Service Law; Beena D. Vs. Radha Lekshmi Vilasam (RLV) College of Music and Fine Arts, Tripunithura [Kerala High Court, 07-07-2016]

Rule 39 of Part II KS & SSR – The delay on the part of the Government as well as the PSC has quite adversely affected the rights of the petitioner to be considered against the regular posts of Lecturer in ‘Bharathanatyam’ despite her acquisition of the qualifications and availability of the vacancies. The eagerness shown by the Government was only to non-suit her, merely with reference to the higher age factor, which does not appear to be correct and proper. Power is of course vested with the Government under Rule 39 of Part II KS & SSR, to do justice in appropriate cases.


IN THE HIGH COURT OF KERALA AT ERNAKULAM

P.R.RAMACHANDRA MENON & ANIL K.NARENDRAN, JJ.

W.P.(C)No.22964 OF 2011 & OP(KAT)No.226 OF 2015

DATED THIS THE 7th DAY OF JULY, 2016

PETITIONER

BEENA D.

BY SRI C.P.PRADEEP

RESPONDENTS

1. RADHA LEKSHMI VILASAM(RLV) COLLEGE OF MUSIC AND FINE ARTS, TRIPUNITHURA, ERNAKULAM DISTRICT PIN 682 317, REPRESENTED BY ITS PRINCIPAL.

2. HEAD OF DEPARTMENT OF BHARATHANATYAM, RADHA LEKSHMI VILASAM (RLV) COLLEGE OF MUSIC AND FINE ARTS, TRIPUNITHURA, ERNAKULAM DISTRICT PIN 682 317.

3. PRINCIPAL SECRETARY TO HIGHER EDUCATION DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM-695 001.

4. DEPARTMENT OF COLLEGIATE EDUCATION, GOVERNMENT OF KERALA,GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY.

5. DIRECTOR OF COLLEGIATE EDUCATION, GOVERNMENT OF KERALA, VIKAS BHAVAN, THIRUVANANTHAPURAM-695 001.

6. DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, ERNAKULAM PIN 682 018.

7. DIVISIONAL EMPLOYMENT OFFICER, REGIONAL PROFESSIONAL & EXECUTIVE EMPLOYMENT EXCHANGE, ERNAKULAM, COCHIN 682 018.

8. SHIBU,LECTURER (TEMPORARY), BHARATHANATYAM, RADHA LEKSHMI VILASAM (RLV) COLLEGE OF MUSIC AND FINE ARTS, TRIPUNITHURA, ERNAKULAM DISTRICT,PIN 682 317.

R3 – 7 BY GOVERNMENT PLEADER SRI P.P.PADMALAYAN

JUDGMENT

P.R. RAMACHANDRA MENON, J.

The petitioner is the applicant before the Tribunal. Claim is for getting appointment to the post of Lecturer in ‘Bharathanatyam’ in the RLV College of Music and Fine Arts, Tripunithura. Immediate grievance is against the stand of the Government in not extending the benefit of ‘age relaxation’ to the petitioner, despite the fact that for the past more than 4 decades, the regular vacancy was not being filled up and the same was being carried forward by accommodating Guest Lecturers like the petitioner. The delay was attributed to formulation/amendment of the Special Rules, which took nearly 10 years, ultimately notifying the same by 19.3.2008, by which time the petitioner had crossed the age limit, though was still working in the said Institution as a Guest Lecturer.

2. The petitioner is a Postgraduate Degree holder in ‘Bharathanatyam’ from the Mahatma Gandhi University, who came out in flying colours bagging a 1 st class, with 2 nd rank in the year 2002. In fact, she was selected and appointed as a Guest Lecturer on temporary basis from the academic year 1997-98 in the said Institution and was continuing as a Tutor till 2011. However, there occurred a break of two years, in 1999 and 2000, which was availed only for obtaining the ‘Masters Degree’ in ‘Bharathanatyam’. While she was working as above, her service was claimed to be regularised by filing a representation (copy of which has been produced as Ext.P5(a) dated 8.10.2001 along with I.A.No.10072/2015). There was a similar representation preferred by another Guest Lecturer by name ‘Vanajakumari’ as well. Both the representations were recommended by the Principal and forwarded to the Government for regularisation as per Ext.P5 dated 8.10.2001. But no action was taken and the petitioner was continuing as a Guest Lecturer.

3. While so, in the year 2011, the petitioner crossed the age of 40 years, by virtue of which, the Employment Exchange was not in a position to sponsor her name, any further, and accordingly, the petitioner was made to vacate the seat. This made the petitioner to approach this Court by filing W.P.(C) No.22964/11 with the following prayers.

(a) Issue a writ of mandamus or any other appropriate writ, order or direction to respondents 1 and 2 to appoint the petitioner as temporary Lecturer in Bharathanatyam in the 1 st respondent College.

