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Kerala High Court
Kerala Bhasha Institute Emploees vs State Of Kerala, Represented By ... on 7 February, 2011

IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 16372 of 2007(Y)

1. KERALA BHASHA INSTITUTE EMPLOEES

... Petitioner

2. DAISY JACOB, U.D.CLERK,

Vs

1. STATE OF KERALA, REPRESENTED BY THE

... Respondent

2. STATE INSTITUTE OF LANGUAGES,

3. DIRECTOR, STATE INSTITUTE OF

4. SAIDALAVI, HEAD CLERK,

For Petitioner :SRI.N.DHARMADAN (SR.)

For Respondent :SRI.P.K.VIJAYAMOHANAN

The Hon'ble MR. Justice S.SIRI JAGAN

Dated :07/02/2011

O R D E R

S.SIRI JAGAN, J.

==================

W.P(C) Nos. 16372/2007 and 29585/2010

==================

Dated this the 7th day of February, 2011

J U D G M E N T

W.P.(C) No.16372 of 2007 is filed by an Association of Employees of the Kerala State Institute of Languages (hereinafter referred to as the Institute) and one of its members against the action of the Director of the Institute in appointing the 4th respondent to the post of Cashier in the Institute, overlooking the superior claim of the second petitioner and the other writ petition is filed against the action of the Director in ordering recovery of conveyance allowance paid to the same petitioner, in recognition of her physical disability. Since some allegations in support of the prayers are common, these two writ petitions are being disposed of by this common judgment.

2. The Kerala State Institute of Languages is an autonomous, albeit, Government owned, institution. The institute has under it, a separate unit called Vijnana Mudranam Press (hereinafter referred to as the Press). The 2nd petitioner was originally appointed as a Lower Division Compositor (referred to as Lower Division Clerk by the petitioners) in the Press on 19-10-1974. She was promoted as a Warehouseman-cum-Type Store keeper (referred to as Upper Division Clerk by the petitioners) in 1986. The 2nd petitioner lost her husband and suffered some disability in an accident on account of which, she w.p.c.16372/07 & cc. 2

requested for a posting as a clerk in the Institute. The then Director of the Institute, by Ext. P12, sought sanction from the Chairman of the Governing Body of the Institute to create a supernumerary post of Lower Division Clerk in the Institute and to accommodate the 2nd petitioner in that post. Apparently in anticipation of sanction, the 2nd petitioner was so accommodated. The said action of the Director was ratified by the Governing body which met on 11-1-1996 and the 2nd petitioner was appointed in a regular vacancy, with effect from 11-1-1996, by Ext R2(a) order of the Director. In that order it was stipulated that the service of the 2ndpetitioner in the Press will not be reckoned for any service benefits and her pay and allowances would be protected. In the same meeting of the Governing Body, it was decided to appoint one Sri. S.Sreekantan Nair, working in the Press, also as Lower Division Clerk in the Institute and by Ext. R2(b) order of the Director dated 2-3-1996 his appointment by transfer as Lower Division Clerk in the Institute was also regularised with effect from 11-1-1996. In that order, it was made clear that he will be the junior-most in the category of L.D.C. in the Institute and his service in the Press will not be reckoned for any service benefits, but his present pay would be protected. He was later promoted as U.D. Clerk, Head Clerk and Junior Superintendent, although there was no sanctioned posts of Head Clerk and Junior Superintendent in the service of the Institute. w.p.c.16372/07 & cc. 3

The 2ndpetitioner was later promoted as Upper Division Clerk in January 2000. Although the 2ndpetitioner requested for promotion as Head Clerk and Junior Superintendent, as in the case of Sri.Sreekanatan Nair, she was not given such promotion. By Ext. R2(e) order dated 1-3-2007, the said Sri.Sreekantan Nair was given a further promotion as Cashier. According to the petitioner, this was done when he was facing disciplinary action for very serious charges as evident from Ext. P16 representation of the 1st petitioner and against the said proceedings the said Sri. Sreekantan Nair had approached this Court and obtained an order of stay. It appears that the said Sri. Sreekantan Nair was working as Junior Superintendent, which would show that although the said Sri. Sreekantan Nair, was junior to the 2nd petitioner, he was given two promotions as Head Clerk and Junior Superintendent,while the petitioner remained as a U.D. Clerk. Even Ext. P1(a) request of the 2ndpetitioner for promotion as Head Clerk in the vacancy of promotion of Sri. Sreekantan Nair as Junior Superintendent was also not considered.

3. Thereafter the 2nd petitioner filed Ext. P2 representation seeking promotion to the post of Cashier in the vacancy which would arise on the retirement of Sri. Sreekantan Nair. In the same, she stated that she understands that the posts of Head Clerk and junior Superintendent have not been sanctioned for the Institute. This fact w.p.c.16372/07 & cc. 4

was also noticed by the Government in Ext P3 communication dated 30-3-2007 to the Institute, in which, it was stated that in such posts the present incumbents are permitted to continue as supernumerary till they retire. The 1st petitioner also by Ext P5 representation brought this fact to the attention of the Director of the Institute. By the same, the 1st petitioner also demanded that in the vacancy of cashier arising in the Institute, the 2nd petitioner be appointed and to desist from giving charge of posts in the Institute to employees of the Press. While so, the 4th respondent who was working in the Press, was given charge of the post of Cashier in the vacancy which arose on 31-5-2007, on the retirement of Sri. Sreekantan Nair. It is against the said action of respondents 2 and 3, the petitioner had filed W.P. (C) No. 16372 of 2007. While the same was pending, Ext. P10 order was issued by the Director, fixing scale of pay in the post of Cashier for the 4th respondent, wherein it is stated that the 4th respondent was appointed as Cashier in the Institute by Order No. E1/1905/07/SIL dated 17-9- 2007. Under the above circumstances the petitioner got the writ petition amended to include a challenge against Ext. P10 and Order No. E1/1905/07/SIL dated 17-9-2007 referred to therein also. As per the amended writ petition the petitioner seeks the following reliefs: "(a) issue a writ of Mandamus or other writ or order or direction directing the respondents 1 to 3 to promote the 2nd petitioner as Head Clerk/Junior Superintendent/Cashier having regard to her long service and qualifications.

