Soniya S vs State Of Kerala
2022 Latest Caselaw 9198 Ker

           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

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

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

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

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

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

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

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. 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

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

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

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

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

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

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