Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN THURSDAY, THE 30TH DAY OF JUNE 2022 / 9TH ASHADHA, 1944 PETITIONER: S.VARGHESE AGED 40 YEARS S/O. SEBASTIAN, FLAT NO.16, RAJAJI NAGAR, THYCAUD VILLAGE, THIRUVANANTHAPURAM - 695 001. BY ADVS. P.N.MOHANAN C.P.SABARI AMRUTHA SURESH GILROY ROZARIO RESPONDENTS:
1 STATE OF KERALA REPRESENTED BY SPECIAL SECRETARY TO GOVERNMENT (INDUSTRIES), GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 2 DIRECTOR OF HANDLOOMS & TEXTILES, KERALA (REGISTRAR OF HANDLOOM CO-OPERATIVE SOCIETIES}, 4TH FLOOR, VIKAS BHAVAN, THIRUVANANTHAPURM - 695 033. 3 KERALA STATE HANDLOOM WEAVERS CO-OPERATIVE SOCIETY LTD. NO.H-232 (HANTEX), P. B. NO.64, OOTTUKUZHI, THIRUVANANTHAPURAM - 695 001, REPRESENTED BY MANAGING DIRECTOR. 4 MANAGING COMMITTEE KERALA STATE HANDLOOM WEAVERS CO-OPERATIVE SOCIETY LTD. NO.H-232 (HANTEX), P. B. NO.64, OOTTUKUZHI, THIRUVANANTHAPURAM - 695 001, REPRESENTED BY ITS PRESIDENT. BY ADV N.RAGHURAJ SC SMT RESMI THOMAS-GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
JUDGMENT
The petitioner says that he entered service as a ‘Porter’ in the Kerala State Handloom Weavers Co-operative Society (hereinafter referred to as ‘HANTEX’ for short) several years ago and that, after completing about 2 years in service, he was appointed to a substantive vacancy, through Ext.P1 proceedings. He alleges that, however, when the ‘HANTEX' sought approval for his appointment before the 2nd respondent, it was rejected through Ext.P11, saying that same was contrary to the applicable Recruitment Laws/Government Orders.
2. The petitioner contends that Ext.P11 is
wholly untenable because, as is evident from Ext.P9, the 2nd respondent - Director himself allowed filling up of the post of a 'Porter', which was then acceded to by the 'HANTEX', by accommodating him. He argues that, therefore, Ext.P11, to the extent to which it says that his appointment is contrary to the recruitment
Rules/Government Order, can never be found favour with and consequently, that Ext.P14
order issued by the Government, based on the
explanation given by the ‘HANTEX’ through Exts.P12 and P13, are also without legs to stand on. He thus prays that Exts.P11 and P13 be set aside and the ‘HANTEX’ be directed to grant him all eligible benefits, pursuant to the appointment through Ext.P1.
3. The afore submissions of Sri.C.P.Sabari
- learned counsel for the petitioner, were answered by Sri.Vivek Menon - learned counsel representing the learned Standing Counsel for the ‘HANTEX’, saying that his client had made
available the entire facts before the Government, as is evident from Exts.P12 and P13; but that in spite of the same, when
Ext.P14 order had been issued, they obtained no other option but to terminate the services of the petitioner. He prayed that, therefore, no further orders may be issued against his client and that they will abide by any decisions to be taken by this Court.
4. Smt.Resmi Thomas - learned Government Pleader, appearing for the official respondents, submitted that Exts.P11 and P14 are irreproachable because, as per the
applicable Rules for recruitment and the Government Orders, the post of 'Porter' could not have been filled up by accommodating the petitioner, who was only a daily wage employee. She submitted that, therefore, the 'HANTEX' is now obligated to terminate his services and make recruitment in terms of the approved Recruitment Rules.
