Reena Abraham vs The State Of Kerala
2021 Latest Caselaw 22093 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
        THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
                                  &
           THE HONOURABLE MR. JUSTICE VIJU ABRAHAM
    FRIDAY, THE 5TH DAY OF NOVEMBER 2021 / 14TH KARTHIKA, 1943
                      OP(KAT) NO. 213 OF 2021
 AGAINST THE ORDER IN OA No.1518/2021 DATED 09.08.2021 OF KERALA
        ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM
PETITIONERS/APPLICANTS:

    1     REENA ABRAHAM,
          AGED 48 YEARS, W/O. G.AJU, LILIT GARDENS, KANNANCODE,
          ADOOR P.O., PATHANAMTHITTA DISTRICT, PIN-691523, PRESENTLY
          WORKING AS TRACER, OFFICE OF THE ASSISTANT DIRECTOR OF
          SURVEY (RANGE), PATHANAMTHITTA P.O., PATHANAMTHITTA
          DISTRICT- PIN-689645
    2     SAM DANIEL,
          AGED 43 YEARS, S/O. DANIEL VALLUVELIL, KAROTTU VEEDU,
          KODUMON P.O., PATHANAMTHITTA DISTRICT, PIN-691555, PRESENTLY
          WORKING AS TRACER, OFFICER OF THE ASSISTANT DIRECTOR OF
          SURVEY (RANGE), PATHANAMTHITTA P.O., PATHANAMTHITTA
          DISTRICT, PIN--689645.
    3     RAJESHKUMAR,
          AGED 43 YEARS, S/O. VASUDEVAN, MEENCHIRAKKAL HOUSE,
          MEZHUVELI P.O., PATHANAMTHITTA, PIN-689507, PRESENTLY
          WORKING AS TRACER, OFFICE OF THE ASSISTANT DIRECTOR OF
          SURVEY (RANGE), PATHANAMTHITTA P.O., PATHANAMTHITTA
          DISTRICT, PIN--689645.
    4     PRATHEESH P.,
          AGED 51 YEARS, S/O. KUNHAN P., PUTTATTU HOUSE, MUKKOM P.O.,
          KOZHIKODE DISTRICT, PRESENTLY WORKING AS TRACER, OFFICER
          OF THE ASSISTANT DIRECTOR OF SURVEY (RANGE), KOZHIKODE
          DISTRICT, PIN-673020.
    5     SMITHA P.S.,
          AGED 46 YEARS, W/O. MANOJKUMAR, KAKKANATTU HOUSE,
          THRIPRAYAR, VALAPPAD P.O., THRISSUR DISTRICT, PIN-680567,
          PRESENTLY WORKING AS TRACER, OFFICER OF THE ASSISTANT
          DIRECTOR OF SURVEY (RANGE), THRISSUR, THRISSUR DISTRICT, PIN-
          680022.
          BY ADVS.
          K.MOHANAKANNAN
          H.PRAVEEN (KOTTARAKARA)
 OP(KAT) NO. 213 OF 2021               2




RESPONDENTS/RESPONDENTS:

     1       THE STATE OF KERALA,
             REPRESENTED BY THE SECRETARY TO GOVERNMENT,
             REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT,
             THIRUVANANTHAPURAM-695001.
     2       THE DIRECTOR OF SURVEY AND LAND RECORDS,
             DIRECTORATE OF SURVEY AND LAND RECORDS,
             VAZHUTHACAUD, THIRUVANANTHAPURAM-695014.
     3       KERALA PUBLIC SERVICE COMMISSION,
             REPRESENTED BY ITS SECRETARY, PATTOM PALACE P.O.,
             THIRUVANANTHAPURAM-695004.
             BY ADV SHRI.P.C.SASIDHARAN, SC, KPSC


OTHER PRESENT:

             SRI.ANTONY MUKKATH, SR.GOVT. PLEADER


         THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP
FOR ADMISSION ON 05.11.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
 OP(KAT) NO. 213 OF 2021                           3




  ALEXANDER THOMAS & VIJU ABRAHAM, JJ.
     ------------------------------------------------------------------
                       O.P (KAT) No.213 OF 2021
                     [arising out of the order dated 09.08.2021
               in O.A No.1518/2021 on the file of the KAT, Tvm Bench]
           ------------------------------------------------------
               Dated this the 05th day of November, 2021


                               JUDGMENT

Alexander Thomas , J.

