Allowed

P.Udayakumar v. State of Kerala

Kerala HC11 Nov 2019OP(KAT)/870/2013

Case brief

AI extract

What is this about?

The High Court set aside an irregular appointment made to a non-existent post due to lack of vacancy and qualifying requirements. Petitioner, a retired Trade Instructor, was appointed as Computer Programmer without proper procedure. Court struck back-dating of service and restricted pension calculation to Trade Instructor pay.

What did the court decide?

Appointment held invalid; petitioner deemed retired as Trade Instructor; pension computed on Trade Instructor pay.

P.Udayakumar Vs State of Kerala — Education and Admissions | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN

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THE HONOURABLE MR.JUSTICE V.G.ARUN

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MONDAY, THE 11TH DAY OF NOVEMBER 2019 / 20TH KARTHIKA, 1941

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O.P(KAT).No.870 OF 2013(Z)

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AGAINST THE ORDER IN T.A.2991/2012 DATED 04-06-2012 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM

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PETITIONER/S:

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P.UDAYAKUMAR, S/O.PONNAPPAN PILLAI, COMPUTER PROGRAMMER, M.C.A.DEPARTMENT, COLLEGE OF ENGINEERING, THIRUVANANTHAPURAM, RESIDING AT USHUS VILLA,VRA-12, VAZHUTHOOR, NEYYATTINKARA.P.O, THIRUVANANTHAPURAM DISTRICT-695121.

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BY ADV. SRI.B.MOHANLAL

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RESPONDENT/S:

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1 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, HIGHER EDUCATION (G) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM,PIN-695001.

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2 THE DIRECTOR OF TECHNICAL EDUCATION, EAST FORT.P.O, THIRUVANANTHAPURAM,PIN-695023.

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3 THE PRINCIPAL, COLLEGE OF ENGINEERING, KULATHOOR.P.O, THIRUVANANTHAPURAM, PIN-695583.

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R1 & R2 BY SR. GOVT. PLEADER SRI.ANTONY MUKKATH.

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THIS ORIGINAL PETITION (KERALA ADMINISTRATIVE TRIBUNAL) HAVING BEEN FINALLY HEARD ON 11.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(KAT).870 of 2013

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K.Vinod Chandran & V.G.Arun, JJ.

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O.P(KAT) No.870 of 2013-Z

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Dated this the 11^th day of November, 2019

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JUDGMENT

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K. Vinod Chandran,J:

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A classic case which brings forth nepotism, on

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appointment being made merely on the instructions of the Government, which again should be assumed to be for helping the incumbent.

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2. The petitioner was a Trade Instructor (Foundry) in the Department of Technical Education, qualified to be so appointed. While in service, he acquired Post Graduate Diploma in Computer Application, in first class. The petitioner is said to have been appointed as a Computer Programmer in the College of Engineering, Thiruvananthapuram under Rule 9(a)(i) of the Kerala State and Subordinate Services Rules, 1958 [for brevity “KS&SSR”] as per Exhibit P2 order dated 26.03.1999. In fact, there was no post of Computer Programmer in the CET. Rule 9(a) (i) permits such appointment only in an emergency to fill a vacancy, the recruitment to which would take time. There was no such emergency nor even a vacancy as we will presently see.

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OP(KAT).870 of 2013 - 3 -

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3. It is seen from the order of the Tribunal that when M.C.A. Course was started in CET, a few posts were created for the said Department, including one post of Computer Programmer in 1986. Continuous sanction for the post was being granted from time to time, up to 1991; after which the post itself was not available. It is to this non-existent post that the applicant sought appointment by way of representation before the Government on 23.08.1997. The representation is seen to have been recommended by the Director of Technical Education [for brevity “DTE”] and the Government willingly passed Exhibit P2 order appointing the petitioner as Computer Programmer; which we found earlier would be a clear case of nepotism in appointing a person to a non-existent post. It is also pertinent that when the post of Computer Operator was created in the Department of Technical Education, the qualifications and method of appointment were prescribed as per G.O(P) No.270/88/H.Edn. Dated 27.12.1988. The required qualification was B.Tech in any branch or M.Sc Physics or Mathematics with Certificate in Programming issued by the Computer Society of India. Obviously the petitioner did not have any such qualification.

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4. The learned Counsel for the petitioner takes us through the interim order passed on 04.03.2013, on the

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OP(KAT).870 of 2013 - 4 -

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basis of which the petitioner has been continued. He has retired from service as on 31.03.2016. The learned Counsel also submits that in accordance with the interim order dated 04.03.2013 as also that dated 25.09.2013 (produced as Exhibit P12), Exhibits P13 to P16 orders were passed so as to enable continuance in accordance with the earlier interim order.