5. In reply, Sri.C.P.Sabari, submitted that he is unable to understand the import of the afore submissions of the learned Government Pleader because, as has been already seen above, Ext.P9 makes it luculent that the post of 'Porter' has not been referred to the Public Service Commission for recruitment yet. He submitted that, therefore, one fails to gather what they mean when the Government takes the position that his client’s appointment is contrary to the Recruitment Rules. He argued that, on the contrary, it is in full confirmation with the same.
6. I must say that I find some force in
the submissions of Sri.C.P.Sabari because, Ext.P9 discloses that the 2nd respondent - Director had permitted the ‘HANTEX’ to make
appointment to one of the available vacancies of 'Porter'. It is thus that petitioner was appointed through Ext.P1. If that be so, and if the contentions of the petitioner are true to the effect that the post of 'Porters' has not been referred to the PSC for recruitment, one cannot fathom the reasons for the Authorities in having issued Exts.P11 and P14. This is more so because, the said orders do not say why the
appointment of the petitioner is in error, except stating that it is contrary to the recruitment Rules/Government Orders, but
without specifying anything.
7. In such circumstances, I am of the certain view that Exts.P11 and P14 cannot find my favour, especially in the light of Ext.P9; and that they are thus liable to be set aside.
Resultantly, I order this writ petition and set aside Exts.P11 and P14; however, leaving full liberty to the competent Authority to initiate any action against the appointment of the petitioner - if there are valid reasons for such purpose, however, only after hearing him and adverting to Ext.P9 earlier proceedings of the 2nd respondent - Director. Needless to say, until such time as the appointment of the petitioner is so set aside through a process known to law, he will be eligible to continue in service on the strength of Ext.P1 as also to all service benefits entitled thereunder. Sd/- DEVAN RAMACHANDRAN JUDGE SAS APPENDIX OF WP(C) 88/2022
PETITIONER'S EXHIBITS Exhibit P1 A TRUE COPY OF THE ORDER DATED 05.08.2017 UNDER A3/1375/HO HANTEX/2017 ISSUED BY THE MANAGING DIRECTOR OF THE 2ND RESPONDENT. Exhibit P2 A TRUE COPY OF NO OBJECTION IN THIS REGARD FROM THE OTHER EXISTING PORTERS DATED 16.12.2016. Exhibit P3 A TRUE COPY OF THE RECRUITMENT RULES GIVEN EFFECT TO FROM 26.03.2003. Exhibit P4 A TRUE COPY OF THE SAID G. O. NO.41/2016/ID IS DATED 29.12.2016 OF THE GOVERNMENT. Exhibit P5 A TRUE COPY OF THE PROCEEDINGS DATED 28.10.2013 OF THE MANAGING DIRECTOR. Exhibit P6 A TRUE COPY OF THE STATEMENT OF THE RECOVERY OF THE PROVIDENT FUND AND TO THE PENSION FUND DURING THE MONTH OF OCTOBER 2013. Exhibit P7 A TRUE COPY OF THE ORDER DATED 17.07.2014 OF THE THIRD RESPONDENT. Exhibit P8 A TRUE COPY OF RESOLUTION DATED 20.07.2017 NO.21 OF THE MANAGING DIRECTOR ALONG WITH THE SALARY SLIP. Exhibit P9 A TRUE COPY OF THE SAID COMMUNICATION DATED 15.05.2017 OF THE SECOND RESPONDENT. Exhibit P10 A COPY OF THE SAID RESOLUTION NO.13 DATED 08.09.2019 OF THE MANAGING COMMITTEE. Exhibit P11 A TRUE COPY OF THE COMMUNICATION DATED 29.06.2020 OF THE SECOND RESPONDENT. Exhibit P12 A TRUE COPY OF THE LETTER DATED 15.09.2020 OF THE THIRD RESPONDENT. Exhibit P13 A TRUE COPY OF THE REPORT DATED 31.08.2021 OF THE THIRD RESPONDENT. Exhibit P14 A TRUE COPY OF THE SAID ORDER DATED 29.11.2021 OF THE FIRST RESPONDENT.