Judgment:
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE SMT. JUSTICE P.V.ASHA MONDAY, THE22D DAY OF JUNE20151ST ASHADHA, 1937 WP(C).No. 2848 of 2014 (E) --------------------------- PETITIONER: ----------- GEORGE A.L. APPAPARAMBIL HOUSE, PONJIKKARA, MULAVUKADU P.O. ERNAKULAM-682504. BY ADVS.SMT.SREEDEVI KYLASANATH SMT.V.RENJU RESPONDENT(S): -------------- 1. STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM-695001.
2. THE DIRECTOR OF COLLEGIATE EDUCATION OFFICE OF THE DIRECTOR OF COLLEGIATE EDUCATION THIRUVANANTHAPURAM-695001.
3. THE MANAGER ST. ALBERT'S COLLEGE GOVERNING BODY, ERNAKULAM-682018.
4. MERCY K.A. W/O. BENNY, PEON, ST. ALBERT'S COLLEGE ERNAKULAM - 682018.
5. ROSY VARGHESE W/O. LATE VARGHESE, PEON, ST. ALBERT'S COLLEGE ERNAKULAM-682018.
6. THE REGISTRAR M.G.UNIVERSITY, ATHIRAMPUZHA, KOTTAYAM-686562. R4-R5 BY ADV. SRI.A.M.NASEER R3 BY ADV. SRI.P.GEORGE WILLIAM R-R6 BY ADV. SRI.VARUGHESE M.EASO, SC, M.G.UNIVERSITY R1-R2 BY GOVERNMENT PLEADER SHRI RAFEEQ V.K R BY DR.P.LEELAKRISHNAN, SC, M.G.UNIVERSITY THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON2206-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 2848 of 2014 (E) --------------------------- APPENDIX PETITIONER(S)' EXHIBITS ----------------------- EXT.P1: TRUE COPY OF G.O.(RT) NO.257/2012/H.EDN. DATED62/2012. EXT.P2: TRUE COPY OF THE PANEL OF CANDIDATES SELECTED FOR NON- TEACHING STAFF VACANCIES ON48/2012 BY3D RESPONDENT. EXT.P3: TRUE COPY OF THE ORDER
NTS/M/09/2012 DATED138/2012. EXT.P3(a): TRUE COPY OF THE ORDER
NTS/M/11/2012 DATED138/2012. EXT.P4: TRUE COPY OF ORDER
NO.E/443/2012 DATED109/2012. EXT.P5: TRUE COPY OF ORDER
NO.13134/D3/13/H. EDN. DATED294/2013. EXT.P6: TRUE COPY OF ORDER
NO.G.O.(Rt) NO.106/2014 H. EDN. DATED181/2014 OF1T RESPONDENT. EXT.P7: TRUE COPY OF REPRESENTATION DATED261/2014 SUBMITTED BEFORE1T RESPONDENT. EXT.P8: TRUE COPY OF REPRESENTATION DATED261/2014 SUBMITTED BEFORE3D RESPONDENT. EXT.P9: TRUE COPY OF G.O(Rt) NO.479/2014/H.Edn DT.5.3.2014. EXT.P10: TRUE COPY OF THE NOTIFICATION DT.7.3.12 ISSUED BY R3 INVITING APPLICATION FOR APPOINTMENT TO THE POST OF PEON PUBLISHED IN MATHRUBHUMI DAILY. EXT.P11: TRUE COPY OF THE REPRESENTATION DT.8.4.14 SUBMITTED BEFORE R2. EXT.P12: TRUE COPY OF THE JUDGMENT
DT.6.2.13 IN WPC.6085/13. EXT.P13: TRUE COPY OF THE NOTIFICATION ISSUED BY3D RESPONDENT INVITING APPLICATION FOR APPOINTMENT TO THE POST OF PEON PUBLISHED IN NEW INDIAN EXPRESS DAILY DT.28.5.2014. EXT.P14: TRUE COPY OF THE ORDER
DATED1206.2015 APPOINTING PETITIONER AS PEON. RESPONDENT(S)' EXHIBITS ----------------------- NIL. /TRUE COPY/ P.S TO JUDGE P.V.ASHA, J.
