State Of Kerala @APPELLANT@Hash Arul Raj A.B And Ors

These appeals filed by the State of Kerala arise from the common judgment delivered by a learned single Judge of this court on 10.7.2017 in W.P.(C)Nos.32626, 35931 and 36633 of 2016. The writ petitioners had in the respective writ petitions challenged G.O. (Rt)No.722/2016/TD dated 9.9.2016, which was produced and marked as Ext.P12 in W.P.(C)No.32626 of 2016, as Ext.P11 in W.P. (C)No.35931 of 2016 and as Ext.P8 in W.P.(C)No.36633 of 2016. We shall, for the sake of convenience, treat W.P.(C)No.32626 of 2016 as the main case and unless otherwise mentioned, the documents referred to are those produced and marked either in the said writ petition or in the counter affidavit therein. The brief facts of the case are as follows:

The party respondents in these writ appeals are Office Attendants working in the Kerala State Financial Enterprises Limited, hereinafter referred to as "the KSFE" for short. The Board of Directors of the KSFE had at its 461st meeting held on 13.8.2014 resolved by Ext.P2 resolution to authorise the Managing Director to implement G.O.(P)No.1/2014/ P&ARD dated 3.1.2014 (Ext.P1 in all the writ petitions) in the KSFE under the same terms and conditions after obtaining the approval of the Government of Kerala and the Kerala Public Service Commission (hereinafter referred to as "the Commission" for short). Such a resolution was passed in the light of the demands raised by the recognised trade unions that the benefit of Ext.P1 Government order should be extended to Office Attendants working in the KSFE. It is relevant in this context to note that the minimum qualification prescribed for appointment as Junior Assistant in the KSFE is graduation. The unions had raised a demand that a large number of employees working as Office Attendants, who possess graduation, are also entitled to be given the benefits contemplated by the Government in Ext.P1 Government order.

Prior to the issue of Ext.P1 Government order dated 3.1.2014 the Government had by G.O.(P)No.11/1974/PD dated 10.1.1974 provided for appointment by transfer of low paid employees in the Subordinate Services in various Government departments to 5% of the vacancies in the post of LD Typist/LD Clerk/Typist Clerk/Copyist, which are all Class III posts, provided they pass the eligibility test conducted by the Commission by securing 40% marks. Later, pursuant to the recommendations of the Ninth Pay Commission, by G.O.(P) No.12/2010/P&ARD dated 8.4.2010, the percentage of reservation for appointment by transfer was raised to 10%.

While matters stood thus, on noticing that the persons appointed to different departments from the same rank list have different avenues of promotion, the Government sought the advice of the Commission regarding reservation of 10% of the vacancies in Class III posts to Class IV employees of various Government departments otherwise than through the Commission. Though the Commission was agreeable only to reservation of 5% of the vacancies, the Government disagreed with the Commission and decided to provide for a further 10% reservation for appointment by transfer to the post of LD Clerk/LD Typist to employees governed by the Special Rules for Last Grade Service and all employees in the Subordinate Services drawing salary below the scale of pay of LD Clerk/LD Typist. Thereupon the Government issued G.O.(P)No.1/2014/P&ARD dated 3.1.2014 (Ext.P1) above referred to.

Pursuant to the resolution adopted by the Board of Directors of the KSFE, its Managing Director moved the Government by sending a letter dated 16.9.2014, a copy of which is produced and marked as Ext.P2 in W.P.(C)No.35931 of 2016. The Government considered the said request and rejected it on the ground that Ext.P1 Government order has no application to public sector undertakings and that there is already a provision in the rules for transfer appointment of subordinate staff to 10% of the vacancies through the Commission. Ext.P3 dated 10.12.2014 produced and marked in W.P.(C)No.35931 of 2016 is a copy of the letter sent in that regard. The Managing Director thereupon sent Ext.P3 letter dated 24.1.2015 requesting the Government to pass favourable orders. The Government in turn sought further clarifications in Ext.P4 letter dated 28.9.2015. The Managing Director of the KSFE thereupon sent Ext.P5 letter dated 28.10.2015, the relevant portion of which reads as follows:

