Kerala High Court
Ashraf P vs Kerala Public Service Commission on 14 January, 2021
O.P.(KAT) No.438 of 2020 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MR. JUSTICE T.R.RAVI
THURSDAY, THE 14TH DAY OF JANUARY 2021 / 24TH POUSHA, 1942
OP(KAT).No.438 OF 2020
AGAINST THE ORDER IN OA (EKM) 491/2018 DATED 09-01-2020 OF
KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM
PETITIONER/APPLICANT:
ASHRAF P.,
AGED 41 YEARS
S/O. HAMZA .P. OFFICE OF THE DEPUTY DIRECTOR OF
EDUCATION, DOWN HILL (P.O.), MALAPPURAM 676 519,
RESIDING AT PATTATHODIKA (H), PALAMANNIL,
NELLIKUTH (PO), MANJERI,
MALAPPURAM, KERALA 676 122.
BY ADV. DR.GEORGE ABRAHAM
RESPONDENTS/RESPONDENTS:
1 KERALA PUBLIC SERVICE COMMISSION
REPRESENTED BY ITS SECRETARY,
OFFICE OF THE KERALA PUBLIC SERVICE COMMISSION,
PATTOM, THIRUVANANTHAPURAM 695 004, KERALA.
2 DISTRICT OFFICER,
KERALA PUBLIC SERVICE COMMISSION,
DISTRICT OFFICE, CIVIL STATION,
NEW BLOCK, UP HILL, MALAPPURAM 676 505,KERALA.
3 STATE OF KERALA,
REPRESENTED BY THE PRINCIPAL SECRETARY,
PERSONNEL AND ADMINISTRATIVE REFORMS (RULES)DEPARTMENT,
GOVERNMENT OF KERALA, SECRETARIAT,
THIRUVANANTHAPURAM 695 001. KERALA.
4 DEPUTY DIRECTOR OF EDUCATION (DDE),
OFFICE OF THE DEPUTY DIRECTOR OF EDUCATION,
KOTTAPADU, DOWN HILL,
MALAPPURAM 676 519.
R1 & R2 SRI.P.C.SASIDHARAN, SC, KPSC
R3 & R4 BY SRI.B.VINOD, SR.GOVT.PLEADER
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD
ON 04-01-2021, THE COURT ON 14-01-2021 DELIVERED THE FOLLOWING:
O.P.(KAT) No.438 of 2020 2
(CR)
ALEXANDER THOMAS & T.R. RAVI, JJ.
------------------------------------------------
O.P.(KAT) No.438 of 2020
--------------------------------------------------
Dated this the 14th day of January, 2021
JUDGMENT
T.R.Ravi, J.
The petitioner who is now working as Office Attendant at the Office
of the Deputy Director of Education, Malappuram, entered service on
01.12.2010 through a selection process conducted by the 1 st respondent,
Kerala Public Service Commission. The selection was conducted for the
post of Office Attendant in various departments in Malappuram district.
When the turn arose for the appointment, there was no vacancy available
in Malappuram district and the petitioner was advised to join in the
headquarters vacancy in the office of the Enquiry Commissioner and
Special Judge (Vigilance), Thiruvananthapuram. His probation was
declared on 16.10.2010. While working in the said office, the petitioner
got appointment as Office Attendant in the Education Department in the
Malappuram district. He was included in the final seniority list of Class
IV employees working under the Deputy Director of Education,
Malappuram.
2. On 18.08.2017, the 1st respondent issued Ext.P3(A3)
notification calling for applications for appointment by transfer to the
post of High School Assistant (Physical Science). One of the qualification
prescribed is that the applicant should have not less than 5 years service
as Clerk/Typist/Attender/Office Attendant in the General Education
Department as on the date of application. The petitioner had applied
pursuant to the above notification. The petitioner's application was
rejected by the 1st respondent since he had not put in the necessary
number of years of service. The rejection of the application was
challenged by the petitioner before the Tribunal in O.A.491/2018 which
was dismissed by the Tribunal by order dated 14.9.2020. The petitioner
preferred as review application as R.A.(Ekm)No.2/2020 which was also
dismissed by the Tribunal. It is challenging the orders of the Tribunal
that this original petition is preferred. The issue that needs to be decided
in this original petition is whether the said period of 5 years has to be
service in the General Education Department alone or whether it can
include the petitioner's previous service in the headquarters.