----------------------------------------------------- W.P(c) No.2848 of 2014-E ---------------------------------------------------- Dated this the 22nd day of June, 2015 JUDGMENT
The petitioner has filed an affidavit producing the order appointing him as `Peon' in the St.Albert's College with effect from 12.06.2015. In the light of the above fact, no further orders are required in this Writ Petition. This Writ Petition is accordingly closed. Sd/- (P.V.ASHA, JUDGE) rtr/ W.P(c) No.2848 of 2014-E2P.V.ASHA, J.
----------------------------------------------------- W.P(c) No.2848 of 2014-E ---------------------------------------------------- Dated this the 22nd day of May, 2015 JUDGMENT
The petitioner is one of the candidates included in Ext.P2 select list for appointment of Peons in St.Albert's College, Ernakulam. The 3rd respondent Manager issued Ext.P10 notification dated 7.3.2012, inviting applications for appointment to various non teaching posts in the College including that of Peon. The qualification and age were stated to be as 'in accordance with the University Statutes and Government Rules'. After conducting a process of selection, Ext.P2 select list was published, which contains the names of 12 candidates, for appointment to the post of Peon, as against 4 vacancies notified. The name of the petitioner figures at Sl.No.6 therein. Sl.Nos.2 and 4 in the select list are respondents 4 and 5 herein. The petitioner is challenging their inclusion in the select list as well as their appointment on the ground that they are over aged. As W.P(c) No.2848 of 2014-E3per the University Statutes the age and educational qualification in the case of non-teaching staff in aided Colleges is as applicable to those in Government Colleges. The upper age limit prescribed for them is 35 years for open candidates. Relaxation of 3 years is admissible to the candidates belonging to Other Backward Communities and of 5 years for candidates belonging to Scheduled Caste and Scheduled Tribe. After publication of the select list, the 3rd respondent made appointments against the notified vacancies.
2. As per Exts.P3 and P3(a) orders issued on 13.08.2012, respondents 4 and 5 were appointed as Peons in the 3rd respondent College in the pay scale of Rs.8,500-13210 w.e.f 13.08.2012, subject to the provisions of Mahatma Gandhi University Ordinances, 1983, Statutes and Regulations made thereunder and such other rules and orders issued from time to time by the Director of Collegiate Eduction or Mahatma Gandhi University etc. Orders of appointment of appointed candidates including that of respondents 4 and 5 were forwarded for approval, to the Director of Collegiate Education as per Ext.P4 letter dated 10.09.2012.
3. Government, apparently on the basis of a letter from W.P(c) No.2848 of 2014-E4the Director of Collegiate Education seeking clarification (as seen from Ext P5), examined the matter and found that respondents 4 and 5 were over aged. As per Ext.P5 order, Government directed the management to nullify their appointments and to expel them from the post. The college authorities were directed to make fresh selection to the two posts of last grade servants and of one Herbarium Keeper and to nullify the appointments after completing all formalities as per rules and after getting revised sanction from the Government. In Ext.P5 the Government further directed the Manager/Principal of the College to furnish explanation for the gross negligence and disobedience shown to the Government direction/rules and statutes in force.
4. Thereupon respondents 4 and 5 approached the Government seeking age relaxation. Thereafter they approached this Court in W.P(c) No.19187 of 2013. This Court by judgment dated 13.8.2013 disposed of the Writ Petition, without going into the merits, directing the Government to consider and pass orders on the representations. By Ext.P6 order issued on 18.1.2014, the Government rejected the requests of respondents 4 and 5 as well as that of the Manager of the college, saying that W.P(c) No.2848 of 2014-E5the appointments were contrary to rules. In Ext.P6 it was also stated that the Government have not issued any orders enhancing the upper age limit in the case appointment of non teaching staff to 40 years.
5. At this stage, the petitioner approached the Government as well as the Manager of the college by submitting representations Exts.P7 and P8 respectively, seeking appointment in the place of the respondents 4 and 5 in view of the direction of Government to nullify their appointment. Immediately thereafter he approached this Court filing this Writ Petition on 28.1.2014. It is seen that this Writ Petition came up for admission on 29.01.2014, when urgent notice was ordered to respondents 3 and 5 and notice was taken for other respondents by the learned Government Pleader and the learned Standing Counsel.