w.p.c.16372/07 & cc. 5

(b) issue a writ of Certiorari or other writ or order quashing the order granting charge of the post of ashier (sic) to the 4th respondent;

(c) issue a writ of mandamus or other writ or order or direction directing the respondents 1 to 3 to give charge of the post of cashier to the petitioner who is fully qualified for promotion as cashier under the Special Rules w.e.f. 31.5.07;

(d) issue a writ of prohibition or other writ or direction for restraining the 4th respondent from continue the charge of Cashier from 31.5.207 (sic) when Sri. Sreekantan Nair retires. (e) issue such other writ or direction which this Hon'ble Court may deem fit and proper on the facts and circumstances of this case; (f) issue a writ of certiorari or other writ or order quashing Ext. P10 and Order No. E/1/1905/07/SIL Office Order dated 17.9.2007 referred to therein and the notice Ext. P9 dated 4.6.07 filed along with the reply affidavit dated 8.6.07 are void ab-initio."

4. The petitioner alleges mala fides on the part of the former Director and the present Director, which, according to her, is the reason for not giving the petitioner her due promotion, whenever vacancies arose. The petitioner points out that although services of both were regularised with effect from 11-1-1996, Sri. Sreekantan Nair joined after the petitioner joined the Institute, that too as the junior-most among the L.D. Clerks then in service and there was absolutely no reason for favouring Sri. Sreekantan Nair with promotion ahead of the petitioner. Services in the Press and the Institute were governed by separate sets of rules and there was no provision for making appointments by transfer from the Press to the Institute and vice versa. The service in the Press is also not considered for service benefits in the Institute. There are no posts of Head Clerk and Junior w.p.c.16372/07 & cc. 6

Superintendent in the Institute, despite which promotions were given to Sri. Sreekantan Nair, even though he was subjected to disciplinary action while working in the Press, which benefit of promotions was denied to the petitioner, even after retirement of the said Sri. Sreekantan Nair. On the retirement of Sri.Sreekantan Nair, as per the service rules applicable, an employee in the subordinate service of the Institute like the petitioner should have been appointed as cashier, whereas the 4th respondent, who was not even borne in the service of the Institute has been appointed as cashier, that too despite the fact that the 4th respondent did not possess the qualifications prescribed by the Rules, is the contention of the petitioner in the first writ petition.

5. A counter affidavit dated 1-6-2007, supplemented by another one dated 6-10-2007 and an affidavit dated 25-2-2008 have been filed by the respondents 2 and 3 in the writ petition. In the 1st one, they admit that the Government, on finding that several posts were created by the Institute, without prior sanction, by Ext. P3, allowed those posts to be continued on supernumerary basis, till retirement of the incumbents. The posts of Head Clerk and Junior Superintendents were such posts and therefore the petitioner could not be promoted to those posts as in the case of Sri. Sreekantan Nair. They would contend that the post of Cashier is a selection post to be filled up by transfer from Upper Division Clerks in the Kerala State w.p.c.16372/07 & cc. 7

Institute of Languages Subordinate Service or in the absence of eligible candidates, by deputation from Government Service. Therefore, the 2nd petitioner cannot claim promotion to that post also is their contention. They would further contend that even though the petitioner is not entitled to promotion, she is entitled to time bound higher grades. They justify giving charge of the post of Cashier to the 4th respondent on the ground that he is a Head Clerk governed by the Special Rules of the Kerala State Institute of Languages Subordinate Service, which is above the post of U.D. Clerk and they are entitled to give charge of the post of Cashier to a person in whom they have confidence. According to them since the petitioner suffers from disability of 40% and has been subjected to disciplinary action on several occasions, they felt that it is not in the best interest of the Institute to give charge of the post to the petitioner when the vacancy arose on 31-5-2007. They also dispute the claim of the petitioner regarding her physical disability.

6. As already stated, after filing of the 1st counter affidavit, the petitioner amended the writ petition taking the contention that the Institute and the Press are separate entities and therefore an employee from the Press cannot be transferred or appointed in the Institute. A counter affidavit dated 6-10-2007 was filed to the amended writ petition by respondents 2 and 3 stating thus in paragraph 5:

w.p.c.16372/07 & cc. 8

"5. It is submitted that the State Institute of Languages is the main establishment and the administrative wing. The `Vijnana Mudranam Press' is one of the Units of the Institute. The `Vijnana Mudranam Press' is the Production Unit. The establishment of the press is covered under the provisions of the Factories Act and the Employees' State Insurance Act. On the other hand, the State Institute of Languages is the administration wing. The Director is in over all charge of both the establishments. The Director of the State Institute of Languages is the drawing and disbursing authority in respect of the State Institute of Languages and the `Vijnana Mudranam Press'. The `Vijnana Mudranam Press' is not having any administrative establishment of its own except the State Institute of Languages. The Government grants are allowed to the Director and the Director is the executive head of both the establishments. Therefore, there is no meaning in the contention that the `Vijnana Mudranam Press' and the State Institute of Languages are entirely different, distinct and separate legal entities and therefore transfer of employees from the `Vijnana Mudranam Press' to the State Institute of Languages is impermissible. The maintenance of separate gradation lists for the two establishments is for convenience. It will not make the transfer of member of the service from one unit to another. All the employees are governed by the Special Rules for the State Institute of Languages."

7. The petitioner filed a reply affidavit to the same contending that the Press has separate service rules namely, the Vijnana Mudranam Press Special Rules, quoting the following provisions from the same:

"V.M.P Special Rule.

Part-I 1. Organizational Set-up of the VMP.

xxx xxx xxx

The service conditions of the staff of the printing press are different from these of the State Institute of Languages and have no bearing on the work of the Institute.

Chapter IV - Office Procedure in the VMP and its Relations with the SIL.

