KERALA BHASHA INSTITUTE EMPLOEES Vs. STATE OF KERALA

JUDGEMENT

(1.) 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 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. 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.) 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 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.