6. While matters stood so, the Government, on a review petition by the respondents 4 and 5, issued Ext.P9 order on 5.3.2014 reversing their decision and granting them relaxation from upper age limit. Director of Collegiate Education was directed to approve the appointment of respondents 4 and 5, with effect from the date of occurrence of vacancy as per the W.P(c) No.2848 of 2014-E6staff pattern. The relevant portion of Ext.P9 order reads as follows: "Government have examined the matter with respect to the review petition submitted by Smt.Jossy Liberra K.F, Smt.Rosy K.G and Smt.Mercy K.A and it is found that the incumbents are overaged and their chances of getting another employment are also remote. Hence, Government are pleased to grant relaxation to upper age limit from existing Rules, to Smt.Jossy Liberra K.F, Smt.Rosy K.G and Smt.Mercy K.A, for getting appointment as Last Grade Servants in St.Albert's College, Ernakulam, as a special case with strict warning to the Manager, St.Albert's College against the appointment of these over aged persons. Since Shri Jossy Liberra is not qualified for the post of Library Assistant, one post of Library Assistant in St.Albert's College, Ernakulam is down graded to the post of Last Grade Servant with direction that the post should not be upgraded without prior permission from Government. The Director of Collegiate Education may issue formal approval orders with effect from the date of occurrence of vacancy as per the prevailing staff pattern, after absorbing the supernumerary posts, if any, and subject to satisfaction of the qualification of the incumbents." The petitioner is challenging this order issued by the Government.
7. Respondents 4 and 5 have filed counter affidavit. According to them, Government have issued order raising upper W.P(c) No.2848 of 2014-E7age limit of teaching staff to 40 years and therefore a similar treatment is admissible in the case of non teaching staff also. Since they are at the age of 40 and 41 at the relevant time, the possibility of getting appointment for them was remote and therefore Government relaxed the upper age limit in their case on their request.
8. I heard the learned counsel appearing on either side and the learned Government Pleader. According to the learned counsel appearing for the 3rd respondent Management, they have no special interest in appointing respondents 4 and 5. But they were under the impression that the judgment relating to upper age limit for appointment of teaching staff and their upper age limit were applicable to the case of non teaching staff in the colleges also. I find it difficult to believe such contentions.
9. The Government have also filed a counter affidavit explaining their initial attitude, as evident Exts.P5 and P6 orders, when they frowned upon the management over the flagrant violation of rules in making the appointments and rejection of the request for age relaxation. But without any further explanation, they turned round, and granted relaxation in Ext P9, when they realised from the review petition of respondents 4 and W.P(c) No.2848 of 2014-E85, that their chances of getting another employment was remote for them, as they were over aged. and when they noticed that they were included in the rank list for no fault of theirs. These are the factors which forced them to take a lenient view.
10. The learned counsel for the petitioner relied on the dictum laid down in Union of India and another v. Arulmozhi Iniarasu and Ors. [2011 (7) SCC397. The Apex Court was considering the question of relaxation from upper agelimit in respect of appointment to the post of Sepoy in Central Excise. The claimants therein were engaged on part-time basis, for several years in that establishment when recruitment processes was initiated. There the Apex Court held that engagement of those persons as casual labourers even for considerably long duration did not confer any legal right on them for seeking a mandamus for relaxation of age limit. It was further held that relaxation in age limit over and above what was stipulated in recruitment rules/advertisement was unsustainable.
11. Smt.Sreedevi Kylasanath further relied on the decision in Distt.Collector & Chairman, Vizianagaram S.W.R.S Society v. M.Tripura Sundari Devi [(1990) 3 SCC655, wherein, the Apex Court was considering the issue W.P(c) No.2848 of 2014-E9regarding appointment of a teacher who did not have the minimum qualification prescribed in the advertisement. The appointment given to a person without having the notified qualification was found to be a fraud on public. Para.6 of the judgment is relevant in this context which reads as follows: "It must further be realised by all concerned that when an advertisement mentions a particular qualification and an appointment is made in disregard of the same, it is not a matter only between the appointing authority and the appointee concerned. The aggrieved are all those who had similar or even better qualifications than the appointee or appointees but who had not applied for the post because they did not possess the qualifications mentioned in the advertisement. It amounts to a fraud on public to appoint persons with inferior qualifications in such circumstances unless it is clearly stated that the qualifications are relaxable. No court should be a party to the perpetuation of the fraudulent practice. We are afraid that the Tribunal lost sight of this fact." There is a specific direction that no Court should be a party to the perpetuation of appointing persons with inferior qualifications. Further she relied on Ibrahim v. District Medical Officer [1995(1) KLT704, which was in respect of the relaxation of qualification, without any reference to the same in the advertisement. This Court was considering the question of W.P(c) No.2848 of 2014-E10appointment of non medical supervisors in Health Service Department. In para.7 of the judgment this Court relied on the judgment reported in 1972 SLR706- Kuldip Singh v. State of Punjab, which reads as follows: "No relaxation can be granted when an advertisement has been issued inviting applications and persons possessing the qualifications advertised are available and submit their applications. If a relaxation has to be allowed, the advertisement should be issued again so that all eligible persons, in view of the relaxation to be allowed, should be able to apply for the job. Once the qualifications have appeared in the advertisement inviting applications, those qualifications cannot be changed and the selection has to be made out of the candidates possessing those qualification." 12. As per the University Statutes, the age prescribed for appointment to the last grade servants including the post of Peon which is subsequently re-designated as Office Attendant is 35 years in the case of open candidates. Relaxation by 3 years to other backward classes and by 5 years to SC/ST is also permissible under Rule 10(c) of Kerala State and Subordinate Service Rules 1958. Respondents 4 and 5 were aged 40 and 41. As per the provisions in the Statutes, the rules applicable to the staff in the Government colleges are applicable to those in aided W.P(c) No.2848 of 2014-E11colleges also. There is no provision for any relaxation from upper age limit. There is no dispute over the fact that respondents 4 and 5 are over aged.
