Fioz Khan M.S vs Employment Director
2022 Latest Caselaw 561 Ker

WP(C) NO. 30783 OF 2021
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                  IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                    PRESENT
                      THE HONOURABLE MR.JUSTICE V.G.ARUN
          FRIDAY, THE 14TH DAY OF JANUARY 2022 / 24TH POUSHA, 1943
                           WP(C) NO. 30783 OF 2021
PETITIONER:

              FIOZ KHAN M.S,
              AGED 44 YEARS,
              CHARUVILA PUTHEN HOUSE, IDAVATTOM B - NADAKKAVIN NAGAR 32,
              CHANDHANATHOP P.O, KOLLAM - 691 014.
              BY ADVS.
              SMT. PRIYA SHANAVAS
              SMT. BIJITH S.KHAN


RESPONDENTS:

      1       EMPLOYMENT DIRECTOR
              EMPLOYMENT DIRECTORATE, THIRUVANANTHAPURAM - 695 033.
      2       EMPLOYMENT OFFICER
              O/O. THE TOWN EMPLOYMENT EXCHANGE, KUNDARA,
              KOLLAM - 691501.
      3       EMPLOYMENT OFFICER
              O/O. THE DISTRICT EMPLOYMENT EXCHANGE, TALUK CUTCHETTY
              P.O, KOLLAM - 691 001.
      4       THE PHARMACEUTICAL CORPORATION (INDIAN MEDICINE) KERALA
              LTD. REPRESENTED BY MANAGING DIRECTOR, (OUSHADHI),
              KUTTENELLOOR P.O, THRISSUR - 680 014.
      5       KERALA CERAMICS
              REPRESENTED BY MANAGING DIRECTOR, KUNDARA, KOLLAM -
              691501.
              BY ADVS.
              SRI. V. VENUGOPAL, GOVERNMENT PLEADER -R1 TO R3
              SRI. M.GOPIKRISHNAN NAMBIAR -R5
              SMT. POOJA. R. MENON -R5
              SRI. K.JOHN MATHAI
              SRI. JOSON MANAVALAN
              SRI. KURYAN THOMAS
              SRI. PAULOSE C. ABRAHAM
              SRI. RAJA KANNAN

      THIS    WRIT   PETITION   (CIVIL)   HAVING   COME   UP   FOR   ADMISSION   ON
14.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 30783 OF 2021
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                                 JUDGMENT

Dated this the 14th day of January, 2022

This writ petition depicts the picture of a poor

hapless unemployed youth, who waited for

employment for more than 28 years after

registering his name with the employment

exchange. Finally, just prior to the petitioner

crossing the maximum age for being sponsored for

permanent employment, viz. 31.12.2021, his name

was sponsored for appointment under the fourth

respondent. To add to the woes of the petitioner,

the fourth respondent did not proceed with the

process of appointment, compelling the petitioner

to seek cancellation of his sponsorship, so that he

could be sponsored to the next available vacancy.

This writ petition is filed seeking the following

reliefs.

i. Issue a Writ of Mandamus or any other appropriate

order or direction to Respondents 1 to 3 sponsor the WP(C) NO. 30783 OF 2021

Petitioner's name to the Regular Post (Last Grade)

which has arisen in between 03.03.2021 to

24.12.2021 from the District Employment Exchange,

Kollam, or in the alternative to the Regular Vacancies

for the post of Hospital Attendant Grade-2 which have

been reported to the Employment Exchanges at

Thiruvananthapuram Region in between 03.03.2021

to 31.12.2021 and the departments concerned

including R5 to comply the same.

ii. Issue direction to Respondents 1 to 3 to consider

his seniority and propose his name between

31.12.2021 and 30.09.2022 to be sponsored to any

Regular Post (Last Grade) which will be arisen in any

of the Departments in the Kerala State for being

sponsored from any of the Employment Exchanges in

the State.

2. Heard Adv. Priya Shanavas for the

petitioner, learned Government Pleader, Adv. V.

Venugopal for respondents 1 to 3 and Adv. Pooja.

R. Menon for the fifth respondent.

3. Learned Counsel for the petitioner WP(C) NO. 30783 OF 2021

submitted that the peculiar circumstances under

which the petitioner is placed should prompt this

Court to grant the relief sought, by exercising the

extra ordinary jurisdiction under Article 226 of the

Constitution of India.