The working of the Vijnana Mudranam Press is independent of the State Institute of Languages. The staff of the Press do not form part of the staff of the SIL. The Press employee will have the status of Factory workers. The conditions of services of the employees of the Press have been prescribed in conformity with the Factories Act and Rules. xxx xxx xxx"

w.p.c.16372/07 & cc. 9

8. This Court passed the following order on 5-2-2008: "One of the issues, which arise for consideration in this writ petition, is whether the petitioner and the 4th respondent are qualified for being appointed as a Cashier by transfer.

2. Incidentally, after hearing counsel on both sides, it was also felt that further information is necessary as to whether the Special Rules framed for the State Institute of Languages in 1982 and which it stated to have been approved by the Governing body of the State Institute of Languages in its meeting held on 25.11.1982 has been approved by the Government. The further question as to whether the enforcement of the said Special Rules require the formal approval of the Governor is a matter that has to be considered.

3. Though two counter affidavits have been by the second respondent, there is no specific averment dealing with the petitioner's assertion that the petitioner is qualified in terms of the Special Rules of the Kerala State Institute of Languages, but the 4th respondent is not. In my view, these are aspects which require further elucidation by respondents 2 and 3.

I, therefore, direct respondents 2 and 3 to file additional affidavits indicating the above aspects. The additional aspect which has been mooted for consideration by the petitioner is whether Sri.Sreekantan Nair who was senior to the petitioner in the post of Lower Division Clerk in the State Institute of Languages as evidenced by Ext.R2(b). The affidavit shall also indicate the circumstances under which Sri.Sreekantan Nair, who was employed in Vijnanamudranam Press, was considered to be qualified and eligible to be appointed as Cashier by transfer in terms of the Rules of the State Institute of Languages."

9. Pursuant to that order an additional affidavit was filed by the 3rd respondent, wherein it was stated thus in paragraphs 2 to 7: "2. The 2nd respondent is an autonomous body constituted by the State Government having a Governing Body with the Chief Minister as the Chairman, the Minister for Cultural Affairs as the Vice Chairman; the Secretary to the Government, Department of Cultural Affairs; the Secretary to Government, Finance Department and 25 Others with the Director as the members. The Establishments of the State Institute of Languages, Kerala are the State Institute of Languages and the Vijnana Mudranam Press. The Kerala State Institute of Languages have framed the General and Subordinate Service Rules, Services Disciplinary Rules and Employees Conduct Rules, 1984 which got the approval of the Government Vide G.O. (MS) No. 170/84/H.Edn. Dated 10.7.1984. The true copy of the Government Order Dated 10.7.1984 is produced herewith and marked as Exhibit R2 (d). The Government Order is upon the orders of the w.p.c.16372/07 & cc. 10

Governor and no further approval of the Governor or the Government is necessary for the enforcement of the Special Rules. There is no Special Rules for the Vignana Mudranam Press. The Special Rules is applicable to both the Institute of Languages and the Vignana Mudranam Press of the Kerala State Language Institute.

3. The claim of the 2nd petitioner that she is the only person fully qualified and eligible for promotion as Cashier as per the Special Rules is not correct. The petitioners have quoted in paragraph 9 of the Writ Petition, the extract from the Special Rules as to the Method of Appointment of Cashier. But the qualification is not stated. The qualifications for Recruitment by transfer to the post of Cashier prescribed under Rule 6 (b) (2) are:

(i) Account Test (Higher)

(ii) Manual of Office Procedure and

(iii) Not less than 15 years service in the Institute; out of which 5 years shall be in the feeder category.

It is submitted that the 2nd petitioner is not having the test qualification of Account Test (Higher). Therefore, the 2nd petitioner is not qualified for being considered for promotion to the post of Cashier. As per the records of the Institute, the petitioners have never submitted either the original or the copies of Exts. P1 (a), P2 or P5.

4. The appointment of Sri. S. Sreekantan Nair covered under Ext. R2 (b) order as Cashier was on 1.3.2007, while he was working as Junior Superintendent. The post of Senior Superintendent and that of Cashier are in the same cadre and scale of pay of Rs. 6500-10550 (Pre revised). The true copy of the Order No. E1/922/86/SIL Dated 1.3.2007 is produced herewith and marked as Exhibit R2 (e). At the material time Sri. S. Sreekantan Nair was having the requisite qualification and experience for being appointed to the post of Cashier. It is submitted that subsequent to the above order, the Government was pleased to issue Exhibit P3 order implementing austerity measures in the autonomous institutions under the Administrative jurisdiction of the Department of Cultural Affairs. The Appendix forming part of Exhibit P3, is produced herewith and marked as Exhibit R2 (f). After Exhibit P3, the 2nd respondent cannot create the posts of Senior Superintendent, Junior Superintendent or Head Clerk either at the State Institute of Languages or at the Vignana Mudranam Press. The 2nd petitioner has earlier moved this Hon'ble Court by filing Writ petition (Civil) No. 2567 of 2007, claiming promotion to the post of Junior Superintendent. However, in view of Ext. P3, she was compelled to withdraw the Writ Petition.

5. It is submitted that as stated in paragraph 6 of the Counter Affidavit Dated 6.10.2007, the second petitioner while working as Upper Division Binder at the Vignana Mundranam Press was given transfer appointment as Lower Division Clerk at the Institute, by creating a supernumerary post on compassionate grounds as under w.p.c.16372/07 & cc. 11

Exhibit R2 (a). Sri. S. Sreekantan Nair was also given appointment by transfer as Lower Division Clerk by Exhibit R2 (b) order. The transfer appointments were with effect from 11.1.1996. Since the appointment of Sri. Sreekantan Nair was to a regular post in the Institute and that he was senior in age to the second petitioner, he was given seniority in the cadre of Lower Division Clerk in the service of the Institute. This is reflected in Exhibit P1 seniority list. The petitioners have never objected to the seniority assigned to Sri. S. Sreekantan Nair.

