LEGAL FIGHT CONTINUING

Our Association had filed W.P.(C).No. 3425/2011 and took out notice by paper publication in Mathrubhoomi daily dated 02.07.11 for fresh seniority list of Draughtsman Grade II in accordance with the Rules. Some of the direct recruits have been impleaded in this case. 

FINAL LIST ON 2012 IN COMPLIANCE OF OUR CASE

Our Association was filed W.P.(C).No. 13966 of 2009(M). The Hon’ble High Court in it’s judgment in W.P.(C).No.13966 of 2009(M) has directed the KWA to finalize the seniority list of Draftsman Gr.II after considering the objections filed by the petitioner Association. The issues involved in the judgment in W.P.(C).No.13966/2009(M) is a dispute on seniority between promotees and direct recruits in the post of Draftsman Gr. II. The Kerala Water Authority was published and finalized seniority list on 2012 in compliance of our case. The ratio is to be maintained by accommodating the promotes in appropriate positions.

LEGAL FIGHT

      The Kerala Public Health Engineering Subordinate Service Special Rues has been adopted by the Kerala Water Authority for the purpose of recruitments and promotions to the various posts in the Kerala Water Authority. Appointment to the post of Draughtsman Grade II is in the ratio I:1 by promotion from Overseer Grade III and by direct recruitment.  The above said quota is to be followed on the basis of cadre strength and not on the basis of available vacancies. The dispute arose on account of the reason that direct recruits were appointed in excess of the quota available to them. The cadre strength of the Draughtsman Grade II is 409 of which 205 will go to promotees and 204 for direct recruits. The Kerala Water Authority has been erroneously making direct appointment to the above said cadre in excess of the quota prescribed by the Special Rules. The same dispute regarding Draughtsman Grade I had come up for consideration before the Division bench of this Hon’ble Court and as per judgment dated 13.07.2000 in W.A.No.1906 of 1998 direction was issued for preparation of fresh seniority list. The Division Bench found that the delay was not due to the fault of the employees and hence K.W.A is liable to rectify the defects.

Our Association was filed O.P.No.4850 of 2000 for not to resort direct recruitment in excess of quota to fill up the vacancies of Draftsman Gr.II, until the deficiency of the promotees are made good with retrospective promotion from Overseer Gr.III in accordance with the ratio 1:1. The Hon’ble High Court in it’s judgment dated 02.01.2006 in O.P.No. 4850/2000- B was pleased to direct the KWA to consider the matter with notice to the first petitioner Association. 

ILLEGAL SUPERNUMERARY

The Kerala Water Authority have been made 83 Nos. of illegal appointments including 42 Nos. of supernumerary in the post of Assistant Engineers during the period of 2011 and 2012. They are misusing their official capacity by filling Degree holders in the various promotion posts of Diploma holders. Thus Diploma holders are stagnated in the lower posts. It is evident from the promotion orders issued from the Degree holders Assistant Engineer to the post of Assistant Executive Engineer in the quota reserved for the Diploma holders violating orders passed by the Hon’ble this court in its Judgment dated 31.12.2012 in WP © No. 19058 of 2012 (F).  As per the Judgment, “no post/vacancy coming within the quota earmarked for the Diploma holders shall be caused to be filled up even temporarily, by accommodating any Degree holder”.

NOT HEARD

Our Association had approached the Hon’ble High Court in the very beginning by filing WP No. 39127of 2003 against the attempt for the excess direct appointment over quota rule. The Hon’ble High Court in its interim order dated 13.07.2004 had directed the official respondents to maintain the prescribed ratio. The said writ petition was disposed off directing the respondents to maintain the cadre strength ratio.

REPORTED DECISIONS

1.        The Hon’ble Division bench of this Court in the decision Aloysius v. Sarada Muraleedharan reported in 1995 (2) KLT 741 held that when promotion is outside the quota, the seniority would be reckoned from the date of the vacancy within the quota. The previous promotion would be regular only from the date of vacancy within the quota and seniority shall be counted from that date and not from the date of his earlier promotion.

2.        The Hon’ble Division bench of this Court in the decision reported in 2009 (3) KLT 274 held that the decision of the appointing authority to report vacancies, in violation of the quota prescribed in the Special rules, read in the light of Note 3 to R5 of Part II of the KS & SSR, was an action in excess of jurisdiction and therefore, a nullity. The direct recruits cannot get seniority based on the date of advice, as they are advised in excess of their quota. They have to wait for their turn, to get seniority. The normal rule governing seniority in the General rules is not applicable to them, as their appointments were against the provisions of the Special rules. Whenever it is found a change in the date of promotion is warranted, that is carried out by assigning a different date in the seniority list. There need not necessarily be any separate appointment order.

Rule 27 (a) & (c)

      As per Rule 27(a) where the method of appointment to the post are by promotion and by direct recruitment in a fixed ratio, shall be determined as where the first vacancy in a category is for appointment by promotion and the second  vacancy is for appointment by direct recruitment and when the first two vacancies arise in that category a departmental hand shall be appointed regularly by promotion, as the case may be, in the first vacancy and in the absence of direct recruit reporting  for duty in the second vacancy a departmental hand shall be appointed temporarily by promotion, as the case may be, in that vacancy. In the case a direct recruit does not report for duty till a third vacancy arises in the department, the appointment of person temporarily by promotion in the second vacancy shall be regularized from the date of occurrence of third vacancy. Similarly if two more vacancies are in the cadre (total five) the departmental hands are entitled for three vacancies and hence the promotion of the third man shall be regularized from the date of occurrence of the fifth vacancy. The direct recruits shall be entitled for rank and seniority from the date of his first effective advice.

   Rule 27(a) and (c) only stipulates that while determining the seniority of direct recruits it should be based on the date of their effective advice and when two or more persons are included in the same advice list, their relative seniority list shall be fixed according to the order in which their names are arranged in the advice list. That will not prevent the KWA to place promotes in the date of occurrence of vacancies within quota rule.