13. The question to be considered is whether Govt was right in granting them relaxation from upper age limit. No provision of law is mentioned in Ext P9, under which relaxation was granted. It is a case where the select list Ext.P2 contains the number of 12 candidates including the petitioner as against 4 vacancies notified. These 12 candidates were, selected apparently, from among a large number of candidates who responded to the notification. The respondents do not have a case that there are no candidates available within the age limit. That being so, there is no circumstance warranting grant of relaxation. The power if any vested in the Government to relax the upper age limit, is not to be exercised arbitrarily, at the whims and fancies of those in the helm of affairs or on extraneous considerations. Rule of law inhibits arbitrary action. State, being a model employer is not supposed to adopt such arbitrary methods in violation of the fundamental right of duly qualified candidates like petitioner for equality before law and for equality of opportunities in matters relating to employment W.P(c) No.2848 of 2014-E12under State guaranteed under Articles 14 and 16 of the Constitution of India. It is settled law that every action of the State should be fair and reasonable. The circumstances of this case clearly indicate that the Government which arrived at a decision initially against the appointment, had an afterthought, immediately after filing the Writ Petition, and issued the impugned order, in order to favour the respondents 4 and 5, on 5.3.2014, on which day even the code of conduct for election to parliament, had come into force. It is to be noted that there are large number of persons in the State of Kerala who are having the educational qualification for appointment as Office Assistants, who are within as well as beyond the prescribed age limit. The number of such candidates who have crossed the upper age limit will be innumerable, with remote chances for appointment. There will be several such persons who did not even think of submitting application for the selection. Just because the respondents 4 and 5 applied and the 3rd respondent included them in the select list and appointed them illegally, there is no justification on the part of Govt in awarding premiums like this for committing illegalities. It is to be noted that there are large number of persons in the State of Kerala W.P(c) No.2848 of 2014-E13who are having the educational qualification for appointment as Office Assistants, who are within as well as beyond the prescribed age limit. There are several persons who are over aged awaiting employment despite having educational qualification. Therefore the reasons stated in the order Ext.P9 is absolutely unreasonable and inequitable.
14. As Ext P2 select list contains 12 candidates as against the 4 vacancies notified and 8 more candidates including the petitioner are available therein it is not necessary to conduct any fresh process of selection, as directed by Govt in Ext P5. The respondents 4 and 5 shall be replaced by candidates who are duly qualified, among the remaining 8 therein in accordance with their rank. In the above circumstances I quash Ext.P9 and the direction in Ext P5 to the extent it directs fresh selection. The respondents 1 to 3 shall see that 2 vacancies occupied by the respondents 4 and 5, are filled up by candidates duly qualified and included in the select list Ext.P2, on the basis of their rank without any further delay and at any rate within a period of one month from the date of receipt of this judgment. On such appointment their cases for approval shall also be forwarded and W.P(c) No.2848 of 2014-E14considered and ordered passed without further delay. The question regarding the other consequential benefits like pay and allowances etc, if any, are left open. This Writ Petition is allowed accordingly. (P.V.ASHA, JUDGE) rtr/