Suresh K.P vs Subhash V.S
2022 Latest Caselaw 9712 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
    THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
                               &
         THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
   FRIDAY, THE 26TH DAY OF AUGUST 2022 / 4TH BHADRA, 1944
                    OP(KAT) NO. 290 OF 2022
        AGAINST THE ORDER IN TA NO. 2785/2012 OF KERALA
          ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM
PETITIONER/2ND APPLICANT IN THE OA:

           SURESH K.P, S/O.K.V.PADMANABHAN,
           AGED 49 YEARS
           RESEARCH ASSISTANT, KERALA INSTITUTE FOR RESEARCH
           TRAINING AND DEVELOPMENT STUDIES OF SCHEDULED
           CASTE & SCHEDULED TRIBES (KIRTADS)
           CHEVAYUR P.O, KOZHIKODE - 17 , PIN - 673017
           BY ADVS.
           S.SUJIN
           NITA.N.S.

RESPONDENT/S/IST APPLICANT & RESPONDENTS IN OA:

    1      SUBHASH V.S
           RESEARCH ASSISTANT, KERALA INSTITUTE FOR RESEARCH
           TRAINING AND DEVELOPMENT STUDIES OF SCHEDULED
           CASTE & SCHEDULED TRIBES (KIRTADS),
           CHEVAYUR, KOZHIKODE
           , PIN - 673017
    2      STATE OF KERALA
           REPRESENTED BY THE PRINCIPAL SECRETARY,
           SCHEDULED CASTE & SCHEDULED TRIBES DEPARTMENT,
           GOVERNMENT OF KERALA,
           THIRUVANANTHAPURAM, PIN - 695001
    3      KERALA INSTITUTE FOR RESEARCH TRAINING AND
           DEVELOPMENT STUDIES OF SCHEDULED CASTE &
           SCHEDULED TRIBES (KIRTADS)
           KOZHIKODE
           REPRESENTED BY ITS DIRECTOR, PIN - 673017
    4      KERALA PUBLIC SERVICE COMMISSION
           REPRESENTED BY ITS SECRETARY,
           PATTOM P.O, THIRUVANANTHAPURAM
           , PIN - 695004
 OP(KAT)No.290 of 2022
                                 :2:


      5       DEEPA S
              LAIYHA BHAVAN KANNEMEL,
              PATTAZHI P.O, KOLLAM
              , PIN - 691552
      6       SMITHA SIVADAS
              GOWRI NIVAS, MULAYATHALA VEEDU,
              KUDAPPANAKUNNU P.O, THIRUVANANTHAPURAM
              , PIN - 695043
      7       VISHNUPRIYA P
              RESEARCH OFFICER, KERALA INSTITUTE FOR RESEARCH
              TRAINING AND DEVELOPMENT STUDIES OF SCHEDULED CASTE
              & SCHEDULED TRIBES (KIRTADS),
              CHEVAYUR, KOZHIKODE
              , PIN - 673017
      8       JEEVAN KUMAR
              RESEARCH OFFICER, KERALA INSTITUTE FOR RESEARCH
              TRAINING AND DEVELOPMENT STUDIES OF SCHEDULED CASTE
              & SCHEDULED TRIBES (KIRTADS),
              CHEVAYUR, KOZHIKODE
              , PIN - 673017
OTHER PRESENT:


              BY SR GP SRI.B UNNIKRISHNA KAIMAL
              BY SRI.P.C.SASIDHARA, SC


       THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR
ADMISSION ON 26.08.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 OP(KAT)No.290 of 2022
                                         :3:



      A.K.JAYASANKARAN NAMBIAR & MOHAMMED NIAS C.P., JJ
            ------------------------------------------------------------------
                               OP(KAT)No.290 of 2022
                           --------------------------------------------
                     Dated this the 26th day of August, 2022

                                    JUDGMENT

Mohammed Nias.C.P.J.

This original petition (KAT) is filed by the second applicant

in the original application, which was a transferred application

preferred by the petitioners, Research Assistants in the Kerala

Institute for Research Training and Development Studies of

Scheduled Caste & Scheduled Tribes (KIRTADS), aggrieved by the

non consideration of their claim for promotion to the post of

Research Officer (Anthropology) and Lecturer

(Anthropology/Sociology) and also questioning the action of the

second respondent resorting to direct recruitment through the

Kerala Public Service Commission to fill up the said posts. The writ

petition was transferred to the Tribunal on its constitution and

renumbered as T.A.No.2785 of 2012. The petitioners case was that

they were appointed on contract basis as Research Assistants as per

Ext.P1 order dated 14.10.2004 for a period of one year and

engagement continued and by Ext.P2 order dated 24.10.2009 the

applicants and other employees were regularised in service with

effect from the date of their continuous service and accordingly, the

second applicant was regularised with effect from 1.12.2004. Exts.P3 OP(KAT)No.290 of 2022

and P3(a) were the seniority list of Research Assistants published by

the second respondent. The Special Rules for KIRTADS Service,

2007, was issued as per a notification dated 11.10.2007 in the

gazette dated 23.10.2007, as per which the post of Research Officer

is to be filled through by transfer from the combined seniority list of

categories 2 and 3 in the Subordinate Service which are Research

Assistant (Anthropology) and Research Assistant (Sociology) and in

the absence of qualified hands by direct recruitment. Thus, the

petitioners/applicants claimed eligibility for by transfer appointment

as according to them they were qualified hands available in the

feeder category and therefore the direct recruitment could not be

resorted to. The selection process initiated as per Ext.P6 to P6(c)

notifications were challenged on the above contentions before the

Tribunal.

