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2008 DIGILAW 747 (KER)

Jeevamol v. State of Kerala

2008-11-28

P.N.RAVINDRAN

body2008
Judgment : 1. The dispute involved in these Writ Petitions relate to appointment to the post of Artist in the Kerala Archaeological Subordinate Service. They were therefore heard together and are being disposed of by this common judgment. W. P. (C) No.5699 of 2006 2. The petitioner entered service as Draftsman in the Kerala Archaeological Subordinate Service on 25.11.2002 pursuant to Ext. P1 appointment order dated 12.11.2002 issued by the Director of Archaeology. Even before the petitioner entered service, by Ext. P3 letter dated 20.9.2001, the Director of Archaeology had reported one vacancy of Artist to the Kerala Public Service Commission, hereinafter referred to as the "Commission" for short, for appointment by direct recruitment. The Commission accordingly issued a notification inviting applications from eligible persons for appointment by direct recruitment to the post of Artist in the Kerala Archaeological Subordinate Service. 3. As per the Special Rules for the Kerala Archaeological Subordinate Service (Ext. P4), the method of appointment prescribed for the post of Artist is by promotion of Draftsman and in the absence of qualified hands available for promotion from the category of Draftsman, by direct recruitment. The selection process pursuant to Ext. P3 letter sent by the Director of Archaeology got delayed. The Commission issued the notification on 16.12.2003. In the meanwhile, the petitioner entered service as Draftsman on 25.11.2002 pursuant to Ext. P1 order and later he was also promoted on a provisional basis by Ext. P2 order dated 9.12.2003 to the category of Artist. On 29.8.2006, the Commission published the ranked list of candidates selected for appointment by direct recruitment to the post of Artist from the open market. The fourth respondent is serial No. 2 in the ranked list thus published. 4. After the petitioner was appointed as Artist and before the ranked list was published, the Director of Archaeology sent Ext. P5 letter dated 13.6.2005 to the Secretary of the Commission requesting the Commission to drop the proceedings initiated by it for direct recruitment to the category of Artist. In Ext. P6 letter dated 28.10.2005 the Director also requested the Secretary to Government, Department of Cultural Affairs to cancel the direct recruitment of Artist through the Commission or in the alternative to sanction a supernumerary post. By Ext. P7 letter dated 11.2.2006, the Government rejected the request made in Ext. In Ext. P6 letter dated 28.10.2005 the Director also requested the Secretary to Government, Department of Cultural Affairs to cancel the direct recruitment of Artist through the Commission or in the alternative to sanction a supernumerary post. By Ext. P7 letter dated 11.2.2006, the Government rejected the request made in Ext. P6 and directed the Director of Archaeology to revert the petitioner as Draftsman and to keep the post of Artist reserved for direct recruits. This Writ Petition was thereupon filed challenging Ext. P7 and seeking the following reliefs: "i) Issue a writ of certiorari or any other appropriate order or direction, quashing Ext. P7 as illegal, arbitrary and unsustainable in the eye of law. ii) Issue a writ of mandamus or any other appropriate order or direction, commanding the 3rd respondent to drop the recruitment process initiated to fill up the post of Artist/Designer in the office of the 2nd respondent. iii) Issue a writ of mandamus or any other appropriate order or direction, commanding the respondents to fill up the post of Artist by promotion from the post of Draftsman Grade II as specified under Ext. P4 Rules. iv) Declare that the petitioner is entitled to be promoted to the post of Artist in the office of the 2nd respondent and further declare that the post of Artist/Designer is to be filled by promotion only." 5. The petitioner contends that as he entered service on 25.11.2002 as Draftsman, it cannot be said that there are no qualified hands in the Department and therefore direct recruitment could not have been made to the category of Artist after 25.11.2002. The petitioner also relies on Ext. P5 letter dated 13.6.2005 sent by the Director of Archaeology to the Secretary of the Commission requesting the Commission not to finalise the selection process. Shorn off details, the petitioner's contention is that direct recruitment cannot now be made as he is a qualified person available in the Department since 25.11.2002. W.P.