The petitioners herein have filed the instant Ext.P1 original

application, O.A. No.1518/2021 before the Kerala Administrative

Tribunal, Thiruvananthapuram Bench, seeking for orders to

quash and set aside the impugned Anx.A5 G.O.(Ms)

No.142/2021/RD dated 31.07.2021 to the extent it has ordered to

convert 100% of the existing 110 posts of Draftsman Grade-II as

Surveyor Grade-II for effectuating direct recruitment to the latter

category through the 3rd respondent Kerala Public Service

Commission (hereinafter referred to as 'PSC' for short), etc. The

sheet-anchor of the case of the petitioner before the Tribunal is that

the selection process for direct recruitment initiated by the

respondent PSC was to the post of Surveyor Grade-II, and that

Anx.A5 conversion order concerns the category of Draftsman

Grade-II and that going by the statutory Special Rules, 25% of the

post of Draftsman Grade-II has been statutorily set apart for

promotion of qualified hands from the feeder category of Tracer,

which feeder category post is held by the petitioners herein etc., and

that atleast 25% of the 110 posts covered by Anx.A5 should not have

been converted as Surveyor Grade-II, etc. The petitioners also

prayed before the Tribunal for granting interim stay of operation of

Anx.A5 order and also to direct the respondent PSC not to effect

advise as against 25% of the 110 posts covered by Anx.A5, etc. The

Tribunal refused to grant the said interim stay order and ordered

that advice and appointment as against the posts covered by Anx.A5

conversion order will be subject to the final result of the O.A. The

said interlocutory view has been taken by the Tribunal as per

interim order dated 09.08.2021.

2. Aggrieved by the impugned interim order dated

09.08.2021, whereby the Tribunal has not granted interim stay as

sought for, the applicants in the O.A. have approached this Court by

filing the instant original petition under Articles 226 & 227 of the

Constitution of India.

3. Heard Sri.K. Mohanakannan, learned counsel appearing

for the petitioners in the O.P./applicants in the O.A., Sri.Antony

Mukkath, learned Senior Government Pleader appearing for R1 &

R2 in the O.P./O.A., and Sri.P.C. Sasidharan, learned Standing

Counsel for R3 Kerala Public Service Commission.

4. After hearing both sides at the interim stage, we had

passed an order on 26.08.2021, directing the respondents to

furnish instructions and in the meanwhile it was ordered that the

3rd respondent PSC may not advice candidates from the rank list for

the post of Surveyor Gr.II as against the 5 vacancies covered by

Annexure A5 conversion order, if not already advised to those

vacancies. This, the Court had so ordered taking into account that

though the claim of the petitioners was in regard to 25% of the 110

posts covered by Anx.A5 order, the petitioners before us are only 5

in number.

5. Now, the 3rd respondent PSC has filed a counter affidavit

dated 01.10.2021 in this O.P. in which it has been stated that though

the interim order was passed by this Court on 26.08.2021

restraining advice of candidates as against 5 vacancies covered by

Anx.A5, the PSC had approved the advice process as against all the

110 vacancies covered by Anx.A5 on 06.08.2021 and the advice

memos were duly forwarded to the appointing authority concerned

and that therefore the 3rd respondent PSC was not in a position to

keep unadvised 5 vacancies as above. But that, earlier itself the 3 rd

respondent PSC has ordered that the advice memos and the

appointment orders as against the 110 vacancies covered by Anx.A5

will be subject to final result of the O.A. No.1518/2021 as ordered in

the interim order dated 09.08.2021, rendered by the Tribunal in

this O.A.

6. After hearing both sides, we feel that the petitioners

have made out the case that instead of converting 100% of all the

110 posts covered by Anx.A5, the Government should have taken

into consideration 25% quota promotion in the case of feeder

category hands like the petitioners holding the post of Tracer in as

much as Ext.P3 Special Rules for the post of Draftsman Grade-II,

Tracer, etc. have not been amended in the manner known to law

and further that Anx.A5 conversion order proceeds on the premise

as if 100% of the vacancies in the post of Draftsman Grade-II could

be utilised only for direct recruitment, etc.

