Point of Law: When a supernumerary post is sanctioned, it is the duty of the head of the office/department to absorb the incumbent in the first vacancy.

JUDGMENT :

DEVAN RAMACHANDRAN, J.

1. The petitioner was appointed as an Assistant in the services of the Kannur University, by creating a supernumerary post to accommodate him, on the strength of Ext.P2 Government Order dated 07.08.2013, which provides for such a benefit to persons who are physically disabled and who had been appointed initially through the employment exchange for a period of less than 180 days.

2. The petitioner says that he was initially appointed for 179 days in the Police Department, but that when he obtained an opportunity with the Kannur University, he resigned his job and joined it, which was accepted through Ext.P4 order of appointment dated 20.12.2013. He says that, subsequently, when a regular vacancy arose, the University issued Ext.P5 order appointing him to it, acting under the provisions of Article 69(C) of Chapter IV of Volume I of the Kerala Financial Code and that his probation was also thereafter declared. He says that, however, in the meanwhile, the Government brought out another order dated 03.02.2016, a copy of which is on record as Ext.P7, whereby, a clarification is made to Ext.P2 saying that persons who are appointed on supernumerary posts will continue only on such posts and will not be entitled to any other service benefits, including promotion or declaration of probation.

3. The petitioner says that on the basis of the afore order, the University has issued Ext.P8 cancelling his appointment in the vacancy of Office Attendant and reverting him to the supernumerary post created by them in the past. He adds that he represented against this before the Government and that when it is not properly considered, he had approached this Court and obtained Ext.P10 judgment; which finally led to Ext.P11 order, wherein, again it has been reiterated that Ext.P2, read with Ext.P7, could not grant him any benefit, including for the purpose of promotion or declaration of probation. The petitioner, therefore, prays that Exts.P7, P8 and P11 be set aside and the University be directed to grant him all benefits, as had been given to him through Ext.P5 order.

4. I have heard Smt. Thulasi K. Raj - learned counsel for the petitioner; Sri. I.V. Pramod - learned standing counsel for the University and Smt. Resmi Thomas - learned Government Pleader.

5. Smt. Resmi Thomas - learned Government Pleader, answered the afore contentions of the petitioner, contending that Ext.P2 had made it very clear even in the year 2013, that persons like the petitioner could have been accommodated only against supernumerary posts, which would be abolished on the incumbent demitting office. She submitted that, therefore, Ext.P7 cannot be construed to be a new order, but only a clarification of the terms and conditions of Ext.P2 and therefore, that the action of the University in having shifted the petitioner to regular vacancy was incorrect and improper and that he can only be continued in the supernumerary post, as has been ordered in Ext.P7. She thus prayed that this writ petition be dismissed.

6. The learned standing counsel for the University - Sri. I.V. Pramod, submitted that his client acted faithfully in granting appointment to the petitioner in a regular vacancy, under the mandate of Kerala Financial Code; and that this was done not only in his case, but in the case of several other persons also. He added that, subsequently, the petitioner completed his probation, leading to the University issuing Ext.P6 order dated 31.10.2015 to such effect; but that when Ext.P7 was issued, they were left without any other option, but to cancel the petitioner's appointment to the regular post of Attendant by issuing Ext.P8 order dated 23.05.2016. He prayed that, therefore, no further orders be issued against his client.

7. When I consider and evaluate the afore submissions, it is indubitable that the University appointed the petitioner pursuant to Ext.P2 in a supernumerary post. He was, thereafter, shifted, along with few others, to regular vacancie