Kerala High Court
Seena K.T vs Seena K.T on 13 January, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MR. JUSTICE T.R.RAVI
WEDNESDAY, THE 13TH DAY OF JANUARY 2021 / 23TH POUSHA, 1942
OP(KAT).No.28 OF 2020
AGAINST THE ORDER IN OA 2660/2016 OF KERALA ADMINISTRATIVE
TRIBUNAL, THIRUVANANTHAPURAM
PETITIONER/3RD RESPONDENT IN OA:
SEENA K.T
AGED 44 YEARS
DEMONSTRATOR,(COMPUTER HARDWARE AND MAINTENANCE),
GOVERNMENT POLYTECHNIC COLLEGE,
CHELAKKARA,THRISSUR,
PIN-680 586.(NOW WORKING AT GOVERNMENT
POLYTECHNIC COLLEGE,
CHERTHALA,ALAPPUZHA DISTRICT).
BY ADVS.
SRI.O.D.SIVADAS
SMT.K.S.SAMEERA
RESPONDENTS/APPLICANT AND RESPONDENTS 1 AND 2 IN OA:
1 PRADEEP KUMAR M
S/O.KUMARAN,AGED 46 YEARS,
TRADE INSTRUCTOR GRADE II(COMPUTER SCIENCE AND
ENGINEERING DEPARTMENT),
GOVERNMENT ENGINEERING COLLEGE,
SREEKRISHNAPURAM,PALAKKAD DISTRICT,
PIN-678 633.
2 THE DIRECTOR OF TECHNICAL EDUCATION,
DIRECTORATE OF TECHNICAL EDUCATION,
PADMAVILASOM ROAD,FORT P.O.,
THIRUVANANTHAPURAM,PIN-695 023.
3 STATE OF KERALA,
REPRESENTED BY ITS SECRETARY TO GOVERNMENT,
HIGH EDUCATION DEPARTMENT,GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM,PIN-695 001.
R2-3 SRI.B.UNNIKRISHNA KAIMAL, GOVT.PLEADER
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN
FINALLY HEARD ON 13.01.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
OP(KAT)No.28/2020 -2-
ALEXANDER THOMAS & T.R. RAVI, JJ.
------------------------------------------------
O.P.(KAT) No.28 of 2020
(Arising out of order dated 28.11.2019 in O.A.No.2660/2016 of
Kerala Administrative Tribunal, Thiruvananthapuram)
--------------------------------------------------
Dated this the 13th day of January, 2021
JUDGMENT
T.R.RAVI, J.
The original petition has been filed challenging the order dated
28.11.2019 in O.A.No.2660 of 2016 on the file of the Kerala Administrative
Tribunal, Thiruvananthapuram (hereinafter referred to as the Tribunal).
The petitioner was the 3rd respondent in the original application before the
Tribunal and the 1st respondent was the applicant.
2. Heard Sri O.D. Sivadas on behalf of the petitioner and
Sri B.Unnikrishna Kaimal, Government Pleader on behalf of respondents 2
and 3. Even though notice has been served on the 1 st respondent, he has
not chosen to appear either personally or through counsel.
3. The 1st respondent had filed the original application praying for
a direction to the 2nd respondent to review and set aside the promotion
granted to the petitioner to the post of Demonstrator (Computer Hardware
and Maintenance) [for short, Demonstrator (CHM)] as per Annexure A2,
and to promote the 1st respondent to the said vacancy. The 1 st respondent
contended that he was appointed as Trade Instructor on 26.06.2000, that
he availed leave without allowance from 10.07.2000 to 03.03.2009, that he
rejoined the post on 04.03.2009 and that his probation was declared as
satisfactory on 04.03.2011. He further submits that he acquired the
qualification for promotion to the next higher post of Demonstrator on
12.06.2015. According to him, Annexure A2 order dated 25.04.2016,
whereby the petitioner was promoted to the post of Demonstrator, was
issued overlooking the fact that the 1st respondent who was senior to the
petitioner and eligible for promotion, was available. The petitioner on the
other hand, contends that she was appointed initially as a Tradesman and
after promotions, she was appointed as Trade Instructor Gr.II on
20.09.2012, that her probation was declared in the post on 24.10.2013 and
that she was qualified for further promotion from that date. She submits
that as per Annexure A1 provisional seniority list of Trade Instructors in
various trades, who have acquired Diploma in Engineering/Technology and
are eligible for promotion as Demonstrator, she is the only person included
in the trade Computer Hardware and Maintenance. It is further submitted
that she was promoted to a vacancy that arose on 10.06.2015, on which
date, the 1st respondent was not eligible for promotion.
