IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
WEDNESDAY, THE 10TH DAY OF AUGUST 2022 / 19TH SRAVANA, 1944
WP(C) NO.9477 OF 2022
PETITIONERS :-
1 SONIYA S, AGED 38 YEARS
D/O.A.R.SIVADAS, RESIDING AT NJRA 224,
NORTH JANATHA, PALARIVATTOM, PIN - 682 025
(RANK NUMBER 3327)
2 KARTHIKA SREEKUMAR, AGED 29 YEARS
D/O.SREEKUMAR, RESIDING AT KARTHIKA, MUZHANGODI,
THODIYOOR P.O, KOLLAM, PIN - 690 523
(RANK NUMBER 2944)
BY ADVS.
S.SABARINADH
INDULEKHA JOSEPH
RESPONDENTS :-
1 STATE OF KERALA THROUGH ITS PLANNING AND
ECONOMIC AFFAIRS DEPARTMENT,
THIRUVANANTHAPURAM - 695 001 REPRESENTED BY ITS
ADDITIONAL CHIEF SECRETARY
2 KERALA PUBLIC SERVICE COMMISSION
THULASI HILLS, PATTOM PALACE P.O,
THIRUVANANTHAPURAM, PIN - 695 004
REPRESENTED BY ITS SECRETARY
3 KERALA STATE ELECTRICITY BOARD LTD.
VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM,
PIN - 695 004, REPRESENTED BY ITS
CHAIRMAN AND MANAGING DIRECTOR
BY ADVS.
SMT.SABEENA P. ISMAIL, GP
SRI.K.S.ANIL, SC, KSEB
SRI.ASOK M.CHERIAN
SRI.P.C.SASIDHARAN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 18.07.2022, THE COURT ON 10.08.2022 DELIVERED THE
FOLLOWING:
WP(C) NO.9477 OF 2022
-: 2 :-
JUDGMENT
Dated this the 10th day of August, 2022 This writ petition is filed seeking the following reliefs :-
"i. Declare that, Clause 30(a) of Exhibit P3 order is unconstitutional.
ii. Issue a writ, order or direction in the nature of certiorari quashing/striking off Clause 30(a) of Exhibit P3 order.
iii. Declare that, Rule 4 of the Public Service Commission (Additional Functions) (Consultation) Rules, 1966 is ultra vires the Public Service Commission (Additional Functions) Act, 1963 and Articles 14 & 16 and is therefore unconstitutional.
iv. Issue a writ, order or direction in the nature of certiorari striking off Rule 4 of the Public Service Commission (Additional Functions) (Consultation) Rules, 1966.
v. Declare that, the Last Proviso to Rule 2A of the Kerala Public Service Commission (Consultation by Corporations and Companies) Rules, 1971 is ultra vires Rule 2A, the Public Service Commission (Additional Functions as respect certain Corporations and Companies) Act, 1970 and Articles 14 & 16 and is therefore unconstitutional.
vi. Issue a writ, order or direction in the nature of certiorari striking off the Last Proviso to Rule 2A of the Kerala Public Service Commission (Consultation by Corporations and Companies) Rules, 1971.
vii. Issue a writ, order or direction in the nature of Mandamus commanding the 3rd respondent to report all vacancies without setting apart any further WP(C) NO.9477 OF 2022 -: 3 :- vacancies for compassionate appointees, within a time frame to be stipulated by this Hon'ble Court. viii. Issue a writ, order or direction in the nature of Mandamus commanding the 3rd respondent to report 248 vacancies in which appointment is made through working arrangement and consequently direct 2 nd respondent to advice to those 248 vacancies, within a time frame to be stipulated by this Hon'ble Court."
2. Heard the learned counsel for the petitioners, the learned Government Pleader and the learned Standing Counsel appearing for the Kerala Public Service Commission (for short, 'the KPSC') as well as the learned Standing Counsel appearing for the Kerala State Electricity Board Limited (for short, 'the KSEBL').