6. Sri. S. Sreekantan Nair was given promotion to the cadre of Upper Division Clerk with effect from 5.7.1997. The true copy of the Order No.E1/2027/92/SIL Dated 10.9.1998 is produced and marked as Exhibit R2 (g). He was given further promotion to the cadre of Head Clerk on 31.3.2003 as per order No.E1/4729/1990/SIL Dated 31.3.2003 of the 3rd respondent, a true copy of which is produced herewith and marked as Exhibit R2 (h). Sri. S. Sreekantan Nair was given further promotion as Junior Superintendent with effect from 14.6.2004 vide order No. E1/807/2004/SIL Dated 30.6.2004 of the 3rd respondent, copy of which is produced and marked as Exhibit R2 (i). It was while working as Junior Superintendent, Sri. Sreekantan Nair was given promotion to the cadre of Cashier, which is in the same scale of pay of Senior Superintendent.

7. It is submitted that the 4th respondent was holding the supernumerary post of Head Clerk at the Vignana Mudranam Press. The post of Head Clerk is above the post of Upper Division Clerk held by the 2nd petitioner. He has the qualifying service in the feeder categories of Cashier and possess the Test qualifications. The employees of the Vignana Mudranam Press is also covered by the Special Rules of the Institute. The 4th respondent is a member of the Kerala State Institute of Languages Subordinate Service and therefore, comes within the zone of consideration for appointment by transfer to the post of Cashier. It was in the above fact situation, the Standing Committee of the Institute held on 20.8.2007 under the Presidentship of the Hon'ble Minister for Education and Cultural Affairs decided as under Exhibit P11 to appoint the 4th respondent as Cashier in the existing vacancy at the Institute of Languages by giving him promotion. There was no other eligible and qualified candidates in the feeder categories for being considered for promotion. Therefore, no Departmental Selection Committee was held for the selection for appointment to the post of Cashier. It was following the above decision, this deponent has issued Exhibit P10 order."

10. The petitioner has filed a reply affidavit dated 4-3-2008, in which, the petitioner contended thus in paragraphs 4 to 9. "4. The respondents have not stated as to whether Government approval is necessary or not for the implementation of VMP Special Rules drafted and approved by the Director on 1st January 1973 and accepted and applied by the respondents to the press employees from w.p.c.16372/07 & cc. 12

1982 after the decision of the governing body in the 39th meeting held on 25th November 1982. The relevant portion of the minutes with the consequent order is produced as Ext.P15. It is submitted that Ext.R2 (d) has nothing to do with the approval of the above Rules. It governs the service matters of the Institute and not the press VMP Special Rules are applicable to employees in the press.

5. It is absolutely incorrect and wrong to say that Special Rules of 1984 is applicable to both the Institute of Language and Vijnana Mudranam Press. If that is so why Ext.P15 was passed and applied to the employees in the press from 1982 onwards. In fact that respondents are suppressing correct details. They are following the VMP Special Rules in all service matters of the employees in the Press from 1982 onwards.

6. The respondents also did not say any valid or acceptable reason for preferring Sri.Sreekandan Nair and appointing him in a regular post in the service of Institute subsequent to my appointment in 1995 when a regular vacancy arose in 1996 overlooking my legitimate claim. In fact Sri.Sreekandan Nair's transfer to the Press was really a punishment transfer when he was continuing there on the strength of a stay order obtained from this Hon'ble Court. It is clear from a petition filed by the Association in 1998, copy of which is produced as Ext.P16. Moreover Sri.Sreekandan Nair was junior to me in the category of L.D.Clerk and it is clear from Ext.R2(b).

7. At the same time the respondents were consistently denying all service benefits including promotion to me inspite of Government's instruction. Copy of the letter issued by the Government in this behalf is produced as Ext.P17. They have not stated the reason for denying exemption to me when it was granted to Sri.Sreekantan Nair on account of completion of 25 years of service and attainment of 50 years of age as per the Special rules governing the Institute.

8. The respondent also did not clarify as to why the 4th respondent who is ineligible and unqualified to be appointed as Cashier particularly when he is working in a supernumerary post not sanctioned by the government was selected and appointed as Cashier in the Institute. Till now nobody from Press was given the post of Cashier of the Institute. His present appointment as Cashier is malafide and intended to deny me promotion as Cashier.

9. It is submitted that no selection was conducted before posting the 4th respondent as Cashier. There are others working as Upper Division Clerk in the Institute who can be considered for appointment as Cashier. But no notice was issued to them. A Cashier post in the Institute can only be filled from among the employees working in the Institute and not in the VMP. So the appointment of the 4th respondent as Cashier is void ab-initio and liable to be quashed."

11. In W.P.(C) No.29585/2010, the petitioner is challenging w.p.c.16372/07 & cc. 13

the orders directing recovery of special conveyance allowance paid to the petitioner as applicable to a physically handicapped employee, on the ground that such allowance is payable to only employees whose disability is 40% or more and the petitioner availed of the said benefit on the basis of a false medical certificate in so far as in a medical examination by the Medical Board as per direction of this court in W.P. (C) No. 36660/2009, it was found that the petitioner suffers disability of only 20%. According to the petitioner, her physical disability was certified by two Medical Boards of the Medical College Thiruvananthapuram, by Exts. R2(a) and P6 medical certificates dated 22-11-1993 and 12-5-2004 to be 50% and more than 40% respectively and the conveyance allowance granted on that basis cannot be now ordered to be refunded in so far as the petitioner has not suppressed any facts and is not party to any misdeed.

12. In their counter affidavit, the respondents 2 and 3 in W.P. (C) No. 29585/2010, who are the respondents 2 and 3 in the other writ petition also, would contend that on the basis of Ext. R2(c) medical certificate issued by the State Standing Disability Assessment Board certifying disability of the petitioner as only 10%, the Government directed stoppage of conveyance allowance to the petitioner and pursuant to orders of this court in W.P. (C) No. 36660/2009 filed by the petitioner herself, the State Standing w.p.c.16372/07 & cc. 14

Disability Assessment Board again assessed the disability of the petitioner as 20% by Ext. P8 certificate dated 25-2-2010, which would show that the petitioner's claim was false and therefore they are perfectly justified in ordering recovery of the benefits granted to the petitioner as a person with disability.