(C). No.29571 OF 2007 6. The petitioner herein who is also the additional fourth respondent in W.P.(C).No. 5699 of 2006 is a candidate ranked second in the ranked list published on 29.8.2006. She had applied pursuant to the notification issued by the Commission on 16.12.2003 for appointment by direct recruitment to the category of Artist in the Kerala Archaeological Subordinate Service. She was selected and included in the ranked list published on 29.8.2006. She had applied pursuant to the notification issued by the Commission on 16.12.2003 for appointment by direct recruitment to the category of Artist in the Kerala Archaeological Subordinate Service. She was selected and included in the ranked list published on 29.8.2006. She has filed this Writ Petition challenging the promotion of the petitioner in W.P.(C).No. 5699 of 2006, who is fifth respondent herein as Artist. The petitioner contends that when the vacancy of Artist was reported to the Commission on 20.9.2001, the fifth respondent was not in service, that when the notification inviting applications was issued, the fifth respondent had not completed his probation in the category of Draftsman, that he is therefore not eligible to be promoted as Artist and that direct recruitment was properly resorted to. The petitioner also relies on the decision of the Division Bench of this Court in K. Harindran v. State of Kerala, (2006 (4) KLT SN 75 (C.No.105) = ILR 2006 (4) Ker. 680) to contend that as the vacancy was reported to the Commission on 20.9.2001, the petitioner who entered service more than one year thereafter, cannot stand in the way of direct recruitment being made. 7. The Commission contends that a vacancy of Artist was reported to it by Ext. P3 letter dated 20.9.2001 produced in W.P.(C).No. 5699 of 2006 and that as the selection process was thus initiated before the petitioner in W.P.(C).No. 5699 of 2006 entered service, the Commission was justified in proceeding with the selection process. The Commission also contends that in view of G.O. (MS). No.232/71/PD dated 12.8.1971 and Circular No. 4441/Adv-C3/97/P&ARD dated 21.3.1997 vacancies which have been reported to the Commission cannot be filled up by promotion of in-service candidates when appointment by direct recruitment is also a permissible method of appointment. 8. I have considered the submissions made at the Bar by Sri. K. P. Dandapani, the learned Senior Advocate appearing for the petitioner in W.P(C).No. 5699 of 2006, Dr. George Abraham, the learned counsel appearing for the petitioner in W.P.(C).No. 29571 of 2007, Smt. T. B. Remani, the learned Government Pleader appearing for the State of Kerala and Sri. Alexander Thomas, the learned standing counsel appearing for the Commission. The pleadings disclose that the vacancy of Artist against which the petitioner in W.P.(C).No.29571 of 2007 claims appointment by direct recruitment and against which the petitioner in W.P.(C).No.5699 of 2006 was promoted by Ext. Alexander Thomas, the learned standing counsel appearing for the Commission. The pleadings disclose that the vacancy of Artist against which the petitioner in W.P.(C).No.29571 of 2007 claims appointment by direct recruitment and against which the petitioner in W.P.(C).No.5699 of 2006 was promoted by Ext. P2 order dated 19.12.2003 was reported to the Commission on 20.09.2001. The vacancy was reported evidently and admittedly for the reason that no in-service candidate was available for promotion. The Commission thereafter took steps to invite applications and also published a ranked list. The petitioner in W.P.(C).No. 29571 of 2007 applied, was selected and included as No. 2 in the ranked list published on 29.8.2006. After the vacancy was reported to the Commission the Director of Archaeology promoted the petitioner in W.P.