3. The petitioners are persons included in Ext.P2 ranked list published pursuant to Ext.P1 notification dated 13.10.2017. It is contended that though the notification specifically provided for filling up the posts of Junior Assistant/Cashier/Assistant Grade II in the the KSEBL, the 3 rd respondent has not reported the existing vacancies to the 2 nd respondent for filling up from Ext.P2 ranked list. It is contended that by Ext.P3 Government Order, 50% of total vacancies available for direct recruitment are set apart for WP(C) NO.9477 OF 2022 -: 4 :- compassionate appointment and that the said exercise amounts to a violation of the rights of persons like the petitioners for public appointment guaranteed by Article 16 of the Constitution. It is contended that 100% of the post of Office Attendants are being filled up by compassionate appointment and that the higher posts are also now sought to be so filled up, defeating the rights of the persons included in the ranked list.
4. The essential contention raised by the petitioners is that several posts of Junior Assistant/Cashier in the KSEBL are being filled up through compassionate appointment by appointing the dependents of deceased employees and even disabled employees and that this results in denial of appointment through direct recruitment. Further, it is contended that 248 vacancies of Junior Assistant/ Cashier are filled up by work arrangement/deputation as evident from Ext.P14, which is a reply given by the Minister in the Legislative Assembly. It is further contended that the cadre strength of Cashier/Junior Assistant in the KSEBL is 100, out of which, most of the posts are held by persons appointed WP(C) NO.9477 OF 2022 -: 5 :- through compassionate appointment. On these contentions, the petitioners seek the prayers as sought for.
5. A detailed counter affidavit has been placed on record by the 3rd respondent. It is specifically contended that the KSEBL had not reported any vacancies for the post of Junior Assistant/ Cashier to the KPSC for issuing notification. However, when the notification was issued by the KPSC for appointment to equivalent posts in other public sector undertakings, Thrissur Corporation, etc., it is stated that the name of KSEBL had been erroneously included by the KPSC in the notification. The contention that there are large number of promotions from the post of Junior Assistant/ Cashier and that the resultant vacancies have not been reported to the KPSC are incorrect. It is stated that pursuant to the interim order dated 25.8.2017 in the earlier round of writ petitions, all available vacancies had been reported to the KPSC and appointments had been made from an earlier ranked list. It is submitted that pursuant to the judgment in W.P.(C) No.38794/2015 and connected cases, advice and appointments were made against all available vacancies from the earlier ranked list and that no more vacancies are WP(C) NO.9477 OF 2022 -: 6 :- available for direct recruitment in the KSEBL. It is further contended in paragraphs 16 and 19 as follows :-
"16. Though Single shift system in cash collection had been implemented, corresponding reduction in the sanctioned strength of 1410, which was fixed during 2002, was necessitated leading to redundancy of Junior Assistant/ Cashier in KSEBL. This necessitated further reduction of sanctioned strength. The Board, vide its Full Time Directors Meeting held on 01-10-2021, decided to implement the single shift system in all the Electrical Sections where monthly transactions come below 6000, apart from the above 249 Electrical Sections where single shift cash collection had already been introduced. This will again reduce the requirement of cashier places considerably.
17. xxxxx
18. xxxxx
19. It is also submitted that, with the technological advancement and the implementations thereupon, the quantum of work assigned in the Electrical Section Offices especially in the Revenue Collection matters have shrunk considerably. It is again submitted that now a days KSEBL is going in tune with adoption as well implementation of several technological advancements in its different spheres and as a result many facilities for new modes of payment such as Bank transfer, online payment etc. have been introduced in the field of revenue collection. Thereby the quantum of work of the Cashiers have also diminished considerably."
WP(C) NO.9477 OF 2022 -: 7 :- It is also submitted that compassionate appointment is a social security measure which has been implemented in the KSEBL due to the specific nature of the duties involved and the frequent deaths on duty happening due to electrocution and other reasons and that the petitioners have no right whatsoever to raise allegations in view of the fact that no vacancy set apart for direct recruitment has been filled up through compassionate appointment.
6. A reply affidavit has also been filed by the petitioners and the common judgment dated 6.1.2020 in W.P. (C) No.38794/ 2015 and connected cases has been produced.