3. Heard Dr.George Abraham, learned counsel for the petitioner,
Sri P.C.Sasidharan, learned Standing Counsel for respondents 1 & 2 and
Sri B.Vinod, learned Senior Government Pleader on behalf of
respondents 3 and 4.
4. Admittedly, the petitioner was initially appointed in the
headquarters vacancy as Office Attendant and was subsequently
appointed as Office Attendant in the General Education Department,
Malappuram district. It is also not disputed that the petitioner does not
have 5 years' service in the General Education Department. Annexure A3
produced along with the original application before the Tribunal is the
notification dated 18.08.2017 calling for applications for appointment by
transfer. In paragraph 7(a), dealing with qualifications, it has been
specifically stated that the applicant should have service as
Clerk/Typist/Attender/Office Attendant in the General Education
Department with not less than 5 years as on the date of application. The
petitioner was hence fully aware of the requirement of service in the
General Education Department of not less than 5 years. The petitioner
relies on G.O.(P)No.5/2010/P & ARD. Dated 04.03.2010, whereby the
Special Rules for the Kerala Last Grade Service were amended. The order
has been produced as Annexure A8 in the original application. As per the
amendment, Note III was added under sub-rule (c) of Rule 14 of the
Special Rules. After amendment, the Rule reads as follows:
"Rule 14. Seniority.- (a) Seniority of a member in any category of the
service shall, unless he has been reduced to a lower rank as punishment,
be determined by the date of the order of his first appointment to such
category:
Provided that if any portion of the service of such person does not count
towards probation under the rules, his seniority shall be determined by
the date of commencement of his service which counts towards probation.
(b) The Appointing Authority shall, at the time of passing an order
appointing two or more persons simultaneously to the service, fix the
order of preference among them, and seniority shall be determined in
accordance with it.
(c) Notwithstanding anything contained in clauses (a) and (b) above, the
seniority of a person appointed to a category in the service on the advice of
the Commission shall, unless he has been reduced to a lower rank as
punishment, be determined by the date of first effective advice made for
his appointment to such category and when two or more persons are
included in the same list of candidates advised, their relative seniority
shall be fixed according to the order in which their names are arranged in
the advice list.
Note (1). - The date of effective advice in this rule means the date of the
letter of the Commission on the basis of which the candidate is appointed.
Note (2) - Seniority of a person advised by the District Office of the Kerala
Public Service Commission for appointment against a vacancy in
Headquarters and transferred after such appointment to the District of
the choice shall be determined with reference to the original advice by the
District Office of the Public Service Commission.
Note (3).- The seniority of a person advised by the District Office of the
Kerala Public Service Commission and appointed against a Headquarters
vacancy in the Government Secretariat, Advocate General's Office and
similar Departments having no extension in Districts and transferred after
such appointment to any Department in the opted District of his choice,
shall be determined on the basis of his date of first effective advice for
appointment to such category."
5. According to the counsel for the petitioner, the requirement of
service of 5 years has to be understood, having regard to Rule 14 also. It
is contended that the effect of Rule 14 is to ensure that the petitioner
retains the benefits of his service under the headquarters vacancy and the
same will have to be added to his service in the General Education
Department, for the purpose of determining whether he has the required
service for the purpose of appointment by transfer as HSA. The above
contention is countered by the learned counsel for the respondents
stating that the concept of 'seniority' and 'service' are two different things
and a Rule which determines the seniority of persons cannot in any way
impact the service rendered by a person in two different Departments.
According to the counsel for the respondents, for the purpose of an
appointment by transfer as an HSA in the General Education
Department, there is a prescription that the applicant should have service
in the Department and this requirement cannot in any way be affected by
Rule 14 which determines the seniority of a Last Grade Servant.
6. The Standing Counsel for the 1st respondent pointed out that
the term 'service' has been defined in Rule 2(15) of Part I of Kerala State
and Subordinate Service Rules, 1958, which reads as follows:
"Rule 15. Service.- "Service" means a group of persons classified by the
State Government as a State or a Subordinate Service as the case may be."
It is submitted that the above definition clearly shows that what is
intended by the term 'service' has no relation to the seniority of a person
in a particular post. It is contended that mere inclusion in the seniority
list of the Office Attendants in the General Education Department will
not in any way create right in the petitioner for being appointed as High
School Assistant (Physical Science), for which he will have to satisfy the
further requirements regarding qualification and the number of years of
service prescribed.
