The petitioner is the wife of late Sri.C.Viswanathan, who passed away on 10.2.2012 while he was serving as Additional Subordinate Judge at Kollam. The petitioner belongs to the Pulaya community which is a scheduled caste in the State of Kerala. Shortly after her husband passed away, the petitioner, who has passed the S.S.L.C. Examination submitted Ext.P1 application dated 2.7.2012 for employment assistance under the Dying-in-Harness Scheme. In that application she sought appointment as Lower Division Clerk/ Amin/Attender/Process Server in the judicial department. The application submitted by the petitioner was duly recommended by this Court and it was forwarded to the Government. The Government after considering the petitioner's application issued Ext.P2 order dated 2.3.2013 whereby it accorded sanction for the appointment of the petitioner as Amin/Attender/Process Server in the judicial department. Thereupon, a formal order of appointment was also issued and she joined duty on 25.3.2013. She thereafter submitted Ext.P6 representation dated 7.8.2013 wherein she requested that she may be appointed as Lower Division Clerk. In the said representation she contended that though by Ext.P3 Government order dated 1.7.2011, the Government had modified the qualification prescribed for the post of Lower Division Clerk in various departments as “pass in Plus 2 or equivalent”, the special rules for the Kerala Judicial Ministerial Subordinate Service had not been amended, that Ext.P3 Government order was kept in abeyance by Ext.P4 order dated 23.7.2013 and therefore, steps may be taken to appoint her as Lower Division Clerk under the Dying-in-Harness Scheme. The said application was duly forwarded by this Court to the Government and the Government, relying on Ext.P5 Government order dated 29.8.2013 rejected it and communicated the decision taken by the Government to the Registrar General of this Court by Ext.P7 letter dated 27.11.2013 with copy to the Additional District Judge, Mavelikkara for service on the petitioner. Hence this writ petition challenging Ext.P7 letter and seeking the following reliefs: “i) call for the records leading to Ext.P7 quash the same by the issue of a writ in the nature of certiorari or any other appropriate writ, order or direction.
ii) issue a writ in the nature of mandamus commanding the 1st respondent to grant appointment to the petitioner as L.D.C.
forthwith.
iii) issue a writ in the nature of mandamus commanding the respondents to consider the petitioner's claim for appointment as L.D.C. untrammelled by the limitation contained in Exts.P4 and P5 regarding reopening of closed cases.”
2. The main contention raised in the instant writ petition is that though the Government had by Ext.P3 order modified the qualifications for various posts including the post of Lower Division Clerk in consultation with the Kerala Public Service Commission, the special rules had not been suitably amended and therefore, as the petitioner was qualified going by the provisions in the special rules for appointment as Lower Division Clerk, she ought to have been appointed as Lower Division Clerk. It is contended that the injustice meted out to the petitioner by relying on Ext.P3 Government order and ignoring the special rules, requires to be remedied.
3. A statement dated 26.3.2014 has been filed by Sri.M.Salim, Under Secretary to Government, Home Department. The main contention raised therein is that as the petitioner had already entered service on 25.3.2013, she cannot claim the benefit of Ext.P4 Government order, staying Ext.P3 Government order, as clarified in Ext.P5 Government order. It is contended that in view of Ext.P3 Government order by which the qualification for the post of Lower Division Clerk was modified as “pass in Plus 2 or equivalent”, the petitioner who possesses only a pass in the S.S.L.C. Examination, cannot be appointed as Lower Division Clerk.
4. I heard Smt.Anu Sivaraman, learned counsel appearing for the petitioner, Sri.Abhijett Lessli, learned Senior Government Pleader appearing for the State of Kerala and Sri.B.Unnikrishna Kaimal, learned counsel appearing for this Court. Smt.Anu Sivaraman, learned counsel appearing for the petitioner contended that notwithstanding the fact that the Government had in consultation with the Kerala Public Service Commission decided to modify the qualification for the post of Lower Division Clerk and raise the qualification from S.S.L.C. prescribed in the special rules to “pass in Plus 2 or equivalent”, the special rules had not been suitably amended and therefore, the petitioner should not have been denied appointment as Lower Division Clerk in the first instance itself. The learned counsel contended that the Government have in Ext.P5 remedied the injustice that would have been meted out to persons awaiting appointment and therefore, there is no reason why the petitioner should not be given the benefit of Ext.P5. The learned counsel appearing for the third respondent supported the petitioner and submitted that the petitioner is eligible going by the provisions in the special rules, for appointment as Lower Division Clerk. Per contra, Sri.Abhijett Lessli, learned Senior Government Pleader appearing for the State of Kerala contended relying on the stipulations in Ext.P5 Government order that as the petitioner was appointed prior to Ext.P4 Government order, her case is governed by Ext.P3 Government order and as the petitioner does not admittedly possess a pass in plus-2 or equivalent she was not qualified or eligible to be appointed as Lower Division Clerk.
5. I have considered the submissions made at the Bar by learned counsel appearing on either side. I have also gone through the pleadings and the materials on record. The qualification prescribed for the post of Lower Division Clerk in the Kerala Judicial Ministerial Subordinate Service as on 2.7.2012 when the petitioner applied for compassionate appointment as Lower Division Clerk and as on 25.3.2013 when she joined duty pursuant to Ext.P2 Government order is a pass in the S.S.L.C. Examination. The special rules have not so far been amended. Notwithstanding the fact that the Government had in consultation with the Kerala Public Service Commission modified the qualifications for the post of Lower Division Clerk in various departments, the Government themselves realised the fact that unless the special rules are amended the qualification set out in Ext.P3 cannot be inserted upon. Exts.P4 and P5 establish the said fact. Such being the situation, I am of the opinion that the Government ought to have remedied the injustice meted out to the petitioner and accorded sanction for her appointment as Lower Division Clerk instead of rejecting her request in Ext.P6. The stipulation in Ext.P5 that those who had been denied appointment as Lower Division Clerk having regard to the stipulation in Ext.P3, cannot in my opinion operate in view of the stand taken by the Government in Exts.P4 and P5 orders. If the stipulation in Ext.P5 that it will have only prospective effect were to operate, it will lead to a situation where the injustice meted out to an applicant who had sought appointment as Lower Division Clerk and was denied it because of Ext.P3 would be perpetuated. I therefore find no reason why the relief prayed for by the petitioner should not be granted.
For the reasons stated above, I allow the writ petition, set aside Ext.P7 and direct respondents 1 and 2 to issue orders according sanction for the appointment of the petitioner as Lower Division Clerk with effect from this date. Necessary orders in that regard shall be issued expeditiously and in any event within an outer limit of one month from the date on which the petitioner produces a copy of this judgment before the Secretary to Government, Home Department. The parties shall bear their respective costs.
vpv Sd/-
P.N.RAVINDRAN JUDGE