7. The 1st respondent has also placed a counter affidavit on record stating that the KSEBL has not reported any vacancies to the KPSC and that the notification mentioning the KSEBL also is a mistake. It is submitted that Ext.P3 Government Order does not set apart any specific percentage of posts for compassionate appointment in public sector undertakings. It is stated that the public sector undertakings have their own service rules/Articles of Association for regulating compassionate appointment taking into account the nature of their business and the risk involved. WP(C) NO.9477 OF 2022 -: 8 :- It is stated that there are no vacancies set apart for compassionate appointment and there are no reserved vacancies and that the contention that 50% of total vacancies for direct recruitment is set apart for compassionate appointment is incorrect. It is further submitted that as per the report of the KSEBL, 80% of the post of Junior Assistant/Cashier is filled up through direct recruitment and that only 20% of the in service quota vacancies are earmarked for by-transfer appointment from lower grade employees, sports quota and compassionate appointment. It is stated that the appointments against the 20% quota does not in any way affect the KPSC postings and that no vacancies in excess of the quota prescribed will be filled up by other methods of appointment. It is submitted that in view of the fact that no vacancies have been reported by the KSEBL to the KPSC, the petitioners who are included in the ranked list have no claim for appointment.
8. The learned counsel for the petitioners places reliance on the decisions of the Apex Court reported in Indra Sawhney and others v. Union of India and others [1992 WP(C) NO.9477 OF 2022 -: 9 :- KHC 725] and M. R. Balaji and others v. Stare of Mysore [AIR 1963 SC 649].
9. The learned Government Pleader places reliance on the judgment of the Apex Court in Director General of Posts and others v. K. Chandrashekar Rao [2012 KHC 4750 : (2013) 3 SCC 310] in support of the contention that though compassionate appointment is not a regular method of appointment and is only an exception to the general rule that appointments to public posts have to be made on the basis of an unbiased selection process, where there is a policy for granting compassionate appointment a dependent member of the family of a deceased employee is entitled to apply for compassionate appointment and to seek the consideration of the application in accordance with the terms and conditions which are prescribed by the State. It is contended that a person included in the ranked list to which no vacancies were reported at all has no locus standi to raise a contention against compassionate appointment being made by public sector undertakings as a part of the general policy of the State.
WP(C) NO.9477 OF 2022 -: 10 :-
10. I have considered the contentions advanced on all sides. The major contention raised by the petitioners is to the effect that the reservation of 50% vacancies set apart for direct recruitment for compassionate appointment by Ext.P3 is illegal and unsustainable. On a close reading of Ext.P3 Government Order, I am of the opinion that there is no such prescription contained in Ext.P3 at all. Ext.P3 specifically states that appointment under the compassionate appointment scheme will be limited to class-III, class-IV, worker and skilled worker to which direct recruitment is one of the methods of appointment. Clause 30 of Ext.P3 only states that the appointment under compassionate employment is to be set off against direct recruitment vacancies and has to be confined within 50% of the total vacancies for direct recruitment.
11. The specific contention of the petitioners is that since the petitioners stand included in a list prepared for appointment to the post of Junior Assistant/Cashier in the KSEBL as well, the setting apart of 50% of the vacancies for direct recruitment in the KSEBL for compassionate appointment is illegal and infringes on the fundamental rights of the petitioners. The counter affidavit of the KSEBL WP(C) NO.9477 OF 2022 -: 11 :- discloses two facts. One, that no vacancies were reported by the KSEBL to the KPSC for the conduct of a selection to the post of Junior Assistant/Cashier. This would mean that the inclusion of the KSEBL in Ext.P1 notification and Ext.P2 list is an error and that no rights can flow from the same. Secondly, it is specifically contended in the counter affidavit filed by the KSEBL that the recruitment to the post of Junior Assistant/Cashier is done in the ratio 20 : 80 and that 80% of the posts are reserved to be filled up by direct recruitment. It is contended that none of the posts which are set apart for direct recruitment will be filled up by compassionate appointment or by any other method. If that be so, the contention of the petitioners that their rights are infringed by Ext.P3 Government Order cannot be accepted in the light of the specific contentions raised by the Government and the KSEBL. Since the KSEBL has not reported any vacancies of Junior Assistant/Cashier to the KPSC for conduct of a selection process, the contention of the petitioners that the existing vacancies ought to be reported to the KPSC for advice from Ext.P2 list is completely untenable. Further, since it is contended by the KPSC that 80% of the post of Junior WP(C) NO.9477 OF 2022 -: 12 :- Assistant/Cashier are set apart to be filled up through direct recruitment and that no appointment is being made by any other method in the vacancies being set apart for direct recruitment, I am of the opinion that this Court cannot compel the KSEBL to report any vacancies to the KPSC, if they do not intend to fill up the vacancies. The petitioners who are included in a list to which no vacancies were reported can have no claim to contend either that compassionate appointment scheme should be discontinued in the KSEBL or that all vacancies should be reported to the KPSC.