4. Before the Tribunal, the official respondents who were directed
to file statements showing the details of vacancy against which the
petitioner was promoted, merely filed a statement stating that the vacancy
of Demonstrator arose on 09.06.2015 on transfer of one Sri M.Arun to
GPTC, Kaduthuruthy. Thereafter, by interim order dated 22.06.2017, the
Tribunal sought further specification on the aspect, whereupon, a reply
statement was filed by the petitioner stating that the vacancy arose on
10.06.2015. It is seen from the order of the Tribunal that after several
adjournments, on 29.06.2018, the Government Pleader had submitted that
the promotion given to the petitioner was actually in a non-existing
vacancy. Finally, the Tribunal by its order dated 28.11.2019 allowed the
original application holding that the appointment of the petitioner was
effected against a non-existing vacancy and that the same is set aside. It
was further ordered that the 1 st respondent is entitled to be preferred for
any vacancy that would arise after 27.07.2015. A reading of the order of
the Tribunal would clearly show that official respondents had not placed
the necessary facts before the Tribunal and the Tribunal has decided the
case based on an oral submission made by the Government Pleader that the
petitioner was promoted to a non-existing vacancy. It is aggrieved by the
above order that the petitioner is before us.
5. Even before this Court, the absence of materials continued.
Initially, a statement was filed on behalf of the 2 nd respondent as directed
by this Court on 16.06.2020, which did not contain any relevant facts
regarding the number of posts or vacancies in the post of Demonstrator
(CHM). The statement only reiterated that the petitioner was promoted to a
non-existing vacancy and that based on the order of the Tribunal, she has
been reverted. Thereafter, as further directed by this Court on 22.10.2020,
another statement was filed on 10.11.2020 producing Annexure R2(a) to
Annexure R2(e). It has been stated in paragraph 2 of the statement that
the total number of sanctioned posts in the post of Demonstrator (CHM) in
Government Polytechnic Colleges are 9. The details of the Government
orders whereby the said posts were sanctioned has been shown in a tabular
form, from which it is discernible that the ninth post came into existence on
the basis of GO (Ms) No.167/2014/H.Edn. dated 22.04.2014. It is stated
further that as per the Kerala Technical Education Subordinate Special
Rules, which was issued on 12.10.2012, appointment to the post of
Demonstrator is to be by appointment by transfer and by direct
recruitment in the ratio of 1:1. It is further stated that after the
implementation of the Special Rules, 4 persons were appointed by transfer
to the post of Demonstrator (CHM) as per proceedings dated 23.07.2013.
However, a copy of the said proceedings is not forthcoming. It is stated
that three persons were holding the posts on direct recruitment and one
post is to be set apart for NCA (Low vision) and that prior to the coming
into force of the Special Rules, the posts of Demonstrator (CHM) and
Demonstrator (Computer Engineering) were being filled up by incumbents
from both the branches. It is further stated that Sri S.Jayakumar, appointed
by transfer in the post of Computer Engineering and Sri M.Arun appointed
as Demonstrator (Computer Engineering) under dying-in-harness
scheme(which is direct recruitment), who were working in the Computer
Engineering Branch, were actually persons having diploma in Computer
Hardware Maintenance. However, it can be seen from Ext.P6 dated
25.07.2007 that the appointment of Sri M.Arun was as Demonstrator in
Computer Engineering and from Ext.P7 dated 17.01.2011, that the
appointment of Sri S.Jayakumar who was working as Trade Instructor in
Information Technology branch, as Demonstrator, was to the branch of
Computer Engineering. As such, it may not be possible to decide on the
persons holding office as Demonstrator (CHM), merely based on their
qualifications. It would be necessary also to look into the orders by which
they were appointed to the post.
6. Since the 2nd statement was also not free from confusion, we
had directed the official respondents to file a statement clarifying the entire
aspects. Thereafter, an additional statement was filed on 12.01.2020
wherein it is reiterated that total number of posts sanctioned for
Demonstrator (CHM) was 9, three such vacancies were occupied by
working arrangement and that one vacancy is set apart for direct
recruitment NCA (Low vision). It is stated that out of 9 posts, 8 posts were
already filled, 5 by transfer promotion and 3 by direct recruitment and that
there is no regular vacancy to accommodate the petitioner in the post of
Demonstrator (CHM). We are constrained to state that even the third
statement does not clarify the factual position.