(b) Declare that the 2 nd respondent has no right to continue as Head of Department of Bharathanatyam in the 1 st respondent College as he is only an accompanying artist having no nexus with teaching of Bharathanatyam (Lecturer).

(c) Declare that the dereliction of duty on the part of the 7 th respondent in not sponsoring the name of the petitioner for employment as Lecturer in Bharathanatyam in the 1 st respondent College shall not in any way prejudice the legal right for employment of the petitioner.

4. In the counter affidavit filed in the above case, in paragraph 3, it was stated that there were ‘four permanent posts’ of ‘Bharathanatyam’ in the College as on 24.11.2011. But no permanent candidate was working in the college due to the fact that the PSC had not advised candidates for regular appointment. It is also seen from the pleadings and proceedings that the permanent vacancies were not being filled up because of the proposed amendment to the Special Rules and the position continued for several decades. It was finally on 19.3.2008, that the Special Rules were formulated and thereafter, ‘three’ vacancies were reported to the PSC on 7.7.2008. Pursuant to the said requisition, the PSC notified the vacancies to be filled up from eligible candidates, where the maximum age limit was shown as ’36’ years. The petitioner filed Annexure A12 representation dated 6.12.2013 before the Government to grant age relaxation and to permit her to participate in the selection process. Since the representation was not considered, she approached the Kerala Administrative Tribunal by filing O.A.No.2911/2013, which was disposed of directing the Government to consider Annexure A12 representation.

5. Pursuant to the above verdict, the representation was considered and rejected as per Annexure A15, which was the subject matter of challenge in O.A.No.528/14. The Tribunal considered the matter and dismissed the O.A. as per Annexure A16 dated 12.8.2014, which was sought to be challenged by filing OP(KAT) No.308/2014. The facts and figures were examined by a Division Bench of this Court (to which one of us was a member), whereupon the order under challenge was set aside and the O.P. was allowed as per Ext.P1 judgment (which is the same as Annexure A17). The explanation offered from the part of the Government for not invoking the powers under Rule 39 of Part II KS & SSR with reference to some guidelines issued by the Government was substantiated as not being followed by the Government itself, by virtue of the benefit given to other individuals as borne by Annexure A13. The Bench held that Annexure A15 was issued without proper application of mind. It was accordingly, that the matter was directed to be reconsidered within the specified time.

6. Based on the above verdict, the matter was reconsidered by the Government. As per Ext.P2 order dated 28.2.2015, the Government tried to draw a distinction with the instances pointed out by the petitioner where benefits were given to individuals, while denying the same to the petitioner. Obviously, the different instances were specifically adverted to by the petitioner including regularisation of the service of Smt.Lalitha as per G.O. (MS)No.186/2000/H.Edn. dated 4.12.2000 and that of Dr.Mini P.Mathai as per G.O. (MS) No.320/2011/H.Edn. dated 26.2.2011, whereby their age was relaxed to be appointed as Lecturer in the regular vacancies. We have gone through the reasons stated by the Government, which appear to be too flimsy and not palatable to this Court. But, unfortunately, on challenging the same before the Tribunal by way of O.A.No.474/2015, the challenge came to be repelled and the O.A. was dismissed as per Ext.P3, which is taken up before this Court, by way of the present Original Petition.

7. Considering the nature of grievance projected with reference to the common cause of action, both the matters W.P. (C)No.22964/2011 and OP(KAT) No.226/2015 are taken up together and heard in detail.

8. The 1 st respondent has filed a counter affidavit in OP (KAT)No.226/2015. The regularisation given to the person by name Lalitha stands conceded. The reason for not filling the regular vacancy on a permanent basis is given in Paragraph 3, which is extracted below:

“3. It is hereby submitted that during the year 1998, it was decided by the Government to restructure the Diploma and Post Diploma Courses in the Music Colleges in the State and the RLV College of Music and Fine Arts, Tripunithura, affiliated to Mahatma Gandhi University in the year 1999. The teaching posts namely Additional Instructor and Instructor were renamed as Junior Lecturer and Lecturer respectively. The above situation necessitated framing of new Special Rules and it was not possible for the Department to report the vacancies in the teaching faculty of Bharathanatyam to the Kerala Public Service Commission until the framing of revised Special Rules in the year 2008.”