13. The petitioner has filed a reply affidavit stating that the former Director had misbehaved towards the petitioner, in respect of which the petitioner had filed complaints before the Women's Commission, Superintendent of Police and the District Collector, ill feelings of the then Director as result of which, is the reason for the action taken against the petitioner for recovery of the benefits legally granted to the petitioner as a person with disability.

14. Although the alleged motive for the action of respondents 2 and 3 in both writ petitions is the same and some of the facts overlap, since the prayers are separate and independent, I am considering these two writ petitions separately.

W.P. (C) No. 16372 of 2007

15. Apart from the sustainability of the contentions of the parties, the facts revealed shows that the State Institute of Languages is being administered in a totally disorderly manner, without any respect for the statutory rules which govern the service matters of the Institute. It is appalling to note that the Director of the Institute is w.p.c.16372/07 & cc. 15

either not aware of the service rules applicable to the two different units under him or is feigning ignorance about the same, both of which would show him in very bad light. Even when the correct rules were brought to the notice of the Director by the petitioner in her reply affidavit, without any regard for truth, the Director had the audacity of filing a false affidavit denying the same, which goes to show the extent to which the Director is prepared to go, simply for winning a case, which does not have any consequences to the Institute as such. Such an attitude shows that the Director is unable to view service matters of the employees of the Institute dispassionately in accordance with the rules and is prone to succumb to his ego even to the extent of disregarding statutory rules and filing false affidavits before this court contrary to the statutory rules. I further find that the Director had not even gone through the admitted service rules, in his anxiety to somehow or other deny the claim of the petitioner, and support the 4th respondent, without noticing that the petitioner could have been validly denied the relief claimed by her, legally, based on the rules themselves, at least till 11-1-2011. It is revealed that the Institute has created posts illegally without sanction and filled up the same against which the Government had to intervene by stopping further appointments to those posts. To top it all, the Institute has granted the employees of the Institute exemption from test qualification even w.p.c.16372/07 & cc. 16

against the service rules applicable, that too without prior permission from the Government. I am of opinion that such conduct of a Chief Executive and the Governing Body of a Government Organization is not good for the well-being of the Institution.

16. The first question to be decided is as to what are the rules applicable to the appointment in question. The existence of the Kerala State Institute of Languages General and Subordinate Service Rules, 1984 is the common case of both sides. The said rules do not refer to the Press at all. The same also do not refer to the qualifications and methods of appointment to various posts admittedly in existence in the Press, such as Head Clerk, Junior Superintendent, Printer, Compositor, Proof Reader, Store Keeper, Foreman, Assistant Foreman, Binder etc., although the posts of artist and proof reader are included for Kerala State Institute of Languages General and Subordinate Service. As such the contention of the 3rd respondent that the said rules cover the Press also is vain and against the facts, which cannot be disputed by the respondents 2 and 3. The petitioner, in her reply affidavit, quoted the relevant extract from the Vijnana Mudranam Press Rules (VMP Rules for short). She has also made available for perusal of the Court, a copy of the said rules which is captioned "Vijnana Mudranam Press Draft Rules". The 3rd respondent has not, after the filing of the reply affidavit or at the time of arguments w.p.c.16372/07 & cc. 17

chosen to deny the existence of the same. A faint suggestion is made during arguments that those rules have not been approved by the Government. But no answer is forthcoming to the question as to what are the rules followed for the service in the Press, since the Kerala State Institute of Languages General and Subordinate Service Rules, 1984, do not contain any rules covering the posts in the Press. The petitioner has produced the extract of item no. 7 of the minutes of the 39th meeting of the Governing body of the State Institute of Languages held on 25th November 1982, as Ext. P15, which reads thus: "Item No.7. Vijnana Mudranam Press - Rules - Finalisation of. The amendments to the Vijnana Mudranam Press Rules as recommended by the Sub-Committee appointed for drawing up the amendments were passed. The Rules will come into force with effect from the date of decision of the Governing Body.

It was further decided to create two new posts of Assistant Foreman in the Composing and Binding Sections respectively so that in future there will be two composing units as well as two binding units - each unit under the supervision of an Assistant Foreman. The new posts of Assistant Foreman will be filled up as per the provisions in the amendments to the Rules mentioned above. It was further decided that any anomaly or grievances that will arise out of the implementation of the new amendments will be reported to the Special Secretary to Government, Higher Education Department for scrutiny and disposal."

Further, Order No. V.1.6875/79/C dated 17-1-1983, forming the latter part of Ext. P15, states as follows:

25-7-79-

.

16-8-79-

25-11-82-

25-11-82

.

w.p.c.16372/07 & cc. 18 25-11-

82 . 25-11-82- 7

."

Therefore, the fact that separate service rules have been framed by the Institute and the Press regulating the services in the two units, which are being followed for appointments, promotions etc. cannot be disputed by the 3rd respondent, whether the same have been approved by the government or not. In any event it is settled law that when the field is not covered by any approved rules, draft rules can be followed. In fact they are being followed for the last more than 30 years, as is evident from the above referred documents. In the introductory part of the said Rules it is stated thus:

"...... The Vijnana Mudranam Press run under the auspices of the State Institute of Languages is intended for printing of the books and is an institution registered under the Factories Act and rules thereunder."

This is reiterated in clause 1 of Part I of the rules followed by the following sentence:

"...... The service conditions of the staff of the printing press are different from those of the State Institute of Languages and have no bearing on the work of the Institute."

This is made further abundantly clear in Chapter IV of the rules thus: "The working of the Vijnana Mudranam Press is independent of the State Institute of Languages. The staff of the Press do not form part of the staff of the SIL. The Press employees will have the status of factory workers. ........."