7. The Tribunal in the impugned order accepted the contentions
of the respondents and held that the amendment carried out by Annexure
A8 to the Special Rules for the Kerala Last Grade Service was intended to
clarify that persons appointed against headquarters vacancies are entitled
to retain their seniority based on the first effective date of advice and that
it does not in any way enable the petitioner to reckon his prior service in
other Departments for determining the eligibility to apply for the post of
HSA (Physical Science). We find no reason to hold otherwise. Rule 14 of
the Last Grade Service Special Rules deals only with the seniority of the
personnel and does not declare that the service of a last grade servant in a
department will be treated as similar and equivalent to the service
rendered in another department. The placing of a last grade servant in
the seniority on the basis of his first appointment in the headquarter
service can, only be considered for the purpose of any regular promotion
to the next higher category of post, within the same service, to which he
may be entitled to solely on the basis of seniority in service, if any such
promotion is envisaged by the Rules. Such placement will not have the
effect of altering the requirement of service in a particular department
along with necessary qualifications for the purpose of appointment by
transfer to a post in a different service. The fine and substantial
distinction between promotion (which is from the lower post or grade to
the higher post or grade, within the same service) and transfer
appointment from one service to another, has to be kept in mind.
8. The counsel for the petitioner relied on Ext.P2 Government
order dated 25.01.2001 to submit that the prescription in the
Government order is only to the effect that the applicant should have 5
years' service and there is no requirement that the service should be in
the General Education Department. We are unable to countenance the
above submission. As per G.O.(MS)No.438/17/G.Edn. dated 20.10.1970
(Ext.P1), the Government considered the request of the Typists of
Education Department who have the necessary qualifications for being
considered for appointment by transfer to the post of Graduate Assistant
Gr.II. The Government ordered that UD Clerks/UD Typists in the
Education Department who have put in not less than 5 years of service as
Clerks/Typists and who have the B.Ed. qualification may apply to the
Public Service Commission for being appointed to these posts. It was
also ordered that such appointment by transfer will be limited to 10% of
the vacancies in each subject in each revenue district. It can be seen that
the Government order clearly stipulates that the service required is
service in the Education Department. In Ext.P2 G.O.(Ms.)No.
2001/G.Edn. dated 25.01.2001, the Government considered the request
of Peons and Attenders in the General Education Department possessing
similar qualifications for being considered for appointment by transfer as
High School Assistants. After considering the request, the Government
clarified the earlier order Ext.P1 dated 20.10.1970, and ordered that the
appointment by transfer to the post of High School Assistant against the
quota of 10% will be available to Clerks, Typists, Attenders and Peons in
the General Education Department who have the prescribed qualification
and who have put in not less than 5 years of service. The reference to 5
years of service in paragraph 3 of the order Ext.P2 does not in any
manner mean that the service required can be in any Department. The
above Government order was only intended to clarify that along with
Clerks and Typists, the Peons and Attenders can also aspire for
appointment by transfer to the post, provided, they have the required
qualifications. The order does not in any way change the prescribed
qualifications. It only expands the eligible category of Clerks and Typists
by including the Peons and Attenders also.
9. On a reading of the Government orders Exts.P1 & P2 and Rule
14 of the Special Rules, we are of the considered opinion that the
reasonings of the Tribunal in the impugned orders do not suffer from any
illegality nor does the order suffer from any irregularity or impropriety or
irrationality. The petitioner has not challenged the government orders
Exts.P1 & P2 but only seeks to interpret the same to mean that the service
stated in the Government orders have to be read as service in any
department. We are unable to accept the said contention. No interference
is called for to the order dated 09.01.2020 passed by the Tribunal in O.A.
(Ekm) No.491 of 2008 and the order dated 14.09.2020 in the review
application R.A.(Ekm) No.2 of 2020.
The original petition fails and the same is dismissed. There will be
no order as to costs.
Sd/-
ALEXANDER THOMAS,
JUDGE
Sd/-
T.R. RAVI,
JUDGE
dsn
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF GO(MS) NO. 438/70/G. EDN. DATED
20.10.1970.
EXHIBIT P2 TRUE COPY OF THE ORDER GO (MS) NO.
20/2001/G.EDN. DATED 25.01.2001.