7. We are saying this only on the basis of prima facie

assessment of the matter and it is on this basis that we have passed

the interim order in this case on 26.08.2021 ordering that no advice

can be made as against the 5 vacancies covered by Anx.A5 order, if

not already advised, etc.

8. We querried to Sri.Antony Mukkath, learned Senior

Government Pleader as to whether appointment orders have been

issued to all the 110 candidates advised by the PSC on 06.08.2021,

etc. We are apprised by the learned Senior Government Pleader

that he has only telephonic instructions and that as of now only one

vacancy is existing and he does not have precise instructions on the

querry of this Court.

9. In the facts and circumstances of the case, it is ordered

that if appointment orders have not been issued as on today, in

respect of the last 5 candidates out of the 110 candidates advised by

the PSC, then no appointment orders may be issued to such last 5

candidates advised by the PSC.

10. Needless to say, as already ordered by the Tribunal, the

advice and appointment of candidates will be subject to the result of

the pending O.A. The appointing authority, 2 nd respondent

(Director of Survey and Land Records) will ensure that a copy of the

appointment chart in respect of all the 110 candidates advised by

the PSC along with their present postal addresses, shall be

immediately furnished to the 1st petitioner by Registered Speed Post

with Acknowledgment Due, for necessary information.

11. The learned counsel appearing for the petitioners would

submit that they will immediately take steps to amend the pleas in

the original application to incorporate challenge as against the

advice and appointment of candidates as against the 25% of the 110

posts covered by Anx.A5 order by impleading the affected persons,

etc.

12. It is for the petitioners to proceed as per law. It is

further made clear that the right of the candidates to get advised

and appointed will be subject to the final result of the O.A.

13. Further, the parties may complete the pleadings without

any further delay and the Tribunal may consider the facilitation of

early final disposal of the main matter in O.A. No.1518/2021,

without much delay, preferably within a period of 4 to 5 months or

within any reasonable time limit that may found appropriate and

reasonable by the Tribunal, taking into account the interest of

administration of justice.

14. We would further make it clear that we have not entered

into the merits of the final controversy and we have only taken the

prima facie view and it is for the Tribunal to render its final verdict

in the matter, independently.

15. The interim order dated 09.08.2021, rendered by the

Tribunal in the above O.A. will stand modified as above.

With these observations and directions, the above original

petition will stand finally disposed of.

Sd/-

ALEXANDER THOMAS, JUDGE

Sd/-

VIJU ABRAHAM, JUDGE Skk//10112021

APPENDIX OF OP(KAT) 213/2021

PETITIONERS' EXHIBITS:-

EXHIBIT P1 TRUE COPY OF OA 1518/2021 OF THE HON'BLE TRIBUNAL, WITH ANNEXURES.

ANNEXURE A1 TRUE COPY OF THE RELEVANT PAGES OF KERALA SURVEY AND LAND RECORDS SUBORDINATE SERVICE SPECIAL RULES VIDE GO(P) 545/66 DATED 30/09/1966.

ANNEXURE A2 TRUE COPY OF THE APPLICATION DATED 15/02/2021 UNDER RTI ACT, 2005 SUBMITTED BY JAYACHANDRAN.

ANNEXURE A3 TRUE COPY OF THE COMMUNICATION NO. DSLR 720/2021-A3 DATED 26/02/2021 OF THE SPIO OFFICE OF THE 2ND RESPONDENT.

ANNEXURE A4 TRUE COPY OF THE REPRESENTATION DATED 29/01/2021 OF THE 1ST APPLICANT PREFERRED BEFORE THE 1ST RESPONDENT.

ANNEXURE A5 TRUE COPY OF THE GO(RT) 142/2021/REV.

DATED 31/07/2021.

EXHIBIT P2 TRUE COPY OF ORDER PASSED BY THE KAT (TVM) IN OA 1518/2021 DATED 09/08/2021.

EXHIBIT P3 TRUE COPY OF THE SPECIAL RULES (KERALA SURVEY AND LAND RECORDS SUBORDINATE SERVICES SPECIAL RULES DATED 30.09.1966)

RESPONDENTS' EXHIBITS:- NIL