7. On 12.01.2021, the petitioner has filed a reply affidavit
producing Exts.P5 to P10. Ext.P5 is the order dated 02.02.2016 whereby
the representation submitted by the petitioner for considering her towards
two vacancies in the post of Demonstrator (CHM) was rejected for the
reason that there are no vacancies. However, the order clearly states that
the total strength of Demonstrators in CHM is 11. As per the order, 7 posts
were filled up by transfer and 4 by direct recruitment. Since there was a
requirement of maintaining 1:1 ratio, only 6 posts would have been
available for transfer appointments, which is the reason why the order said
that there is no vacancy to accommodate the petitioner by transfer. The
order however said that since she is the only person who has the required
qualification to be promoted, she will be considered in the next arising
vacancy. It is thereafter that the petitioner was promoted on 25.04.2016, as
is seen from Annexure R2(e).
8. Ext.P7 produced along with the reply shows that three persons
including Sri S.Jayakumar, were appointed by transfer as Demonstrator
(Computer Engineering) and were posted to the GPTC, Thrikkarippur,
GPTC, Kasargod and Government Engineering College, Painavu. It is to be
noted that going by the details of sanctioned posts contained in the
statement filed by the official respondents, none of the above colleges had
the post of Demonstrator (CHM). As such it is evident that all the three
persons were appointed to the post of Demonstrator (Computer
Engineering). The fact that Sri S.Jayakumar was treated as Demonstrator
in Computer Engineering is further evident from Ext.P8 dated 23.10.2013,
whereby he was transferred and posted at GPTC, Punalur. From the
available records, it is evident that only four persons were appointed by
transfer to the post of Demonstrator (CHM) as stated in paragraph 3 of the
additional statement filed by the 2 nd respondent on 10.11.2020, i.e.,
Sri S.Arun , Sri P.R.Anilal , Sri V.A.Jayaprasad and Sri S.Shyam Kumar.
The suggestions contained in the statement that Sri S.Jayakumar and
Sri M.Arun who were appointed to the post of Demonstrator (Computer
Engineering) are to be treated as persons coming under the Computer
Hardware Maintenance branch does not appeal to us, since their specific
appointments were to another branch and they were being transferred and
posted to Government Polytechnics handling the said branches. We are
inclined to accept the contention of the petitioner that she was appointed to
a vacancy in the post of Demonstrator (CHM), which arose on 10.06.2015
due to transfer of Sri M.Arun. It may be correct to say that a transfer alone,
in the absence of any other factor, may not result in creating a vacancy.
However, there are additional factors available in this case which support
our conclusion. Admittedly, a vacancy in the post of Demonstrator (CHM)
in Government Polytechnic College, Chelakkara occurred with effect from
10.06.2015 (see paragraph 6 of additional statement dated 10.11.2020).
The said post is a post which is sanctioned as one under Demonstrator
(CHM), as per G.O.(MS)No.18/2001/H.Edn. dated 15.02.2011 (refer
paragraph 2 of additional statement dated 10.11.2020). Going by the
admitted facts in the statements four persons were promoted as
Demonstrators (CHM) on 23.07.2013, which were the 4 vacancies available
for appointment by transfer, in the ratio of 1:1, out of the total number of 8
posts. It was thereafter that the ninth post was sanctioned on 22.04.2014
on which day, admittedly, there were only four persons who had been
appointed by transfer to the post of Demonstrator (CHM). That is to say, a
post became available for appointment by transfer by virtue of the sanction
given on 22.04.2014. Admittedly, no person was appointed to the above
said post by appointment by transfer. While so, the vacancy in the post of
Demonstrator (CHM) in Government Polytechnic College, Chelakkara
occurred with effect from 10.06.2015, and a post physically became
available to be filled up on that date. The only appointment by transfer,
after the creation of the post on 22.4.2014 and the transfer on 10.6.2015, is
that of the petitioner, on 25.4.2016. In the above circumstances, we are
unable to comprehend the submission made on behalf of the official
respondents before the Tribunal that the petitioner was appointed to a non-
existing vacancy. Since the entire order of the Tribunal is based on the
above submission, we find that the said finding is not sustainable either on
facts or in law.