17. Other documents on record further prove the same. w.p.c.16372/07 & cc. 19 Admittedly separate seniority lists are mentioned for employees of the Press and SIL. The 2ndpetitioner joined the Press as an L.D.Clerk and was later appointed as Store Keeper there. In both the Press and the Institute, there are posts of L.D.Clerks and U.D.Clerks. When she requested for a posting in the SIL on account of her physical disability, she was not transferred to the SIL, but was given a fresh appointment as a L.D. Clerk in SIL as is clear from Ext. R2(a) order produced by the 3rd respondent. In the same there is specific condition as follows: "The services of Smt. Daisy Jacob in the Vijnana Mudrananm Press will not be reckoned for any service benefits and her present pay and allowances will be protected."

Further, in Exhibit P19 extract from the minutes of the meetings of the Governing Body held on 24-11-2009, it can be seen that it was decided to consider the service of the 2nd petitioner in the Press for the period from 19-10-1974 to 28-9-1995, for the purpose of grade and pension. Likewise, Sri.Sreekantan Nair was also an L.D. Clerk in the Press. He was also given a fresh appointment as L.D. Clerk in the SIL, by Ext. R2(b)order produced by the 3rd respondent, wherein also it is specifically stated thus:

"......... He will be the junior most in the category of LDC in the SIL. The services of Sri.Sreekantan Nair in the VMP will not be reckoned for any service benefits. Present pay of Sri. Sreekantan Nair will be protected."

Further, in the Press there are posts of Head Clerk and Junior Superintendent. But, by Ext.P3, the Government found fault with the w.p.c.16372/07 & cc. 20

Institute for making appointments to the posts of Head Clerk and Junior Superintendent, which would also show that the Government also treated the two units as separate. Therefore, the fact that the two services were distinct and separate is loud and clear and the same could not have escaped the attention of the 3rd respondent, since he himself has produced and referred to those documents in his affidavit. Strangely in the very same affidavit, he had the audacity to contend that all the employees of the Press and SIL form a common service and they are governed by the Special Rules for the State Institute of Languages. Perhaps he deliberately took the stand knowing well that otherwise he cannot defend the appointment of the 4th respondent. Either way the 3rd respondent has done what he ought not to have done as the Chief Executive Officer of a Government Organisation, namely, knowingly filing a wrong affidavit before a court of law, suppressing material facts relating to service rules and repeatedly trying to mislead this court in respect of the same.

18. Having referred to Exts. R2(a) and R2(b), I shall refer to an aspect of the case which has some relevance to the allegations of mala fides raised by the 2nd petitioner with reference to those documents. The 2ndpetitioner was originally appointed as an L.D. Binder in the Vijnana Mudranam Press in the year 1974 and she was promoted there as U.D. Binder. Subsequently she lost her husband w.p.c.16372/07 & cc. 21

and she suffered physical disability in an accident. On her request, she was appointed as a L.D. Clerk in the SIL creating a supernumerary post on compassionate ground on 29-9-1995. The governing body, ratified the said action of the then Director in its meeting on 11-1- 1996. Although by that ratification the petitioner's appointment stands regularised with effect from 29.9.1995, the Director regularised her service only with effect from 11.1.1996. The appointment of Sri. Sreekantan Nair as L.D. Clerk was also with effect from 11-1-1996, with the specific condition that he will be the junior-most in the category of LDC in the SIL. That means he was junior to the 2nd petitioner also, since she was already working in SIL from 29-9-1995. But when the post of Head Clerk was irregularly created, the Director chose to promote Sri. Sreekantan Nair, overlooking the petitioner, which could not have been validly done. The justification given by the 3rd respondent in the additional affidavit dated 25-2-2008 is that Sri. Sreekantan Nair was appointed to a regular post in the Institute and since he was senior in age to the 2nd petitioner, he was given seniority in the cadre of L.D. Clerk. This is hardly convincing, since the 2nd petitioner joined the Institute on 29-9-1995 and she was also regularised in service on 11-1-1996, the same day Sri. Sreekantan Nair was regularised in the service of the Institute with the specific condition that he would be the junior-most among the L.D. Clerks. To w.p.c.16372/07 & cc. 22

the regular post created, the 2nd petitioner had a better claim to be adjusted, before appointing Sri. Sreekantan Nair in the service of the Institute. Of course, Sri.Sreekantan Nair has already retired from service and the 2nd petitioner is not challenging his seniority or promotion now. I have referred to the same only to highlight the unjust treatment meted out to the 2nd petitioner. The said action of the respondents 2 and 3 lends credence to the contention of the 2nd petitioner that she was in disfavour with the management and she was being harassed because of the same. The later action in bringing in the 4th respondent from the Press to give charge of the post of Cashier over the senior persons in the service of the Institute, including the petitioner and later regularly appointing him against the rules applicable,supports the said allegation further.

19. Now I shall consider the question as to why the appointment of the 4th respondent is against the rules, as I have stated above. Admittedly the post of Cashier is borne on the Administrative Branch of the Kerala State Institute of Languages General Service. The method of recruitment for the post of Cashier under the Kerala State Institute of Languages General and Subordinate Service Rules, 1984, is as follows:

w.p.c.16372/07 & cc. 23

"Cashier (i) Recruitment by transfer from Upper Division Clerks in the Kerala State Institute

of Languages, Subordinate Service-

or

(ii) In the absence of eligible candidates under

(i) above, by deputation from Government

services."

The qualifications prescribed for the post are as follows: "Cashier Recruitment (i) Account Test (Higher) by transfer

(ii) Manual of Office Procedure,

and

(iii) Not less than 15 years' service in

the Institute out of which 5 years

shall be in the feeder category."