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5. We are not bound by the interim order passed on 04.03.2013, which recorded the prima facie opinion of the learned Judges that they were not impressed upon to take a view that the petitioner had got a back-door appointment. We specifically refer to the order of the Tribunal in paragraph 8, which we extract hereunder:

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“8. We considered the rival submissions made at the Bar and also went through the pleadings and materials on record. We notice that by Ext.P2 the Government have appointed the applicant to the post of Computer Programmer without following any procedure prescribed by law. Applications were not invited, Public Service Commission was not consulted, nor candidates from the Employment Exchange were called for. It was also not examined whether there were any other qualified hands working in the department. Merely on the basis of an application submitted by the applicant he has been appointed by the Government. Going by the usual jargon, his appointment can be rightly

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OP(KAT).870 of 2013 - 5 -

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described as a back-door entry. Such appointee has no legal right to continue in the post. The Director of Technical Education is also the applicant's appointment authority as per the Rules. Therefore, the action of the Director posting him to the parent post of Trade Instructor (Foundry) cannot be described as unauthorised or ultra vires . In the counter affidavit filed in this case by the Government, it supports the action of the Director”.

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We agree with the Tribunal and further emphasize that the appointment could not have been made to a non-existent post, for which there was no sanction at the time of appointment. It was only to enable the appointment of the petitioner that the DTE directed the Principal of CET to get a sanction from the Government which, as we noticed earlier, the Government willingly granted. The sanction was only to continue the post and not creation of a post as such; in which event there should have been a regular appointment made. There was nothing to show that there was a line of promotion where Trade Instructors were posted as Computer Programmers. The petitioner also did not have the qualification for the post as required in the DTE.

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6. In the above facts and circumstances, we are inclined to agree with the Tribunal. We take note of the

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OP(KAT).870 of 2013

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fact that the orders produced now before Court also make the grant of benefits subject to the result of the Original Petition (KAT). We make it clear that there can be no pay drawn by the petitioner in excess of his entitlement as a Trade Instructor. If he had been granted a higher pay than that attached to the post of Trade Instructor (Foundry) it shall be recovered. He should also be deemed as having retired from the post of Trade Instructor (Foundry) with increments and higher grades granted in that post and pension should be computed on such last pay drawn and not on any higher pay drawn as Computer Programmer.

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The Original Petition (KAT) is dismissed with the above observation, leaving the parties to suffer their respective costs.

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Sd/K.VINOD CHANDRAN JUDGE

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Sd/V.G.ARUN JUDGE

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vku/-

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OP(KAT).870 of 2013

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT(S) PRODUCED ALONG WITH THE OP(KAT) EXHIBIT P1 THE TRUE COPY OF THE MEMORANDUM OF TRANSFER APPLICATION NO.2991/2012 OF THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM.

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EXHIBITS PRODUCED IN T.A.NO.2991 OF 2012 SHOWN BELOW: EXHIBIT P1 THE TRUE COPY OF THE GOVERNMENT ORDER GO(RT) NO.1060/90/H.EDN. DATED 05/06/1990 TOGETHER WITH THE STATEMENT ANNEXED THERETO. EXHIBIT P2 THE TRUE COPY OF THE GOVERNMENT ORDER GO(RT) NO.351/99/H.EDN. DATED 26/03/1999 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P3 TRUE COPY OF THE LETTER NO.EA 4/15463/98 DATED 07/08/2000 OF THE 2ND RESPONDENT TO THE 3RD RESPONDENT. EXHIBIT P4 THE TRUE COPY OF THE REPRESENTATION DATED 25/06/2003 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT. EXHIBIT P5 THE TRUE COPY OF THE LETTER NO. B3/3406/2003 DATED 30/06/2003 OF THE 3RD RESPONDENT TO THE 2ND RESPONDENT. EXHIBIT P6 THE TRUE COPY OC THE LETTER NO.B3/3406/2003 DATED 01/11/2003 OF THE 3RD RESPONDENT TO THE 2ND RESPONDENT. EXHIBIT P7 THE TRUE COPY OF THE ORDER NO.EB2/5453/2003 DATED 22/01/2004 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P8 THE TRUE COPY OF THE REPRESENTATION DATED 07/07/2006 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT. EXHIBIT P9 THE TRUE COPY OF THE ORDER NO.EB-2/31134/2006 DATED 05/10/2006 ISSUED BY TH 2ND RESPONDENT.