12. The challenge against Rule 4 of the Kerala Public Service Commission (Additional Functions) (Consultation) Rules, 1966 as well as Rule 2A of the Kerala Public Service Commission (Consultation by Corporations and Companies) Rules, 1971 are also raised on the ground that the said Rules infringe on the constitutional and legal rights of the petitioners who are included in the ranked list. The locus standi as pleaded in the writ petition to challenge the said provisions is that the petitioners stand included in a ranked list prepared for appointment to the post of Junior Assistant/Cashier/Assistant Grade II in the KSEBL. Once it is WP(C) NO.9477 OF 2022 -: 13 :- contended by the KSEBL that no vacancies were reported to the KPSC and once the KPSC admits this fact, the petitioners can have no legitimate right to challenge the statutory provisions since no legal or constitutional/legal right of the petitioners stand affected by it. The petitioners are not persons aggrieved in any manner by the provisions and therefore, the question as to the legality or otherwise of the provisions do not require a consideration in a challenge raised by the petitioners who have absolutely no locus standi to do so.
In the above view of the matter, I am of the opinion that none of the prayers sought for in the writ petition can be granted. The writ petition fails and the same is, accordingly, dismissed.
Sd/-
ANU SIVARAMAN JUDGE Jvt/23.7.2022 WP(C) NO.9477 OF 2022 -: 14 :- APPENDIX OF WP(C) 9477/2022 PETITIONER EXHIBITS Exhibit P1 A TRUE PHOTOCOPY OF THE NOTIFICATION, DATED 13.10.2017 - INVITING APPLICATIONS FOR CATEGORY NO. 399/2017 IN KSFE LTD, KSEB LTD, KMML LTD, KSCDC, MALABAR CEMENTS ETC. ISSUED BY THE 2ND RESPONDENT Exhibit P2:- A TRUE PHOTOCOPY OF THE RELEVANT EXTRACT OF RANK LIST NO. 649/19/ROQ [IN CATEGORY NO.399/2017] EFFECTIVE FROM 31.12.2019 PUBLISHED BY THE 2ND RESPONDENT Exhibit P3 A TRUE PHOTOCOPY OF THE ORDER NO. G.O.(P) NO.32/2007/PLG DATED 07.06.2007 ISSUED BY THE 1ST RESPONDENT Exhibit P4 A TRUE PHOTOCOPY OF THE COMMUNICATION NO.KEEC/GL/2022/10 DATED 09.02.2022 OF THE WORKING PRESIDENT OF KERALA ELECTRICITY EMPLOYEES' CONFEDERATION INTUC TO THE CHAIRMAN AND MANAGING DIRECTOR OF 3RD RESPONDENT Exhibit P5 A TRUE PHOTOCOPY OF THE ORDER BY NO.B.O. (FTD) NO.325/2021 (ESTT II 5315/2020) DATED 06.05.2021 ISSUED BY THE FULL TIME DIRECTORS OF THE 3RD RESPONDENT Exhibit P6 A TRUE PHOTOCOPY OF