R. Bhagyalakshmi vs Principal Secretary and Kerala Electrical and Allied Engineering

P.S. Gopinathan, J.—The Petitioner in WP (C). No. 4192/2009 is the Appellant. She was provisionally appointed as a Stenographer on 19-4-1991 in second Respondent Company for a period of six months as advised by the Employment Exchange. On expiry of the term of appointment, her service was terminated. But, she continued as a casual Stenographer on daily wage basis. While so, after obtaining application from the Appellant, the then Managing Director appointed her as Personal Assistant in the scale of pay of Rs. 380 - 1262 by Ext.P1 order dated 16-4-1994 and she commenced her service with effect from 18-4-1994. Later, by Ext.P2 dated 6-3-1995 her service was confirmed with effect from 18-10-1994 in the scale of pay of Rs. 750 - 1997. While so, by Ext.P3 dated 29-3-1997, the Appellant was posted as Stenographer under the General Manager (Marketing). It appears that there were so many such appointees working in the second Respondent Company in various sections. The first Respondent having noticed the back-door employment, directed the 2nd Respondent to terminate the services of such employees who secured appointment through back-door methods. Consequently, Ext.P4 memo dated 10-7-1997 was served upon the Appellant and other employees to show cause for not terminating their services. Challenging Ext.P4, the Appellant and other affected 145 persons moved this Court by filing OP. No. 16404/1997. During the pendency of that proceedings the services of 145 persons affected by Ext.P4 order was regularized, it is submitted, on compassionate grounds. The Appellant and four others were not regularized. So, she filed a representation seeking regularization. Since, no orders were passed she moved this Court by filing WP(C). No. 5285/2008.

By Ext.P9 judgment this Court disposed that writ petition directing the first Respondent to consider her representation with notice to her. The first Respondent, accordingly, considered her representation and her service as Stenographer was regularized by Ext.P10 order dated 1-9-2008. Ext.P10 order is silent regarding the commencement of the service. Assailing Ext.P10, the Appellant preferred WP(C). No. 4192/2009 seeking declaration that she is entitled to have her service as Personal Assistant regularized with effect from 16.4.1994. The learned single Judge by the impugned judgment dated 28-5-2010 found that the Appellant is entitled to regularization from 18-4-1994, the date of commencement of her service by Ext.P1. Whereas, her request for regularization as Personal Assistant to the Chairman was declined. As against the judgment declining her prayer for regularization as Personal Assistant to the Chairman, this appeal was filed.

We have heard the learned Counsel appearing for the Appellant as well as the Government Pleader and the Standing Counsel for the second Respondent. Irrespective of her entitlement to the claim for appointment as Personal Assistant, we find that she was, in fact, having no educational qualification to claim appointment to that post. The Respondents 1 and 2 in their counter-affidavit had specifically stated that the qualification for appointment as Personal Assistant are:

(i) Graduation in English Literature;

(ii) Typewriting and Shorthand Higher; and

(iii) Ten years experience in similar post.

There is no whisper in the petition that the Petitioner had such qualification. Curiously, we note that the Petitioner had conveniently omitted to plead as to whether she has got sufficient educational qualifications and required experience to get an appointment as a Personal Assistant. The Petitioner is only a Commerce graduate with Typewriting and Shorthand Lower. There is no case that she is having any experience. Though the Petitioner had, in her reply-affidavit, put the Respondents to proof of the averments in the counter-affidavit regarding qualification for the post of Personal Assistant, there is no whisper that the educational qualification for the post of Personal Assistant affirmed in the counter-affidavit is not correct. There is also no whisper in the reply-affidavit that she has got sufficient qualification to hold the post of Personal Assistant. When a party seeks a relief asserting rights, it is for that party to establish by pleadings that he or she is qualified for that right. In the absence of specific pleadings, it is quite appropriate to accept the pleadings in the counter-affidavit. So, reliance has to be given to the averments in the counter-affidavit and to conclude that the Petitioner lacks qualification.

It is pertinent to note that Ext.P3 by which the Appellant was posted as Stenographer was not assailed so far. Therefore, as on the date of Ext.P4, the assailed memo, the Appellant was only a Stenographer. So long as the Appellant has no challenge against Ext.P3, her claim seeking posting as Personal Assistant is devoid of merit. Adding to that the Respondents have got a case that the post of Personal Assistant is of officer category and that of the Stenographer is of worker category and that though in Ext.P1 it is stated that the Appellant was appointed as Personal Assistant, she was given a pay scale of Rs. 380 - 1262, which is that of a worker category and that scale of pay of the Personal Assistant affirmed as Rs. 1850-3550 in the counter-affidavit is not countered by the Appellant. Therefore, it is to be concluded that though the Appellant was designated as Personal Assistant, she was appointed in a lower category. From the materials on record, it is evident that the vacancy was not notified. But, on an application filed by the Appellant, she who was working as a casual Stenographer on daily wages, somehow or other managed to get her appointed on Stenographer''s scale with designation as Personal Assistant. It appears to be a clandestine dealing on personal consideration and not an appointment on merits or on the basis of qualification or after a due selection process or there is any transparency in her appointment. Really, the Appellant is not entitled to regularization. But, the first Respondent was pleased to regularize on compassionate grounds. Whatever that be, the Appellant lacks qualification to be appointed as Personal Assistant. Therefore, she is not entitled to be regularized as a Personal Assistant. Her claim on that count lacks merit and deserves no consideration. In the above circumstance, we find that the appeal is ill-advised and devoid of merit.

In the result, the appeal is dismissed with no order as to costs.