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OP(KAT).870 of 2013

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EXHIBIT P10 TRUE COPY OF THE CERTIFICATE DATED 14/05/1990 ISSUED BY THE UNIVERSITY OF KERALA TO THE APPLICANT. EXHIBIT P11 THE TRUE COPY OF THE CERTIFICATE DATED 30/09/1994 ISSUED BY THE STATE BOARD OF TECHNICAL EDUCATION TO THE APPLICANT. EXHIBIT P12 THE TRUE COPY OF THE LETTER NO.B3/6546/94 DATED 10/10/1994 OF THE PRINCIPAL COLLEGE OF ENGINEERING, THIRUVANANTHAPOURAM TO HE 2ND RESPONDENT. EXHIBIT P13 THE TRUE COPY OF THE REPRESENTATION DATED 05/06/2006 SUBMITTED BY THE APPLICANT TO THE 2ND RESPONDENT. EXHIBIT P14 THE TRUE COPY OF THE LETTER NO.B3/3237/2006 DATED 16/06/2006 OF THE PRINCIPAL, COLLEGE OF ENGINEERING, THIRUVANANTHAPURAM TO THE 2ND RESPONDENT.

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EXHIBITS PRODUCED ALONG WITH THE OP(KAT) EXHIBIT P2 THE TRUE COPY OF THE JUDGMENT IN TA NO.2991/2012 DATED 04/06/2012 OF THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM. EXHIBIT P3 THE TRUE COPY OF THE GO(MS) NO. 269/86/H.EDN. DATED 20/10/1986 ISSUED BY THE GOVERNMENT. EXHIBIT P4 THE TRUE COPY OF THE DRAFT SPECIAL RULES NO.L1/53239/98 DATED 30/05/1998 FORWARDED BY THE 2ND RESPONDENT TO THE GOVERNMENT AND THE GOVERNMENT FILE NO.28062/G3/97/H.EDN. EXHIBIT P5 THE TRUE COPY OF THE GO(MS) NO.86/88/H.EDN. DATED 20/04/1988 ISSUED BY THE GOVERNMENT. EXHIBIT P6 THE TRUE COPY OF THE GO(MS) NO.54/2008/H.EDN. DATED 25/04/2008 ISSUED BY THE GOVERNMENT. EXHIBIT P7 THE TRUE COPY OF THE JUDGMENT DATED 21/11/2006 IN OP NO.16233/1998 OF THIS HON'BLE COURT.

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OP(KAT).870 of 2013

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EXHIBIT P8	THE TRUE COPY OF DATED 12/05/2008	THE GO(RT) NO.720/08/H.EDN ISSUED BY THE GOVERNMENT.
EXHIBIT P9	THE TRUE COPY OF DATED 13/10/1994 RESPONDENT.	THE ORDER NO.DP2/22805/94 ISSUED BY THE 2ND
EXHIBIT P10	THE TRUE COPY OF 03/04/2013 SUBMIT BEFORE THE 1ST RE	THE REPRESENTATION DATED TED BY THE PETITIONER SPONDENT.
EXHIBIT P11	TRUE COPY OF THE 20/06/2013 SUBMIT BEFORE THE 1ST RE	REPRESENTATION DATED TED BY THE PETITIONER SPONDENT.
EXHIBIT P12	THE TRUE COPY OF 25/09/2013 IN IA NO.870/2013 OF TH	THE INTERIM ORDER DATED NO. 12352/2013 IN OP(KAT) IS HON'BLE COURT.
EXHIBIT P13	THE TRUE COPY OF (RT)NO.623/2014/H ISSUED BY THE 1ST	THE GO .EDN. DATED 21/03/2014 RESPONDENT.
EXHIBIT P14	THE TRUE COPY OF EB2/3775/2004 DAT THE 2ND RESPONDEN	THE ORDER NO. ED 04/11/2014 PASSED BY T.
EXHIBIT P15	THE TRUE COPY OF DATED 24/11/2014 RESPONDENT.	THE ORDER NO.B3-5632/14 ISSUED BY THE 3RD
EXHIBIT P16	THE TRUE COPY OF DATED 24/11/2014 RESPONDENT.	THE ORDER NO.B3/5632/14 ISSUED BY THE 3RD
EXHIBIT P17	THE TRUE COPY OF DATED 12/04/2016 RESPONDENT.	THE ORDER NO.B3/485/16/CET ISSUED BY THE 3RD
EXHIBIT P18	THE TRUE COPY OF NO.PR.2101660627/ 30/06/2016 ISSUED GENERAL (A&E) THI	THE ORDER P10/1/1016296478 DATED BY THE ACCOUNTANT RUVANANTHAPURAM.

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[TRUE COPY]

P.Udayakumar v. State of Kerala

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P.Udayakumar v. State of Kerala

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