"Kind attention is invited to the references cited, The post of 'peon' (Last Grade Servant) in KSFE was re designated as 'Office Attendant' as per Go.No.286/2010/Td dated 10.12.2010. A copy of the same is attached for ready reference. Thus, it is clarified that the post of 'Office Attendant' belongs to the subordinate staff cadre in KSFE. It is an entry cadre post and recruitment to the post is made through KPSC. As per the recruitment rules of the Company, the basic qualification required for appointment to the post of Office Attendant in KSFE is a pass in the 6th standard. Further, as per the recruitment rules of the Company, 10% of vacancies in the post of Junior Assistants is reserved for effecting 'by transfer appointment' to the employees working as 'Office Attendant', through KPSC examination. Recently, as per reference 1st cited, the Government had issued orders for the 'by transfer promotion' of subordinate staff (Class IV) to another 10% of vacancies in the post of LD Clerk/LD Typists (Class III) based on qualification and seniority, in addition to the existing 10% by transfer promotion of Subordinate Staff through the suitability test conducted by the KPSC. Accordingly, the Company put forward a proposal based on the decision of the Board of Directors of the Company, vide reference 2nd cited, in order to implement the said Government Order in KSFE. The Government rejected the proposal vide reference 3 rd cited and the Company vide reference 4th cited requested to review the decision. A copy of 1 to 4 in the reference cited above is also attached herewith."

When no decision was taken in the matter, many among the writ petitioners in the instant writ petitions jointly filed W.P.(C)No.5920 of 2016 in this court. By Ext.P8 judgment delivered on 23.6.2016, a learned single Judge of this court directed the Government to consider the request made by the KSFE to review the earlier decision of the Government and to take a considered decision thereon after affording the authorised representatives of the petitioners and a senior officer of the KSFE an opportunity of being heard, without delay and at any rate within a period of two months from the date of production of a copy of the judgment. The Government thereupon heard the representatives of the writ petitioners and the Deputy General Manager of the KSFE and issued Ext.P12 Government order dated 9.9.1996, once again declining the request made by the KSFE. The instant writ petitions were thereupon filed challenging the aforesaid Government order.

The petitioners contended that as the benefit of Ext.P1 Government order has been extended to employees of the Kerala Toddy Workers Welfare Fund Board by Ext.P9 Government order to employees of the Kerala State Electricity Board by Ext.P10 Board order and to employees of the Kerala Motor Transport Workers Welfare Fund Board by Ext.P11 with the concurrence of the Government, denial of identical benefits to employees of the KSFE is arbitrary and discriminatory.

The State of Kerala resisted the writ petitions by filing separate counter affidavits. The stand taken by the Government was that the facts and circumstances leading to extension of the benefits contemplated in Ext.P1 Government order to persons employed in the Kerala Toddy Workers Welfare Fund Board and the Kerala State Electricity Board do not exist in the KSFE. The Government also contended that the benefit granted under Ext.P1 Government order is only for transfer appointment to the post of LD Clerk/LD Typist, for which the basic qualification is a pass in Class X and the said Government order has not been made applicable for appointment by transfer to the post of Assistant/other equivalent posts for which graduation is the basic qualification. The State of Kerala contended that such being the situation, there is no merit in the contention that the impugned Government order is arbitrary and discriminatory.

The learned single Judge considered the rival contentions and held by the impugned judgment that the denial of the benefits flowing from Ext.P1 Government order to employees of the KSFE is discriminatory. The learned single Judge accordingly allowed the writ petitions, quashed Ext.P12 Government order and directed the State of Kerala to reconsider the proposal submitted by the KSFE in Ext.P4 letter dated 24.1.2015, produced and marked in W.P.(C)No.35931 of 2016, afresh and pass orders thereon within a period of three months, after affording the writ petitioners an opportunity of being heard. The State of Kerala has, as stated earlier filed this appeal, aggrieved thereby.