Admittedly, before being put in charge of the post of Cashier in the Institute, the 4th respondent was not in the Kerala State Institute of Languages Subordinate Service at any time. He was all along in the Vijnana Mudranam Press Service. As per Rules, the two are distinct and separate services. Therefore he was not in the feeder category for appointment by transfer to the post of Cashier borne on the State Institute of Languages General Service. Therefore he did not have 15 years' service in the Institute and 5 years' service in the feeder category. Contrary to the above facts, the respondents 2 and 3 have, in the additional affidavit dated 25-2-2008, sought to justify the appointment of the 4th respondent thus:

w.p.c.16372/07 & cc. 24

7. It is submitted that the 4th respondent was holding the supernumerary post of Head Clerk at the Vignana Mudranam Press. The post of Head Clerk is above the post of Upper Division Clerk held by the 2nd petitioner. He has the qualifying service in the feeder categories of Cashier and possess the Test qualifications. The employees of the Vignana Mudranam Press is also covered by the Special Rules of the Institute. The 4th respondent is a member of the Kerala State Institute of Languages Subordinate Service and therefore, comes within the zone of consideration for appointment by transfer to the post of Cashier. It was in the above fact situation, the Standing Committee of the Institute held on 20.8.2007 under the Presidentship of the Hon'ble Minister for Education and Cultural Affairs decided as under Exhibit P11 to appoint the 4th respondent as Cashier in the existing vacancy at the Institute of Languages by giving him promotion. There was no other eligible and qualified candidates in the feeder categories for being considered for promotion. Therefore, no Departmental Selection Committee was held for the selection for appointment to the post of Cashier. It was following the above decision, this deponent has issued Exhibit P10 order." That shows that the respondents have no case that he was appointed by deputation also. Therefore no further discussion is necessary to conclude that the appointment of the 4th respondent as Cashier in the State Institute of Languages General Service is clearly against the Kerala State Institute of Languages General and Subordinate Service Rules, 1984 and therefore liable to be interfered with.

20. The counsel for the 4th respondent would contend that Upper Division Clerks in the Kerala State Institute of Languages will include upper Division Clerks in the Press also, since what is required is 15 years' service in the Institute, which expression includes the Press also. Even if his contention on the 15 years' service can be accepted, while taking that contention the counsel lost sight of the fact that the feeder category is Upper Division Clerks in the Kerala State Institute of Languages Subordinate Service and not in the Kerala State Institute w.p.c.16372/07 & cc. 25

of Languages and the minimum 5 years' service prescribed is in the feeder category. The 4th respondent never belonged to the Kerala State Institute of Languages Subordinate Service at any time and therefore he never had 5 years' service in the feeder category of Upper Division Clerk in the Kerala State Institute of Languages Subordinate Service.

21. The next question to be decided is whether the 2nd petitioner is entitled to be considered for appointment to the post of Cashier in the vacancy which arose on retirement of Sri.Sreekantan Nair. She joined the Press in 1974, but was appointed in the Institute only on 29-9-1995, which was approved by the Governing body on 11- 1-1996 and she was promoted as U.D. Clerk in January 2000.In this connection it is interesting to note that although it was open to the respondents 2 and 3 to contend that the 2nd petitioner would complete the prescribed 15 years' qualifying service in the Institute only on 11- 1-2001, the contention taken in the additional affidavit dated 25-2- 2008 is that she does not have the prescribed qualification of Account Test (Higher), which means that they have no contention that the petitioner does not have the prescribed service qualification. The answer of the 2nd petitioner to the same is that she has completed 50 years of age and therefore by virtue of Ext. P18 decision of the Governing Body, in the meeting held on 8-10-2003, she is exempted w.p.c.16372/07 & cc. 26

from acquiring that qualification. That is why I said earlier that in his anxiety to somehow or other controvert the claim of the petitioner, the 3rd respondent missed the obvious and valid contention available to him in law, which shows his frame of mind vis-`-vis the 2nd petitioner. But incidentally there arises another question as to whether the Governing Body could validly give such exemption. Exemption from test qualification is provided for in Clause 17 of Part I of the Kerala State Institute of Languages General and Subordinate Service Rules, 1984, which reads thus:

"17. Permanent exemption

Notwithstanding anything contained in these rules or in the special rules, persons in the service of the Institute who attain the age of 50 years and who have put in 25 years of service shall be eligible for permanent exemption from passing the obligatory departmental tests for all purposes such as promotion, appointment as full member of a service etc.

Provided that persons belonging to Scheduled Castes and Scheduled Tribes shall be eligible for the permanent exemption when they attain the age of 50 years."

As per the same, the eligibility for exemption is only to those employees who have attained the age of 50 years and put in 25 years of service. But in Ext. P18, employees who have not put in 25 years' service have also been exempted from test qualification on their attaining 50 years of age. But I am not inclined go into that question now, since nobody has raised that contention before me and Ext. P18 resolution of the Governing Body is not under challenge before me by w.p.c.16372/07 & cc. 27

anybody. But I see the said action of the Governing Body as a further instance of maladministration of the affairs of the Institute by those in the helm of affairs of the Institute. Further taking into account the service in the Press also, the 2ndpetitioner has more than 35 years of service and Clause 17 speaks of only 25 years' service and does not qualify the word `service' with the words `in the Institute' as in the case of qualifications prescribed for the post of Cashier. If Ext. P18 is also taken into account,the 2nd petitioner would be entitled to be considered for promotion from 11-1-2011, since she has acquired all other qualifications as on that date, whereas the 4th respondent is not qualified at all, for the reasons stated above.

22. The respondents 2 and 3 would take a contention that the 2nd petitioner cannot claim promotion as Cashier as of right on the ground that she is the senior-most in the cadre of Upper Division Clerk because as per special rules the post is a selection post. As is clear from the rule extracted above, the rules do not state that the same is a selection post. The method of appointment is "recruitment by transfer from among Upper Division Clerks in the Kerala State Institute of Languages Subordinate Service". They next raise a contention that the fact that the petitioner herself claims that she is having 40% disability is a disqualification for being a cashier. But such a contention is violative of Section 47(2) of the Persons with Disabilities (Equal w.p.c.16372/07 & cc. 28

Opportunities, Protection of Rights and Full Participation) Act, 1995, which reads thus:

"47. Non-discrimination in Government employment.- (1) ....

(2) No promotion shall be denied to a person merely on the ground of his disability:

Provided that the appropriate Government may, having regard to the type of work carried on in any establishment, by notification and subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section."

