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2010 DIGILAW 474 (KER)

Prof. Antony Thomas v. State of Kerala

2010-06-25

ANTONY DOMINIC

body2010
Judgment :- 1. Petitioner entered service as a Lecturer in the Technical Education Service on 26-7-1980. He was promoted as Assistant Professor and joined duty in the Government Engineering College, Kannur on 3-3-1987. While so he was promoted as Principal with effect from 1-10-2002. Subsequently, in 2005, he was transferred and was posted as Principal in the College of Engineering, Thiruvananthapuram and he continued in that post till he was transferred and posted as Principal in the Rajiv Gandhi Institute of Technology, Kottayam. While so, by Ext. P-1 order, he was again transferred and posted as Joint Director in the Office of the Director of Technical Education where he joined duty on 25-6-2007. As Joint Director, his probation was declared with effect from 20-7-2000 as per Ext. P-4 order. 2. In this writ petition, the complaint of the petitioner is regarding the ad hoc appointments that are being made to the post of Director of Technical Education. According to the Petitioner, he is the seniormost Joint Director in the Technical Education Service and is fully qualified and is eligible to be promoted and posted as Director of Technical Education. It is stated that when the petitioner was transferred and posted as Joint Director, the post was occupied by Sri Padmanabhan I.A.S., the then Director of Collegiate Education on full additional charge of the post. On completion of his term, Sri Mavoji I.A.S., the then Controller of Examination was put in full additional charge of the post of the Director of Technical Education. This was followed by Sri K. Sasidharan I.A.S., who was given full additional charge as per Ext.P-5 order. Subsequently, Sri Puneet Kumar I.A.S., who was the then Joint Excise Commissioner, was put in additional charge of the post by Ext.P-6 order. Sri. Puneet Kumar is now on deputation for a period of 5 years and now posted in New Delhi and there upon Ext.P-7 order was issued by the government on 13-4-2009, authorizing the 2nd respondent, an officer much junior to the petitioner to hold additional charge of the post of Director of Technical Education in the absence of Sri. Puneet Kumar. 3. When Ext. P-7 order was passed putting the 2nd respondent in additional charge, petitioner submitted Ext. P-8 representation, to which he was issued Ext. Puneet Kumar. 3. When Ext. P-7 order was passed putting the 2nd respondent in additional charge, petitioner submitted Ext. P-8 representation, to which he was issued Ext. P-9 reply stating that the additional charges are not given on seniority basis and that therefore none can claim additional charge as a matter of right. 4. Petitioner’s complaint is that although the post is to be filled up in terms of the special rules, and on a regular basis, by virtue of the ad hoc arrangements made by the Government from time to time, those in the feeder category, including himself, are deprived of promotional avenues and that persons junior to him, and those who are not even in the feeder category, are given additional charges of the post of the Director of Technical Education. It is in these circumstances the writ petition has been filed mainly praying that the respondents should be directed to consider and promote the petitioner to the post of Director of Technical Education in Kerala Technical Education Service forthwith. 5. Counter-affidavit has been filed by the first respondent. In the counter-affidavit, the first respondent submits that the impugned order putting the 2nd respondent in additional charge of the post of Director of Technical Education, is an order passed by the first respondent exercising its discretionary power to assign full additional charge of the head of department to any officer having the minimum requisite qualification and is competent to discharge their duties. It is stated that it is having regard to the competence of the 2nd respondent that he has been put in additional charge of the post of Director of Technical Education. It is contended that the petitioner cannot claim as a matter of right, such a responsible, sensitive and executive posts merely on the strength of seniority, since several factors apart from seniority are taken into account, while assigning full additional charge of such a responsible post. 6. The method of filling up the post of Director of Technical Education specified in the Special Rules for Kerala Technical Education Service, is by promotion from Principals of Engineering Colleges and in their absence, by direct recruitment. Petitioner, being the Principal of Engineering College, is in the feeder category, and is eligible to be considered for promotion. 6. The method of filling up the post of Director of Technical Education specified in the Special Rules for Kerala Technical Education Service, is by promotion from Principals of Engineering Colleges and in their absence, by direct recruitment. Petitioner, being the Principal of Engineering College, is in the feeder category, and is eligible to be considered for promotion. Thus, his eligibility to be considered for promotion to the post of Director of Technical Education cannot be disputed and in fact is not disputed in the counter-affidavit also. 7. As already seen, even according to the respondents, the post is a very sensitive and responsible post. If the post is such a sensitive, responsible and indispensable one, one fails to understand the logic in not filling up the post on a regular basis and for giving additional charge to the officers either within the feeder category or outside the feeder category. From the facts already seen, it is evident that at least from 2005 onwards, various officers belonging to Indian Administrative Service were holding the post on Full Additional Charge. Although it is always open to the Government to make ad hoc arrangements by putting officers of their choice in additional charge, such ad hoc arrangements can be justified only as temporary measure. In other words, ad hocism is an exception and cannot be the rule and should be pending regular appointments. In this case, ad hocism is adopted as the rule, and instead of making regular appointments to the post of Director of Technical Education, the Government have been resorting to ad hoc appointments for a fairly long time, whole employees in the feeder category are languishing without promotional avenues. Such an attitude is illegal and is destructive of the very efficiency in service. As pointed out by the Apex Court in Chandgi Ram V. University of Rajasthan 2001 (10) S.C.C. 556, “institutions not filling vacancies for a long time develop the culture of ad hocism. Sometimes not filling is for a coloured purpose to favour one or the other. This has to be denounced. This not only permits irregular appointees to continue for a long time but thwarts a regularly competent appointee to come in, deteriorating the very standard of the institution. Sometimes not filling is for a coloured purpose to favour one or the other. This has to be denounced. This not only permits irregular appointees to continue for a long time but thwarts a regularly competent appointee to come in, deteriorating the very standard of the institution. This brings in internal struggle to appoint or continue one or the other ad hoc appointees leading to inter secontest in courts, as in the present case taking large cake of time in the courts”. The contention that it was having regard to the competence of the 3rd respondent that he was put in additional charge of the post is also unacceptable for the reason that it was without assessing the competence of those in the feeder category in any manner known to law, that the 3rd respondent has been held competent to hold the post. Therefore, on the facts of this case, this court cannot uphold the attitude of the respondents in continuing to make ad hoc arrangements instead of filling up the post on a regular basis in the manner as provided in the special rules governing appointments to the post of Director of Technical Education. 8. The petitioner has sought a direction from this court to consider and promote him to the post of Director of Technical Education. Since the post is a selection post and as there are other candidates available in feeder category post of Principal, such a direction to the exclusion of the others and by-passing the method laid down in the special rules cannot be issued. In the circumstances, the only direction that can be issued is that the first respondent should take steps for effecting promotions to the post of Director of Technical Education on a regular basis in accordance with a special rules. 9. Therefore, first respondent is directed to take steps for making appointment to the post of Director of Technical Education considering the eligible candidates in the feeder category and in accordance with the special rules. This process shall be completed, as expeditiously as possible and at any rate within 2 months from the date of receipt of a copy of the judgment. Writ Petition is disposed of as above.