4. In the counter affidavit filed on behalf of

respondents 1 and 2, it is stated that the petitioner

can be considered for full time regular appointment

in respect of the vacancies that was reported on or

before 31.12.2021 in the second respondent's

office, provided the petitioner is eligible in

accordance with the different selection rules like

registration, seniority, age, educational

qualification, priority, communal reservation etc.,

and only if no candidates were sponsored to the

reported vacancies. Learned Government Pleader

submitted that the unfortunate stage at which the

petitioner is placed will not justify issuance of

directions in contravention of the procedure WP(C) NO. 30783 OF 2021

prescribed by statute.

5. Learned Counsel for the fifth respondent

pointed out that, even though six vacancies were

reported to respondents 1 to 3 and candidates

sponsored, the Government intervened and halted

the process of appointment on the premise that

future appointments can be effected only after a

Recruitment Board is established. As such, no

relief can be sought against the fifth respondent.

6. Having heard the learned Counsel, I have

no doubt that the petitioner deserves the

maximum of sympathy. At the same time, the

question is whether, sympathetic considerations

will justify the issuance of directions contrary to

the statutory prescriptions, particularly when it will

adversely effect other similarly placed persons. The

answer being in the negative, the only way out is

to direct respondents 1 to 3 to consider the

petitioner's case with utmost compassion and to WP(C) NO. 30783 OF 2021

take all efforts to see whether the petitioner can be

sponsored to any of the vacancies that had arisen

on or before 31.12.2021.

The writ petition is disposed of accordingly.

Sd/-

V.G.ARUN

JUDGE NB/14-1 WP(C) NO. 30783 OF 2021

APPENDIX OF WP(C) 30783/2021

PETITIONER'S EXHIBITS EXHIBIT P1 TRUE COPY OF THE JUDGMENT IN WP(C) NO.

26909/2021.

EXHIBIT P2 TRUE COPY OF THE LETTER DATED 17.11.2021 FROM THE EMPLOYMENT OFFICER, TOWN EMPLOYMENT EXCHANGE, KUNDARA, KOLLAM.

EXHIBIT P3 TRUE COPY OF THE INFORMATION RECEIVED FROM THE EMPLOYMENT DIRECTORATE, THIRUVANANTHAPURAM, DATED 21.12.2021 THROUGH THE RTI ACT. EXHIBIT P3(A) TRUE COPY OF THE INFORMATION RECEIVED FROM THE EMPLOYMENT EXCHANGE, KOLLAM, DATED 24.12.2021 THROUGH THE RTI ACT.

EXHIBIT P4 TRUE COPIES OF THE REPLY LETTER DATED 16.11.2021 FROM THE EMPLOYMENT DIRECTORATE, THIRUVANANTHAPURAM.

EXHIBIT P5 TRUE COPY OF THE GOVERNMENT ORDER NO.36/2013/P & ARD, THIRUVANANTHAPURAM, DATED 13.12.2013 EXHIBIT P5(A) TRUE COPY OF THE PARAGRAPH NO. 11.57 IN PAGE NOS 80 & 81 IN CHAPTER XI IN PART I OF THE NATIONAL EMPLOYMENT SERVICE MANUEL, VOLUME - I. EXHIBIT P6 TRUE COPY OF THE FIRST PAGE OF THE SSLC BOOK OF THE PETITIONER.

EXHIBIT P7 TRUE COPY OF THE IDENTITY CARD ISSUED TO THE PETITIONER FROM THE TOWN EMPLOYMENT EXCHANGE, KUNDARA, KOLLAM.

EXHIBIT P8 TRUE COPY OF THE RELEVANT PAGE OF THE RATION CARD OF THE PETITIONER.

EXHIBIT P9 TRUE COPY OF THE INFORMATION RECEIVED ON 13.12.2021 BY THE PETITIONER FROM THE DISTRICT PUBLIC INFORMATION OFFICER AND DISTRICT EMPLOYMENT OFFICER.

RESPONDENTS' EXHIBITS: NIL

TRUE COPY

P.A TO JUDGE