We heard Smt.K.R.Deepa, learned Senior Government Pleader appearing for the appellant, Sri.K.Jaju Babu, learned Senior Advocate; Sri.Gopakumar R. Thaliyal and Kum.A.Aruna, learned counsel appearing for the writ petitioners and Sri.M.Gopikrishnan Nambiar, learned standing counsel appearing for the KSFE. We have also gone through the pleadings and the materials on record. By Ext.P1 order, the Government permitted employees governed by the Special Rules for the Kerala Last Grade Service and members of the Subordinate Services drawing salary below the scale of pay of LD Clerk/LD Typist to apply for appointment by transfer to 10% of the vacancies in the said cadres in addition to the appointment by transfer through the Commission. That benefit was extended to employees of the Kerala Toddy Workers Welfare Fund Board by Ext.P9 Government order dated 27.6.2014. It is no doubt true that the appointment by transfer permitted thereunder is to the post of LD Clerk/LD Typist. Ext.P10 order dated 18.10.2014 issued by the Kerala State Electricity Board discloses that the Government had permitted the Kerala State Electricity Board to implement Ext.P1 Government order in the Board as well. Though the Government had earlier accorded sanction to the Board to fill up 20% of the cadre strength of Junior Assistant/Cashier by transfer appointment based on the suitability test conducted by the Commission, the Government accorded sanction to fill up 10% of the posts in the cadre of Junior Assistant/Cashier without insisting on suitability test in terms of Ext.P1 Government order dated 3.1.2014. Ext.P11 order dated 1.1.2016 issued by the Chief Executive Officer, Kerala Motor Transport Workers Welfare Fund Board discloses that the Government had granted such sanction for appointment by transfer of Office Attendant as LD Clerk/LD Typist, pursuant to Ext.P1 Government order in the Kerala Motor Transport Workers Welfare Fund Board as well.

The petitioners in W.P.(C)No.35931 of 2016 have in W.A.No.2262 of 2017, arising from the said writ petition, produced as Annexure I, a copy of the G.O.(Rt)No.2001/15/AD dated 3.12.2015 whereby the Government extended the benefits flowing from Ext.P1 Government order dated 3.1.2014 to employees of the Plantation Corporation as well for the purpose of filling up 10% of the vacancies of the Junior Assistants/Field Assistants. It was having regard to the aforesaid admitted facts that the learned single Judge held in the impugned judgment that the denial of such opportunity to employees of the KSFE is arbitrary and discriminatory. The learned single Judge has also taken note of the fact that it was in addition to the provision for filling up 10% of the vacancies of LD Clerk/LD Typist by transfer appointment based on the suitability test conducted by the Commission that the Government had by Ext.P1 made provision for an additional 10% reservation. Though it was contended before us that Ext.P1 Government order contemplates only appointment by transfer to the post of LD Clerk/LD Typist and therefore, the KSFE cannot claim the said benefit for appointment to the post of Junior Assistant, we find that atleast in the case of employees of the Kerala State Electricity Board and the Plantation Corporation of Kerala, the Government have permitted implementation of Ext.P1. In such circumstances, we find no reason or justification to hold that the view taken by the learned single Judge is a perverse view warranting interference in an intra court appeal. That apart, the learned single Judge has only directed the Government to reconsider the issue after affording the writ petitioners an opportunity of being heard. Therefore for that reason also, we are not persuaded to interfere with the impugned judgment. We accordingly hold that there is no merit in the instant writ appeals. The writ appeals fail and are dismissed.

9.3.2018

These appeals were heard and dismissed by us in open court by judgment delivered on 1.3.2018. Thereupon, on mention being made by the learned Senior Government Pleader that there was inadvertent omission to refer to some aspects of the matter, this case was posted for being spoken to today. Today when the appeals were taken up, learned Senior Government Pleader submitted that the appellants have in grounds B and F of the memoranda of appeals specifically raised a contention that wherever the post of Assistant Grade exists in the Government departments (Secretariat, Office of the Advocate General, Local Fund Audit and Vigilance Tribunals) the maximum quota set apart for transfer appointment from among the last grade servants is only 4% and that in the KSFE there is already a quota of 10% reserved for last grade servants. Learned Government Pleader submitted that it was only in the appeal that the writ petitioners produced a copy of G.O. (P)No.2001/15/AD dated 3.12.2015 to contend for the position that the Government have approved the proposal for reserving 10% of the vacancies of Assistant/Junior Assistant in the Plantation Corporation of Kerala for appointment by transfer of lower grade employees reckoning their seniority and qualification, in addition to the already existing 10% reservation available for lower grade employees for appointment by transfer through the Commission. Learned Senior Government Pleader submitted that these aspects of the matter may also be directed to be considered by the Government while re-examining the issue pursuant to the directions issued by the learned single Judge. In our opinion, as the learned single Judge has only directed the Government to reconsider the matter, it is for the Government to take an appropriate decision in the matter having regard to all the materials before it including the facts above referred to.