currency of the ranked list, the respondents ought to have ascertained whether any qualified hand was available for promotion and thereafter for appointment by transfer, instead of appointing the 3^rd respondent from the ranked list. Ext.P8 OM calling for willingness was issued rightly but withdrawn illegally.

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It is settled law by way of a catena of decisions of this Court and Apex Court, that the qualification and method of appointment for filling up a vacancy shall be decided in accordance with the rules in force as well as the eligibility of candidates as on the date of occurrence of vacancies. In Velayudhan V Secretary to

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Government: 1985 KLT 793, a Division Bench of this Court held that the method of appointment and eligibility for appointment to a post has to be decided in

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accordance with the rules and the position arising as on the date of occurrence of the vacancy. In that case the vacancy arose at a time when there was no qualified hand for promotion or appointment by transfer and hence it was reported to PSC. Before actual appointment Government issued an order based on which the appointment was to be made by promotion. The claim of the in-service hands was repelled on the ground that vacancy was liable to be filled up in accordance with the rules in force, qualification as well as eligibility as on the date of occurrence of vacancy. In Mohanan v. Director of Homeopathy:: 2006 (3) KLT 641 (F.B.) , the Full Bench of this Court, while considering the claim of the candidates included in the ranked list published by the Kerala Public Service Commission (PSC) for direct

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recruitment for appointment, when the rules governing appointment had undergone amendment in 1999, subsequent to the issuance of notification issued by PSC in 1995, held that that the vacancies which arose subsequent to the amendment of the Rules on 12-4-1999 shall be filled up only in accordance with the Special Rules which came into force on 12-4-1999. Considering the effect of Rule 14 of PSC Rules of Procedure which is in pari-materia with Rule 7(2) of Rules, which also provides that candidates would be advised against the vacancies already reported to PSC and vacancies which would be reported to PSC during the currency of the rank list, was also considered in that case and it was held as follows:

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If the PSC is given the liberty to make advice from the list in force prepared in accordance with the unamended rules in respect of vacancies which arose subsequent to the commencement of the amended rules, necessarily, that would amount to the PSC changing the date of commencement of the amended rules, which cannot be permitted by any stretch of imagination. R.14 of the Kerala Public Service Commission Rules of Procedure also cannot change the date of commencement of the amended Rules promulgated by the Government. Therefore, R.14 can only be subservient to the powers of the Government to frame or

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amend Special Rules with or without retrospective affect and cannot be relied upon to enable the PSC to make advise from current rank list for appointment to vacancies which arose subsequent to the framing or amendment of the Special Rules.”

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It was also held that mere inclusion of the name of a candidate in the rank list would not automatically confer a vested right for appointment. It was held that, that principle would apply with equal force to a select list actually in force at the time when amendment occurs, meaning thereby that in such cases also, the vacancies arising subsequent to such amendment can be filled up only in accordance with the amended recruitment rules notwithstanding the currency of the select list.

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Eventhough there was no amendment to the rules in the present case, as and when a vacancy arose in the post, it was incumbent on the respondents to ascertain the availability of candidates for the first two methods of appointment, as long as no ratio is prescribed for any method and when the order in which the method

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of appointment is provided is firstly by promotion, secondly by appointment by transfer or by direct recruitment. When once a vacancy was already filled up, the second respondent ought to have repeated the proceedings as done by issuing Exts.R1, R2 and Ext.P8.

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It is settled law that a candidate included in the ranked list does not have any vested right for appointment on the basis of mere inclusion in the ranked list. The contention of the respondents that filling up vacancies by any other method would be in violation of the fundamental right of the candidates in Ext.P2 list is baseless and against the settled law laid down in a series of judgments like Shankarsan Dash v. Union of India: (1991) 3 SCC 47 :AIR 1991 SC 1612, where it was held that the candidates in the select list/ranked list do not acquire any indefeasible right to the post or for appointment. Just because the ranked list continued to be in force for a certain period it cannot be said that the

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vacancies cannot be filled up by other methods when eligible hands are available.

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The contention of the respondents that the candidates in the ranked list acquired eligibility prior to the petitioner acquired qualification is absolutely unsustainable. The date of acquisition of qualification by the candidate for direct recruitment prior to that of the candidate in the feeder category for promotion as well as for appointment by transfer is irrelevant in determining the method of appointment to be resorted. The crucial criteria for determining the same is the eligibility and qualification as on the date of occurrence of vacancy.

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When the second and third vacancies arose in the year 2015 and 2017, candidates were available for appointment by transfer. From the counter affidavit of the respondents itself it is clear that they resorted to direct recruitment seeing that there was no qualified hand for promotion and thereafter on being convinced that there

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was no qualified hands for appointment by transfer. Therefore, in spite of the fact that the rank list was in force and the appointment was made as against the first vacancy when admittedly there was no qualified hand, the action of the respondents in filling up the second and third vacancies by way of direct recruitment from the rank list is contrary to the rules. When the petitioner submitted representation, the respondents ought to have considered her case in accordance with the provisions contained in Rule 6 read with the Annexure I. Rule 7(2) does not provide that whenever a vacancy arises during the currency of the rank list that vacancy has to be filled up by way of direct recruitment. Rule 7 (2) only enables appointment by way of direct recruitment from the rank list, subject to the method of appointment as on the date of occurrence of vacancies or as against the vacancies to be filled by direct recruitment.

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When the method of appointment is clear and

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the respondents understood it so when the 3^rd vacancy arose, by issuing Ext.P8 OM, it cannot be said that the vacancy which arose when qualified hands were available for appointment by transfer should be filled up by direct recruitment. Ext.R2(5) is seen issued when the writ petition was pending. The respondents chose to call for application from among willing candidates and the 3^rd vacancy arose on account of the sanctioning of additional posts in the year 2017. But that circular itself was cancelled by Ext.P8 on the ground that rank list was in force. Ext.P10 and Ext.R2(5) are contrary to the provisions contained in Rule 6 read with Annexure I, as well as the true intent and spirit of the rules.

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The contention of the Learned counsel for the 3^rd respondent relying on Rule 40(3), that the power conferred on the Chief Justice under this provision enables appointment from the rank list in the light of Rule 7(2) is unsustainable. It was also pointed out that since

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Rule 6 itself provides for appointments by way of deputation, it cannot be said that appointments could have been made only in the order in which the method of appointment is provided in the said rules. I find that in the present case no such deputation or other appointment was sought to be made contrary to what is provided in the rules. Moreover respondents 1 and 2 do not have a case that Rule 40(3) was invoked or that any of the methods other than those given in Rule 6(1) are adopted or sought to be adopted in this case.

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The filling up of the vacancies in the post of Cataloguers which arose in the year 2015 and 2017 by direct recruitment, when qualified hands were available for appointment by transfer is therefore illegal.

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In the above circumstances, I quash Exts.P4, P5, P7 and P10. The appointment by Ext.R2(5) is illegal. The appointments made against the vacancies of Cataloguers from 2015 onwards shall stand set aside. There shall be a

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direction to respondents 1 and 2 to make appointments to the vacancies which arose from 2015 onwards by transfer of qualified hands as on the respective dates on which the vacancies arose. This shall be done within a period of two months from the date of receipt of a copy of the judgment.

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The writ petition is allowed accordingly.

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Sd/-

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P.V.ASHA, JUDGE.

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Rkc/AS

Deepa M.M v. High Court of Kerala

Case brief

What is this about?

What did the court decide?

Deepa M.M v. High Court of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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