2. The first and second respondents have filed their reply

statements contending that they were regularised only in the year

2009 by invoking the saving clause under Rule 10 of the Special

Rules for KIRTADS Service. The applicants were not qualified for by

transfer appointment since on the date of notifying the vacancies of

Research Officer and Lecturer for direct recruitment, the probation

of the applicants were not declared and so were not qualified as on

the relevant date of notification, thus sought dismissal of the

application.

OP(KAT)No.290 of 2022

3. The Tribunal after considering the rival contentions found

that the appointment in year 2004 was on contract basis by

executing a bond that stipulated that they would have no claim for

regular appointment and that their contractual appointment would

not confer any preferential claim for future appointment. The

applicants and others were regularised in service by Ext.P2 order

dated 24.10.2009 with effect from the date of their initial

engagement, namely, 1.11.2004 and 1.12.2004 invoking the saving

clause under Rule 10 of the Special Rules. The last date for

submission of application for the post notified as per Exts.P6 to P6(c)

was 9.9.2009, which was prior to the date of regularization of the

applicants in the service. The method of appointment to the post

was by transfer and direct recruitment in the absence of qualified

candidates and the post of Research Assistant is the feeder category

of by transfer appointment. Admittedly, applicants were not in

regular service as on the date of notification and therefore not

eligible for by transfer appointment. In as much as the applicants

were neither a full member nor an approved probationer on the date

of the notification, they were not eligible for by transfer appointment

and accordingly the challenge against the direct recruitment process

for the post of Research Assistant (Anthropology), Lecturer

(Anthropology/Sociology) was rejected by the Tribunal. Being

aggrieved by the said order, this OP(KAT is filed.

4. The learned counsel for the petitioner argues that their OP(KAT)No.290 of 2022

probation was not declared in time and the same was an illegality. It

is also argued that soon after the notification they have became

eligible to be considered for by transfer appointment and therefore

the order of the Tribunal is to interfered with. We may notice that it

is indisputable that the notification inviting application for direct

recruitment was issued on 11.10.2007, whereas, the applicants were

regularised only on 24.10.2009 by Ext.P2 proceedings. Thus, the

applicants were not eligible as on the relevant date under Exts.P6 to

P6(c) notifications. As such we do not find any error in the Tribunal

order rejecting the contentions of the applicant and dismissing the

application.

The OP(KAT) fails and is accordingly dismissed.

Sd/-

A.K.JAYASANKARAN NAMBIAR, JUDGE

Sd/-

MOHAMMED NIAS C.P., JUDGE

dlk 26.8.2022 OP(KAT)No.290 of 2022

APPENDIX OF OP(KAT) 290/2022

PETITIONER'S EXHIBITS

Exhibit1 TRUE COPY OF W.P.(C) NO.38661 OF 2010 (RENUMBERED AS TA NO.2785/2012) ALONG WITH EXHIBITS P1 TO P6(C) Exhibit T.A1 TRUE COPY OF THE ORDER NO.B.1363/2002 (2) DATEDF 11/10/2004 ISSUED BY THE 2ND RESPONDENT Exhibit T.A 2 TRUE COPY OF THE G.O(MS) NO.90/2009/SCST DEPARTMENT DATED 24/10/2009 ISSUED BY THE 1ST RESPONDENT Exhibit T.A 3 TRUE COPY OF THE ORDER NO.B.947/2010(2) DATED 01/10/2010 ISSUED BY THE 2ND RESPONDENT Exhibit T.A 3(a) TRUE COPY OF THE COMBINED SENIORITY LIST OF RESEARCH ASSISTANT (ANTHROPOLOGY) & RESEARCH ASSISSTANT (SOCIOLOGY) AS ON 01/05/2010 PUBLISHED BY THE 2ND RESPONDENT Exhibit T.A 4 TRUE COPY OF THE G.O(P) NO.60/2007/SCSTDD DATED 11/10/2007 Exhibit T.A 5 TTRUE COPY OF THE G.O(P) NO.63/2007/SCSTDD DATED 23/10/2007 Exhibit T.A 6 TRUE COPY OF THE NOTIFICATION ISSUED BY THEB 3RD RESPONDNET FOR CATEGORY NO.15/2009 DATED 12/02/2009 Exhibit T.A 6(a) TRUE COPY OF THE NOTIFICATION ISSUED BY THE 3RD RESPONDENT FOR CATEGORY NO.308 OF 2009 DATED 30/07/2009 Exhibit T.A 6(b) TRUE COPY OF THE NOTIFICATION ISSUED BY THE 3RD RESPONDENT FOR CATEGORY NO.14/2009 DATED 12/02/2009 Exhibit T.A 6(C) TRUE COPY OF THE NOTIFICATION ISSUED BY THE 3RD RESPONDENT FOR CATEGORY NO.309/2009 DATED 30/07/2009 Exhibit P2 TRUE COPY OF THE REPLY STATEMENT FILED BY THE 3RD RESPONDENT IN TA NO.2785/2012.

Exhibit P3 TRUE COPY OF THE ORDER OF THE HON'BLE KAT IN TA NO.2785/2012 DATED 02/12/2019 Exhibit P4 TRUE COPY OF THE G.O(RT) NO.59/2017/SCST DEPARTMENT DATED 24/07/2017 Exhibit P5 TRUE COPY OF PROCEEDINGS DATED 08/02/2016 OF THE 3RD RESPONDENT