As given in paragraph 5, the Special Rules were amended as per Government Order, G.O.(P)No.24/08/H.Edn. dated 19.3.2008. The need to restructure Diploma and Post Diploma Courses in the Music Colleges in the State and RLV College at Tripunithura was felt by the Government in the year ‘1999’. But, it took nearly 8 years for the Government to have the Special Rules amended and all the while, persons like the petitioners were shedding their sweat and blood for imparting and equipping the students who were undergoing various courses including ‘Bharathanatyam’ in the said Institution. By the time the Special Rules were formulated and the vacancies were reported, the petitioner had just crossed the age of 36 years and it was in the said circumstance, that the age relaxation was sought for, which should have attracted proper attention of the Government, in view of the undisputed sequence of events and the effort taken by the petitioner in teaching the students of the Institution so far, right from 1997. It is also to be noted that the request for regularisation, based on similar relief given in other cases, was forwarded to the Government as per Ext.P5, which was still pending consideration. It appears that the issue was considered by the Government quite ‘hypertechnically’, as reflected from the various proceedings produced before this Court.

9. The net result is that, the petitioner who is a duly qualified hand having a Postgraduate Degree in ‘Bharathanatyam’, with 1 st Class and 2 nd rank in the year 2002 is still kept out, even after formulation of the Special Rules and the notification issued by the PSC in the year 2008, on 15.11.2013, except for the higher age factor. Hereagain, it has to be noted that, the Special Rules were formulated by the Government on 19.3.2008 and the vacancies were reported to the PSC on 7.7.2008. The PSC also kept the matter in a cold storage and it took nearly ‘four years’ for the PSC to have issued Annexure A9 notification. For no fault on the part of the petitioner, she was put to suffer quite a lot and whatever could be extracted from her has already been extracted. Several students have come out from the Institution, bagging their Degree, Diploma, PG Diploma, etc. as the case may be, based on the lessons imparted by the petitioner. Still, her chance is still to come, for no fault on her side and she is not even permitted to participate in the selection process, referring to the higher age factor. The paradoxical effect is that, many of the students taught by the petitioner have obtained Degree/Diploma are enabled to participate in the process of selection; but their Teacher – a Postgraduate with 1 st Class and 2 nd rank is still made to wait out, virtually leaving her fate in the dark, which definitely requires to be remedied.

10. After hearing both the sides, including the learned Government Pleader and also the learned Standing Counsel for the PSC, this Court finds that the delay on the part of the Government as well as the PSC has quite adversely affected the rights of the petitioner to be considered against the regular posts of Lecturer in ‘Bharathanatyam’ despite her acquisition of the qualifications and availability of the vacancies. The eagerness shown by the Government was only to non-suit her, merely with reference to the higher age factor, which does not appear to be correct and proper. Power is of course vested with the Government under Rule 39 of Part II KS & SSR, to do justice in appropriate cases. It is also seen that, the Government was vigilant enough to have considered such cases and regularised the service of Smt.Lalitha, Dr.Mini P.Mathai and such other persons as mentioned above. What happened to Smt.Vanajakumari pursuant to Ext.P5 recommendation forwarded by the Principal way back in the year 2001 is not known. The learned counsel for the petitioner points out that, as per the information obtained to the petitioner, Vanajakumari’s case has also been considered by the Government and regularisation has been given.

11. This is a case where the petitioner, despite having the qualification and even after the Special Rules, could not get at least one chance to contest for the selection in respect of the regular vacancy during her life time and as such, her ouster from the zone of consideration cannot be sustained under any circumstance. It is seen that the Government have tried to distinguish the case of the petitioner from the other instances giving benefit to them, by stating that the petitioner was appointed only as a “Guest Lecturer” and not on a ‘provisional basis’. How the vacancy had to be filled up, was a matter for the Government/authorities to consider and there was no contribution from the part of the aspirants like the petitioner. In so far as it is admitted that permanent vacancies were available, which were not filled up for want of Special Rules, the nomenclature or the labelling as to the designation given to the person appointed to meet the contingency cannot be shifted as a lapse/negative trait of the person so selected and appointed. Petitioner is not a back door entrant; but was initially sponsored by the Employment Exchange. This being the position, the distinction sought to be drawn with reference to the ‘nature of appointment’ given to the petitioner, can in no way place any hurdle against her right for being considered at least once in the life time; more so when she is qualified in all other respects.

12. Going by the sequence of events projected before this Court, this Court finds it fit and proper to declare that the petitioner is eligible to be considered for getting her grievance redressed at the hands of the Government in terms of the power vested with the Government under Rule 39 of Part II of the KS & SSR.

13. In the above circumstances, the impugned proceedings are set aside and the Government is directed to look into the claim of the petitioner and pass appropriate orders, invoking the power and procedure under Rule 39 of Part II of KS & SSR for giving the benefit as in the case of Smt.Lalitha and Dr.Mini P.Mathai. The process as above shall be finalised at the earliest, at any rate within ‘three months’ from the date of receipt of a copy of this judgment. The selection process being pursued by the PSC, pursuant to Annexure A9 notification, will stand restricted to the remaining vacancies.

14. The petitioner shall produce a copy of this judgment before the Government for further steps forthwith.

W.P.(C)No.22964/2011 and O.P.(KAT)No.226/2015 are disposed of as above.

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