THE ORDER BY NO.B.O. (FTD) NO.355/2021 (ESTT II 5781/2020) DATED 14.05.2021 ISSUED BY THE FULL TIME DIRECTORS OF THE 3RD RESPONDENT Exhibit P7:- A TRUE PHOTOCOPY OF THE ORDER BY NO.B.O. (FTD) NO.385/2021 (ESTT II 14/2021) DATED 25.05.2021 ISSUED BY THE FULL TIME DIRECTORS OF THE 3RD RESPONDENT Exhibit P8:- A TRUE PHOTOCOPY OF THE ORDER BY NO.B.O. (FTD) NO.387/2021 (ESTT II 862/2021) DATED 25.05.2021 ISSUED BY THE FULL TIME DIRECTORS OF THE 3RD RESPONDENT WP(C) NO.9477 OF 2022 -: 15 :- Exhibit P9:- A TRUE PHOTOCOPY OF THE ORDER BY NO.B.O. (FTD) NO.388/2021 (ESTT II 1590/2021) DATED 25.05.2021 ISSUED BY THE FULL TIME DIRECTORS OF THE 3RD RESPONDENT Exhibit P10:- A TRUE PHOTOCOPY OF THE ORDER BY NO.B.O. (FTD) NO.885/2021 (ESTT II 8101/2021) DATED 24.11.2021 ISSUED BY THE FULL TIME DIRECTORS OF THE 3RD RESPONDENT Exhibit P11:- A TRUE PHOTOCOPY OF THE RELEVANT EXTRACT OF ORDER NO.EB3/O.A.-10%/PROMOTION/2021 DATED 15.02.2021 ISSUED BY THE CHIEF ENGINEER (HRM) OF THE 3RD RESPONDENT Exhibit P12:- A TRUE PHOTOCOPY OF THE FORM OF APPLICATION FOR APPOINTMENT UNDER THE EMPLOYMENT ASSISTANCE SCHEME TO THE DEPENDENTS OF EMPLOYEES DYING
-IN-HARNESS/PERMANENTLY DISABLED UNDER REGULATION 9(2) Exhibit P13:- A TRUE PHOTOCOPY OF THE ORDER BY NO.B.O. (FTD) NO.26/2019 (PS1(A)1176/2017) DATED 14.01.2019 ISSUED BY THE FULL TIME DIRECTORS OF THE 3RD RESPONDENT Exhibit P14:- A TRUE PHOTOCOPY OF THE RELEVANT EXTRACT OF LEGISLATIVE PROCEEDINGS OF THE KERALA LEGISLATIVE ASSEMBLY DATED 22.07.2021 Exhibit P15:- A TRUE PHOTOCOPY OF THE RTI APPLICATION DATED 12.02.2021 SUBMITTED BY MR.RAJESH G. AND ITS REPLY DATED 15.03.2021 ISSUED BY THE STATE PUBLIC INFORMATION OFFICER Exhibit P16:- A TRUE PHOTOCOPY OF THE RTI APPLICATION DATED 31.01.2022 SUBMITTED BY SMT. SARANYA GOVIND S. AND ITS REPLY DATED 28.02.2022 ISSUED BY THE STATE PUBLIC INFORMATION OFFICER Exhibit P17:- A TRUE PHOTOCOPY OF THE DETAILED TABLE PREPARED BY THE PETITIONERS DEPICTING THE EXTENT OF PARTICIPATION OF PSC HANDS, COMPASSIONATE APPOINTEES, SPORTS QUOTA APPOINTEES AND WORKING ARRANGEMENT STAFF IN THE POST OF JUNIOR WP(C) NO.9477 OF 2022 -: 16 :- ASSISTANT/CASHIER.
Exhibit P18:- A TRUE PHOTOCOPY OF THE G.O.(MS) NO. 26/2014/PD DATED 14.08.2014 ISSUED BY THE GOVERNMENT Exhibit P19 A True Photocopy of the Common Judgment, dated 06.01.2020, rendered by this Hon'ble Court in W.P.(C). Nos. 38794 of 2015, 32887 of 2016 and 23320, 25052, 29809 of 2017