Kerala High Court
Ardher S vs State Of Kerala on 10 October, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
&
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
TUESDAY, THE 10TH DAY OF OCTOBER 2023 / 18TH ASWINA, 1945
WA NO.1407 OF 2023
JUDGMENT IN WP(C) 8712/2023 OF HIGH COURT OF KERALA
DATED 26.7.2023
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APPELLANT/NOT A PARTY IN THE WPC :-
ARDHER.S., AGED 34 YEARS
S/O.T.T.K.SASI, REGIONAL OFFICER (TEMPORARY)
KERALA ARTISANS DEVELOPMENT CORPORATION,
REGIONAL OFFICE, KOZHIKODE, PIN - 673 001
RESIDING AT AZAD HOUSE, CHOKLI.P.O., THALASSERY,
KANNUR DISTRICT, PIN - 670 672.
BY ADVS.
M.SASINDRAN
S.SHYAM KUMAR
RESPONDENTS/PETITIONER & RESPONDENTS :-
1 NIKHIL PROMOD,
S/O.P.N.PROMOD, AVITTAM, NH BYE PASS,
LORDS HOSPITAL JUNCTION, ANAYARA.P.O.,
THIRUVANANTHAPURAM, PIN - 695 029.
2 STATE OF KERALA
REPRESENTED BY ITS PRINCIPAL SECRETARY,
INDUSTRIES DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695 001.
3 THE KERALA ARTISANS DEVELOPMENT CORPORATION
REPRESENTED BY ITS MANAGING DIRECTOR, PATTOM.P.O.,
KESAVADASAPURAM, THIRUVANANTHAPURAM, PIN - 695 004.
4 THE MANAGING DIRECTOR
KERALA ARTISANS DEVELOPMENT CORPORATION,
PATTOM.P.O., KESAVADASAPURAM, THIRUVANANTHAPURAM,
PIN - 695 004
5 THE KERALA PUBLIC SERVICE COMMISSION
REPRESENTED BY ITS SECRETARY, PATTOM,
THIRUVANANTHAPURAM, PIN - 695 004
WA Nos.1407 & 1412 OF 2023
-: 2 :-
BY ADVS.
M.P. ASHOK KUMAR
K.S.ARUNKUMAR(B/O)
P.C.SASIDHARAN(B/O)
BINDU SREEDHAR(K/000317/2002)
ASIF N(K/001564/2018)
P.C.GOPINATH(K/000287/84)
SRI.V.TEKCHAND, SR.GP
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
25.09.2023, ALONG WITH WA.1412/2023, THE COURT ON 10.10.2023
DELIVERED THE FOLLOWING:
WA Nos.1407 & 1412 OF 2023
-: 3 :-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
&
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
TUESDAY, THE 10TH DAY OF OCTOBER 2023 / 18TH ASWINA, 1945
WA NO.1412 OF 2023
JUDGMENT IN WP(C) 30515/2022 OF HIGH COURT OF KERALA
DATED 26.7.2023
----------------
APPELLANT/PETITIONER :-
ARDHER S, AGED 34 YEARS
S/O.T.T.K.SASI, REGIONAL OFFICER (TEMPORARY)
KERALA ARTISANS DEVELOPMENT CORPORATION
REGIONAL OFFICE, KOZHIKODE, RESIDING AT AZAD HOUSE,
CHOKLI P.O. THALASSERY, KANNUR DISTRICT,
PIN - 670 672
BY ADVS.
M.SASINDRAN
P.SHAHEED
RESPONDENTS/RESPONDENTS :-
1 STATE OF KERALA,
REPRESENTED BY ITS PRINCIPAL SECRETARY
INDUSTRIES DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695 001
2 THE KERALA ARTISANS DEVELOPMENT CORPORATION
REPRESENTED BY ITS MANAGING DIRECTOR, PATTOM P.O.,
KESAVADASAPURAM, THIRUVANANTHAPURAM, PIN - 695 004
3 THE MANAGING DIRECTOR
KERALA ARTISANS DEVELOPMENT CORPORATION,
PATTOM P.O., KESAVADASAPURAM, THIRUVANANTHAPURAM,
PIN - 695 004
4 THE KERALA PUBLIC SERVICE COMMISSION
REPRESENTED BY ITS SECRETARY, PATTOM,
THIRUVANANTHAPURAM, PIN - 695 004
WA Nos.1407 & 1412 OF 2023
-: 4 :-
BY ADVS.
SRI.V.TEKCHAND, SR.GP
SRI.K.S.ARUN KUMAR (B/O)
SRI.P.C.SASIDHARAN (B/O
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
25.09.2023, ALONG WITH WA.1407/2023, THE COURT ON 10.10.2023
DELIVERED THE FOLLOWING:
WA Nos.1407 & 1412 OF 2023
-: 5 :-
ANU SIVARAMAN, J. & C. JAYACHANDRAN, J.
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W.A. Nos.1407 & 1412 of 2023
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Dated this the 10th day of October, 2023
JUDGMENT
Anu Sivaraman, J.
W.A. No.1412/2023 is filed by the petitioner in W.P.(C)
No.30515/2022 against the common judgment in the said writ
petition and W.P.(C) No.8712/2023, while, W.A. No.1407/2023 is
filed by the appellant with leave against the said common judgment.