EXHIBIT P3 TRUE COPY OF THE OA (EKM) NO. 491/2018 WITH
ANNEXURES.
EXHIBIT P3 (A1) TRUE COPY OF THE ADVISE DATED 03.11.2010
ISSUED TO THE APPLICANT BY THE 2ND RESPONDENT.
EXHIBIT P3 (A2) TRUE COPY OF THE ABSTRACT OF THE SENIORITY
LIST DATED 04.11.2015 OF OFFICENCE ATTENDANTS
UNDER DEPUTY DIRECTOR OF EDUCATION (DDE),
MALAPPURAM ISSUED BY THE ADMINISTRATIVE
ASSISTANT DDE OFFICE, MALAPPURAM.
EXHIBIT P3 (A3) TRUE COPY OF THE EXTRA ORDINARY GAZETTE DATED
18.08.2017 PUBLISHED BY THE 1T RESPONDENT IN
CATEGORY NO. 261/2017 FOR THE APPOINTMENT OF
H.S.A PHYSICAL SCIENCE BY TRANSFER.
EXHIBIT P3 (A4) TRUE COPY OF THE SCREEN SHOT CONTAINING
APPLICATION DETAILS OF THE APPLICANT.
EXHIBIT P3 (A5) TRUE COPY OF THE SERVICE CERTIFICATE DATED
30.8.2017 ISSUED TO THE APPLICANT BY THE
ADMINISTRATIVE ASSISTANT, DDE OFFICE,
MALAPPURAM.
EXHIBIT P3 (A6) TRUE COPY OF THE COMMUNICATION DATED
09.02.2018 ISSUED TO THE APPLICANT BY THE 2ND
RESPONDENT ONLINE.
EXHIBIT P3 (A7) TRUE COPY OF THE COMMUNICATION REJECTING THE
CANDIDATURE/APPLICATION OF THE APPLICANT BY
THE 2ND RESPONDENT ONLINE.
EXHIBIT P3 (A8) TRUE COPY OF THE NOTIFICATION VIDE GO (P) NO.
5/2010/P & ARD DATED 04.03.2010 ISSUED BY THE
3RD RESPONDENT.
EXHIBIT P3 (A9) TRUE COPY OF THE REPRESENTATION DATED
18.02.2018 SUBMITTED BY THE APPLICANTS BEFORE
THE 3RD RESPONDENT.
EXHIBIT P3 (A9A) TRUE COPY OF THE POSTAL RECEIPT NO.
EL093775536IN DATED 20.02.2018 EVIDENCING THE
DISPATCH OF ANNEXURE A9 TO THE 3RD RESPONDENT.
EXHIBIT P4 TRUE COPY OF THE REPLY STATEMENT FILED BY THE
KERALA PUBLIC SERVICE COMMISSION.
EXHIBIT P5 TRUE COPY OF THE REJOINDER FIELD BY THE
PETITIONER.
EXHIBIT P5 (A10) TRUE COPY OF THE COMMON ORDER DATED 03.12.2018
IN OA (EKM) NOS. 3036, 3090 OF 2017, 481 AND
498 OF 2018 ISSUED BY THE TRIBUNAL.
EXHIBIT P5 (A11) TRUE COPY OF THE JUDGMENT IN JYOTHI K.K AND
OTHERS VS. KERALA PUBLIC SERVICE COMMISSION
AND OTHERS [JT-2002 (SUPPL. 1) SC-85] OF THE
APEX COURT.
EXHIBIT P6 TRUE COPY OF THE REPLY AFFIDAVIT FILED BY THE
3RD RESPONDENT.
EXHIBIT P7 TRUE COPY OF THE REJOINDER FILED BY THE
PETITIONER AGAINST THE REPLY STATEMENT OF THE
3RD RESPONDENT.
EXHIBIT P7 (A12) TRUE COPY OF THE JUDGMENT IN C.BINDU VS. THE
STATE OF KERALA [2007 4 KHC 1036] OF THE
HONBLE HIGH COURT OF KERALA.
EXHIBIT P8 TRUE COPY OF THE JUDGMENT IN OA (EKM) NO.491 /
2018.
EXHIBIT P9 TRUE COPY OF THE REVIEW APPLICATION (EKM) NO.
2/2020.
EXHIBIT P10 TRUE COPY OF THE JUDGMENT IN RA(EKM) NO.
2/2020 DATED 14.09.2020.