23. There is another vague contention raised by respondents 2 and 3 that the petitioner has been subjected to disciplinary action on various occasions. But no materials have been produced to substantiate that contention. The 2ndpetitioner has been subjected to injustice for long, by respondents 2 and 3 for no fault of hers. She was the President of the 1st petitioner Association of employees of the Institute. Perhaps that also may have been a reason for the hostile attitude of the respondents 2 and 3 towards her. She is due to retire on 31-3-2011. Therefore it is in the fitness of things that, at least now, the respondents 2 and 3 should atone for the unjust treatment meted out to the 2nd petitioner through out her career in the Institute. Taking into account all these facts, I hold that the 2ndpetitioner is qualified and entitled to be appointed as Cashier in the Institute with effect from 11- 1-2011.

w.p.c.16372/07 & cc. 29

24. In the result, W.P. (C) No. 16372 of 2007 is allowed, Ext. P10 and order No. E1/1905/07/C dated 17-9-2007referred to therein, by which the 4th respondent was appointed as Cashier in the Kerala State Language Institute is hereby quashed. However any excess amount paid to the 4th respondent by way of salary pursuant to his appointment as Cashier shall not be recovered from him and he shall be repatriated to his original post in the Vijnana Mudranam Press. His service as Cashier in the Kerala State Language Institute shall be treated as service in the Press in his original post and in the promotion post, if he had become eligible for such promotion. He shall also be given promotion, if any, in the service of the Press, which may have accrued to him but for his appointment as Cashier in the Kerala State Institute of Languages. The respondents 2 and 3 are directed to appoint the 2nd petitioner as Cashier in the Institute with effect from 11-1-2011. She will be entitled to all monetary benefits arising from such retrospective promotion. Orders in this regard shall be passed by the 3rd respondent within two weeks from the date of receipt of a copy of this judgment.

W.P.(C) No. 29585/2010

25. In this case the only question is as to whether Exts. P1 and P1(a) orders, issued by the 3rd respondent withdrawing benefits granted to the petitioner as a person with disability, are sustainable. w.p.c.16372/07 & cc. 30

The fact that the petitioner suffers from physical disability is not in dispute. The dispute is only as to the percentage of disability. The petitioner would be eligible for the benefits, which is sought to be withdrawn, only if her disability is 40% or more. Strangely, four Medical Boards, comprised of doctors of Medical College, Thiruvananthapuram and the Health Department, have issued certificates certifying vastly differing percentages of disability. The first is Ext. R2(a) dated 22-11-1993, issued by the Medical Board of Medical College, Thiruvananthapuram, which certifies that the petitioner's disability is above 40%. Ext P6 is another disability certificate dated 12-5-2004, issued by another Medical Board of Medical College, Thiruvananthapuram, which certifies that the petitioner's disability is 50%. Nobody has a case that those two certificates are forged ones or that they are not issued by the authorities, which are stated to have issued the same. Then comes Ext.R2(c) certificate dated 25-5-2004, issued by the State Standing Disability Assessment Board, Thiruvananthapuram, consisting of the doctors of both the Health Services and the Medical College,Thiruvananthapuram, which certifies a percentage of disability of 10% only. Strangely, the very same Board, but this time not consisting of doctors from the Medical College, but only from Health Services, issued Ext. P8 certificate dated 25-2-2010, pursuant to the w.p.c.16372/07 & cc. 31

direction in Ext. P7 judgment of this Court in W.P.(C)No.36660/2009, certifying 20% disability. I am totally surprised that in the matter of assessing the percentage of disability of a person, which should be based on scientific principles, there can be such vastly varying opinions by different medical boards, forcing me to wonder whether there is any scientific basis for such assessment. It disturbs me to note that it is based on such medical opinions that admissions are either given or denied to candidates with disability seeking admission for professional courses every year, in the seats reserved for them and appointments are given or denied to persons with disabilities in the 3% vacancies reserved for them as mandated by the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. I also note that in W.P. (C) No. 16372 of 2007, the very same 3rd respondent, who issued Exts. P1 and P1 (a) orders holding that the petitioner's disability is only 20%, has sought to justify the refusal of appointment to the petitioner as Cashier inter alia on the ground that she is suffering from 40% disability. Therefore I am of the opinion that it would not be in the interest of justice to recover benefits already granted to the petitioner on the basis that she suffered from disability of 40% or more, retrospectively, relying on one of those four medical certificates, especially in the absence of any evidence of any complicity of the petitioner in obtaining the certificates in her favour. w.p.c.16372/07 & cc. 32

26. Accordingly, the impugned orders are quashed to the extent of ordering recovery of benefits already granted to her. But since the latest medical certificate certifying 20% disability was issued on the basis of the direction of this court in W.P. (C) No. 36660/2009, filed by the petitioner herself, I hold that the petitioner would not be entitled to any further claim for such benefits.

The above two writ petitions are disposed of as above. Before parting with these two cases I place on record my strong disapproval of the conduct of the 3rd respondent, which I have dealt with elaborately while dealing with W.P. (C) No. 16372/1007 and is unbecoming of a Chief Executive Officer at the helm of affairs of any Government Institution. I am dismayed that a Chief Executive Officer of a Government Institution is prepared to stoop to such levels to have his way and to justify his illegal action in flagrant violation of the rules without any respect for truth. I am of opinion that, by his conduct, he has rendered himself unfit to hold the post. The Government would, if they have any sincere and genuine concern for the well-being of the Institute, and respect for our national motto "Sathyameva Jayathe", do well to take appropriate action in that regard. I was also inclined to order exemplary costs to be paid by the 3rd respondent personally and to initiate prosecution proceedings against him for filing a false affidavit before this court, but exercising restraint I refrain from doing w.p.c.16372/07 & cc. 33

so. I leave the rest to the Government to act, if they have any real respect for truth and the welfare of the people of this State. Sd/-

sdk+ S.SIRI JAGAN, JUDGE ///True copy///

P.A. to Judge