2. The petitioner in W.P.(C) No.30515/2022 was appointed
as Technical Supervisor in the 2nd respondent Corporation through
Kerala Public Service Commission (for short, 'the KPSC') on
10.1.2019. His probation was duly declared with effect from
10.1.2021. The promotion post of Technical Supervisor was
Regional Officer. The method of appointment to the post of
Regional Officer is by promotion from Technical Supervisor and by
direct recruitment in the absence of suitable persons for
appointment by promotion. It is contended by the learned counsel
for the appellant that a vacancy of Regional Officer had arisen
which was reported to the KPSC and the same was notified for
direct recruitment. It is submitted that after the appointment of the
WA Nos.1407 & 1412 OF 2023
appellant as Technical Supervisor, a further vacancy of Regional
Officer had also arisen. On finding that vacancies were available,
the appellant had sought appointment by promotion to the post of
Regional Officer. However, regular promotion was not granted and
steps were taken to fill up the second vacancy which had arisen
after the appellant had been appointed also through direct
recruitment. It is submitted that the appellant was put in additional
charge of Regional Officer as per order dated 30.4.2019 and was
continuing as such. While so, he had approached this Court seeking
appointment to the post of Regional Officer. However, the learned
Single Judge, on a finding that the appellant had not produced the
amended rules amending the qualification for appointment to the
post of Regional Officer as MBA, had dismissed the writ petition
imposing a cost of Rs.25,0000/-.
3. The learned counsel for the appellant submits that the
amendment was only in respect to appointment by direct
recruitment and there was no amendment to the qualification for
appointment to the post of Regional Officer by promotion and that
therefore, the dismissal of the writ petition on the said ground and
the allowing of W.P.(C) No.8712/2023 with a direction to the 3 rd
respondent to issue appointment letter to the petitioner therein was
erroneous.
WA Nos.1407 & 1412 OF 2023
4. The learned counsel for the appellant places reliance on
the judgments of the Apex Court in Deepak Agarwal and another
v. State of Uttar Pradesh and others [2011 KHC 4308],
Rajasthan Public Service Commission v. Chanan Ram and
another [1998 KHC 910], Jai Singh Dalal and others v. State of
Haryana and another [1993 KHC 1051], State of Haryana v.
Subash Chander Marwaha and others [1974 KHC 544],
Shankarsan Dash v. Union of India [1991 KHC 956] and
Jatinder Kumar and others v. State of Punjab and others
[1985 KHC 504]. It is contended that the conditions as on the date
when the vacancy is sought to be filled up are to be taken note of.
5. The learned counsel appearing for the employer would
contend that the vacancy to which the appellant claims appointment
by promotion had arisen prior to the appellant being qualified for
promotion. It is submitted that the appellant can claim appointment
by promotion to the post of Regional Officer only after he completes
his probation in the post of Technical Supervisor in view of Rule
28(a) of Part II KS & SSR which is applicable to the said service. It
is submitted that the appellant had successfully completed his
probation and his probation was declared only on 10.1.2021. He
could, therefore, not have been considered for appointment to any
vacancy which arose before the said date and that the vacancy
WA Nos.1407 & 1412 OF 2023
which arose on 17.6.2019 had, therefore, been rightly reported by
the employer to the KPSC and appointments had been made in
terms of the judgment of the learned Single Judge. It is further
contended that since the vacancy arose even before the appellant
became qualified, there is absolutely no error in reporting the
vacancy for direct recruitment.
6. The learned counsel appearing for the petitioner in W.P.
(C) No.8712/2023 would support the contentions of the employer.
It is contended that the appellant became qualified for promotion
only when he completed his probation and that the vacancies which
arose before he was qualified cannot be filled up by promoting him
after he becomes qualified. It is submitted that the Rules
specifically provide so. Attention was invited to Rule 2(11) of Part I
KSR and Rule 28(a) as well as Rule 28(b)(iA) of Part II KS & SSR in
support of his contention.
7. The learned counsel also places reliance on the
judgments of the Apex Court in State of Bihar v. Madhu Kant
Ranjan [AIR 2022 SC 1310] and Rakesh Bakshi and another v.
State of Jammu and Kashmir and others [2019 (3) SCC 511] as
also an order in Himachal Pradesh State Electricity Board Ltd.
and another v. Dharminder Singh [Civil Appeal No.8828/2022]
in support of the contention that the availability of a qualified
WA Nos.1407 & 1412 OF 2023
person has to be considered taking note of the date of occurrence of
the vacancy.
8. Having considered the contentions advanced, we notice
that the amendment of the Rules referred to by the learned Single
Judge are only with regard to the qualifications for appointment by
direct recruitment and do not apply to promotions from the post of
Technical Supervisor. However, we further notice that Ext.P3
recruitment rules specifically provide for appointment by direct
recruitment in the absence of qualified hands available for
promotion. The qualification for promotion has to be considered
taking note of the Special Rules as well as the General Rules which,
according to the parties, are indisputably applicable to the service
in question. Rule 28 provides that no person shall be appointed by
transfer or by promotion to a higher post unless he has successfully
completed probation in the lower post.
9. In the above view of the matter, though we do not agree
with the findings of the learned Single Judge with regard to the
amendment of the qualifications, we are of the opinion that the
conclusion reached by the learned Single Judge cannot be faulted
for other reasons, as already stated above. The judgment does not
require interference except for deleting the direction to the
appellant to pay costs since the said direction does not seem to be
WA Nos.1407 & 1412 OF 2023
justified in view of our findings with regard to the non-amendment
of the qualifications for appointment by promotion.
In the result, we vacate the findings in the judgment
relatable to the amendment in the Rules and imposing costs on the
petitioner. However, the dismissal of the writ petition is not
interfered with.
Sd/-
ANU SIVARAMAN
JUDGE
Sd/-
C. JAYACHANDRAN
JUDGE
Jvt/5.10.2023