(C).No. 5699 of 2006 on a provisional basis as Artist, by Ext. P2 order dated 9.12.2003. The Director thereafter moved the Commission in Ext. P5 letter dated 13.6.2005 to stop the selection process initiated pursuant to Ext. P3. The Director also moved the Government to withdraw the recruitment process or in the alternative to create a supernumerary post of Artist. The Government by Ext. P7 letter 11.2.2006 declined both the requests made by the Director and directed that the petitioner in W.P. (C).No. 5699 of 2006 should be reverted as Draftsman. 9. A similar question was considered by a Division Bench of this Court in K. Harindran v. State of Kerala and Others (supra). After referring to Circular No.4441/Adv-C3/97/P& ARD dated 21.03.1997 it was held that once a vacancy is reported to the Commission, the vacancy cannot be filled up by promoting an in-service candidate. It was also held that the date of occurrence of vacancy is the crucial date for making appointment and that once the vacancy is notified, it cannot be filled up by direct recruitment. A similar view has been taken by another Division Bench of this Court in Velayudhan v. Secretary to Govt. (1985 KLT 793) wherein also, it was held that appointment cannot be made by promotion to a vacancy reported to the Kerala Public Service Commission. 10. In the instant case, the vacancy of Artist was reported to the Commission on 20.09.2001, more than a year before the petitioner in W.P.(C).No.5699 of 2006 entered service. A vacancy of Artist was in existence as on the date on which it was reported to the Commission by Ext. 10. In the instant case, the vacancy of Artist was reported to the Commission on 20.09.2001, more than a year before the petitioner in W.P.(C).No.5699 of 2006 entered service. A vacancy of Artist was in existence as on the date on which it was reported to the Commission by Ext. P3 letter dated 20.09.2001. There is no pleading or proof to indicate that as on the said date there were eligible Draftsmen in the Kerala Archaeological Subordinate Service for appointment by promotion to the post of Artist. The very fact that the post was reported to the Commission for direct recruitment indicates that there were no qualified Draftsmen in the Department. It was against the said vacancy that was reported to the Commission in the letter dated 20.09.2001 that the petitioner in W.P.(C).No.29571 of 2007 applied, was selected and included in the ranked list. In the instant case the vacancy arose before 20.09.2001. In any case, the vacancy was in existence on that date. Therefore, going by the principles laid down by this Court in K. Harindran v. State of Kerala (supra) and Velayudhan v. Secretary to Govt. (supra), the said vacancy could not have been filled up by promoting the petitioner in W.P.(C).No. 5699 of 2006. The stand taken by the Government in Ext. P7 produced in W.P.(C).No. 5699 of 2006 cannot therefore be faulted. The relief sought for by the petitioner in W.P.(C).No. 5699 of 2006 cannot therefore be granted. 11. By an interim order passed by this Court in W.P.(C).No. 29571 of 2007, the petitioner therein was advised by Ext. R4(b) memo dated 07.07.2008 produced in W.P. (C).No. 5699 of 2006. However, the appointment order did not follow because of the directions issued by this Court in W.P.(C).No. 29571 of 2007 to the effect that the advice would be provisional and subject to the result of the Writ Petition. In the view that I have taken, no relief can be granted to the petitioner in W.P.(C).No. 5699 of 2006. W.P.(C).No. 5699 of 2006 accordingly fails and is dismissed. Consequently, the petitioner in W.P.(C).No. 29571 of 2007 will be entitled to be appointed against the post of Artist in the Kerala Archaeological Subordinate Service. In the view that I have taken, no relief can be granted to the petitioner in W.P.(C).No. 5699 of 2006. W.P.(C).No. 5699 of 2006 accordingly fails and is dismissed. Consequently, the petitioner in W.P.(C).No. 29571 of 2007 will be entitled to be appointed against the post of Artist in the Kerala Archaeological Subordinate Service. W.P. (C).No. 29571 of 2007 is accordingly allowed and the Director of Archaeology is directed to appoint the petitioner in W.P.(C).No. 29571 of 2007 as Artist based on the advice made by the Commission as per advice memo dated 7.7.2008. Necessary orders in that regard shall be issued within one month from today.