9. We hence are of the considered opinion that the order dated
28.11.2019 in O.A.No.2660 of 2016 of the Kerala Administrative Tribunal is
not in accordance with law and is rendered on incorrect facts and thus
liable to be interfered with and we therefore set aside the same.
Consequently, O.A.No.2660 of 2016 is dismissed. Ext.P4 order dated
17.01.2020 whereby the order dated 25.04.2016 promoting the petitioner,
was cancelled in purported compliance with the directions issued in the
impugned order of the Tribunal, is also quashed.
The original petition is disposed of as above. In the circumstances of
the case, there will be no order as to costs.
Sd/-
ALEXANDER THOMAS, JUDGE
Sd/-
T.R. RAVI, JUDGE
dsn
APPENDIX
PETITIONER'S EXTS:
EXT.P1: TRUE COPY OF ORDER DT.28.11.2019 IN
O.A.No.2660/2016 ON THE FILE OF THE KERALA
ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM.
EXT.P2: TRUE COPY OF OA No.2660/2016 DT.30.11.2016 ON
THE FILE OF THE KERALA ADMINISTRATIVE
TRIBUNAL, THIRUVANANTHAPURAM ALONG WITH
ANNEXURES.
ANNEXURES:
EXT.-P2(A1): TRUE COPY OF CIRCULAR NO.EG3-28472/13
DT.21.11.2013 OF THE DIRECTOR OF TECHNICAL
EDUCATION.
EXT.-P2(A2): TRUE COPY OF ORDER No.EG-4-33240/14/DTE
DT.25.4.2016 OF THE DIRECTOR OF TECHNICAL
EDUCATION.
EXT.-P2(A3): TRUE COPY OF THE QUESTION DT.26.6.2015 UNDER
THE RIGHT TO INFORMATION ACT.
EXT.-P2(A4): TRUE COPY OF THE ANSWERS UNDER THE RIGHT TO
INFORMATION ACT DATED 27.7.2015 FURNISHED BY
THE STATE PUBLIC INFORMATION OFFICER,
TECHNICAL EDUCATION DEPARTMENT.
EXT.-P2(A5): TRUE COPY OF THE QUESTION DT.3.6.2015 OF THE
APPLICANT UNDER THE RIGHT TO INFORMATION ACT
AND ANSWERS THERETO.
EXT.-P2(A6): TRUE COPY OF THE REPRESENTATION DT.4.6.2016
OF THE APPLICANT.
EXT.P3: TRUE COPY OF THE REPLY STATEMENT DT.10.5.2018
FILED BY THE PETITONER IN OA.No.2660/2016.
EXT.P4: TRUE COPY OF ORDER DT.17.1.2020
No.EC4/43935/16/DTE ISSUED BY THE 2ND
RESPONDENT.
EXT.P5: TRUE COPY OF ORDER DT.22.2.2016 ISSUED BY THE
2ND RESPONDENT.
EXT.P6: TRUE COPY OF ORDER DT.25.7.2007 ISSUED BY THE
2ND RESPONDENT.
EXT.P7: TRUE COPY OF ORDER DT.17.1.2011 ISSUED BY THE
2ND RESPONDENT.
EXT.P8: TRUE COPY OF ORDER DT.23.10.2013 ISSUED BY
THE 2ND RESPONDENT.
EXT.P9: TRUE COPY OF RELEVANT PORTION OF THE
GRADATION LIST DT.28.3.2018 ISSUED BY THE 2ND
RESPONDENT.
EXT.P10: TRUE COPY OF RELEVANT PORTION OF THE
GRADATION LIST DT.7.7.2019 ISSUED BY THE 2ND
RESPONDENT.
RESPONDENT'S ANNEXURES:
ANNEXURE R2(A): TRUE PHOTOCOPY OF GO(MS)No.167/2014/H.EDN.
DT.22.4.2014.
ANNEXURE R2(B): TRUE COPY OF ORDER No.EC4/17990/14/DTE
DT.4.6.2014.
ANNEXURE R2(C): TRUE COPY OF ORDER NO.EC1/47450/14/DTE
DT.1.12.2014.
ANNEXURE R2(D): TRUE COPY OF ORDER NO.EC4/12960/15/DTE
DT.21.5.2015.
ANNEXURE R2(E); TRUE COPY OF ORDER No.EC4/33240/14/DTE
DT.25.4.2016.
