Ananthakrishnan v. State of Kerala — 1975 DIGILAW 54 (KER)

JUDGMENT V. Balakrishna Eradi, J. 1. Writ Appeal No. 540 of 1973 has been filed against the judgment of our learned brother Khalid, J. dismissing O.P. No. 5138 of 1972. By that original petition the writ petitioner (appellant before us) who is a II Grade Professor in the Kerala Collegiate Education Service had sought to quash the Government Order Ext. P-1 dated 21st June 1972 promoting provisionally respondents Nos. 2 and 3 in the original petition as Principals of Government Training Colleges. The writ petition also contained a prayer for the issuance of a writ of mandamus compelling the respondent-the State of Kerala-to make regular promotions to the available posts of Principals of Government Training Colleges in conformity with the provisions of the special rules and to grant such a promotion to the petitioner. The learned Single Judge dismissed the writ petition on two grounds. Firstly, it was held that the petitioner has failed to establish that he possesses the qualifications prescribed by the rules for promotion to the post of Principal. Secondly, the learned Judge also held that the provisions of the special rules framed by the Government of Kerala fixing the qualifications for the post of Principals of Training Colleges cannot apply to respondents Nos. 2, 3 and 5 who are personnel allotted to this State from the Madras service in as much as prior approval of the Central Government had not been obtained before the introduction of the special rules prescribing fresh qualifications which are different from those specified under the Madras rules. The appellant contends that both the above grounds stated by the learned single Judge are incorrect and unsustainable and that the dismissal of the writ petition was not justified. 2. The parties in the writ appeal will be hereinafter referred to with reference to their array in the writ petition- O.P. No. 5138 of 1972. 3. O.P. Nos. 4416 and 4530 of 1972 have been filed by two other members of the Kerala Collegiate Education Service holding the posts of II Grade Professors claiming practically the same reliefs as have been sought by the writ petitioner in O.P. No. 5138 of 1972 who has filed Writ Appeal No. 540 of 1973. 3. O.P. Nos. 4416 and 4530 of 1972 have been filed by two other members of the Kerala Collegiate Education Service holding the posts of II Grade Professors claiming practically the same reliefs as have been sought by the writ petitioner in O.P. No. 5138 of 1972 who has filed Writ Appeal No. 540 of 1973. Since the contentions raised in these writ petitions are substantially the same as those which fall for decision in the writ appeal these two original petitions have been heard along with the writ appeal on the suggestions made by counsel appearing on both sides. 4. In O.P. No. 5138 of 1972 the learned single Judge did not consider it necessary to go into the merits of the main contentions put forward by the parties since in his opinion the writ petition had to fail on two grounds, namely, that the writ petitioner had not adduced satisfactory proof of his claim that he is fully qualified for the post of Principal and that the special rules relied on by the petitioner cannot be applied against respondents Nos. 2 and 3 for want of prior approval of the Central Government under the proviso to section 115 (7) of the States Reorganisation Act. 5. On the first aspect, the learned Advocate for the appellant strongly contended that since the State Government had categorically admitted in the counter-affidavit filed on its behalf that the petitioner is possessed of all the requisite qualifications for promotion to the post of Principal of the Training Colleges, the learned single Judge was not justified in stating that the writ petition was liable to be dismissed on the ground that the petitioner had failed to produce documentary proof of the qualifications possessed by him. The qualifications required under the special rules for promotion to the post of Principal in Training Colleges are: First or second class post-graduate degree, first or second class in B.T., L.T. or B.Ed. or their equivalent, and a minimum of seven years' teaching experience at the degree level or post-graduate, degree level. In paragraph 2 of the counter-affidavit filed on behalf of the Government it has been stated that "the petitioner is an M.Sc. II Class and M.Ed. He has got 17 years' teaching experience in colleges". or their equivalent, and a minimum of seven years' teaching experience at the degree level or post-graduate, degree level. In paragraph 2 of the counter-affidavit filed on behalf of the Government it has been stated that "the petitioner is an M.Sc. II Class and M.Ed. He has got 17 years' teaching experience in colleges". Later it is followed by a further averment in paragraph 13 of the counter-affidavit that the petitioner possesses the requisite qualifications to hold the post of Principal in Training Colleges. It is no doubt true that in the counter-affidavit filed by the 5th respondent he has taken a contention that the petitioner does not possess the requisite qualifications for appointment as Principal. No weight can be attached to the said plea taken by a private party when the Government whose action is under challenge in the writ petition has categorically stated before this court that the petitioner is duly possessed of the qualifications for appointment to the post of Principal. The said statement in the counter-affidavit of the State must be taken to have been made on the basis of a proper verification of the service records of the petitioner wherein authentic information regarding his academic qualifications must be contained. It is, however, unnecessary for us to rest our conclusion on the said presumption alone, because along with the memorandum of writ appeal the petitioner has produced two additional documents which conclusively prove that he is duly qualified for the post of Principal. Ext. P-9 is a certificate issued by the University of Madras certifying that the petitioner has qualified for the Degree of Master of Science having passed the M.Sc. Degree Examination in Mathematics held in 1955 in the Second Class and also the Degree certificate issued to the petitioner by the Karnatak University certifying that he has passed the M.Ed. Examination of that University in the First Class and had been conferred the Degree of Master of Education on the 31st December, 1971. These documents establish beyond all doubt that the petitioner is possessed of the qualifications prescribed by the special rules for promotion to the post of Principal in Training Colleges. 6. Examination of that University in the First Class and had been conferred the Degree of Master of Education on the 31st December, 1971. These documents establish beyond all doubt that the petitioner is possessed of the qualifications prescribed by the special rules for promotion to the post of Principal in Training Colleges. 6. The second ground mentioned by the learned single Judge for dismissing the original petition is that the special rules framed in G.O. (P) 357/PD, dated 28th October 1967 laying down the qualification for the post of Principal in Training Colleges cannot apply to respondents Nos. 2, 3 and 5, who are officers allotted from Madras, since previous approval of the Central Government had not been obtained under the proviso to section 115 (7) of the States Reorganisation Act before the special rules were issued. In our opinion, the above view taken by the learned single Judge cannot be sustained in view of the recent pronouncement of the Supreme Court in Mohammed Shujat Ali v. Union of India, A.I.R. 1974 S.C. 1631. In that decision the Supreme Court has held that the Memorandum No. S.O. SRDI-I-ARM-57 dated 11th May, 1957 addressed by the Government of India to all the State Governments communicating the decision of the Central Government that it would not be appropriate to provide for any protection in respect of rules and conditions of service applicable to Government servants effected by reorganisation in regard to certain matters specified therein including departmental promotion, amounted to the grant of a "previous approval" authorising variations being made in conditions of service relating to those matters and that such general approval would satisfy the requirements of the proviso to section 115 (7) of the States Reorganisation Act. In the light of this pronouncement of the Supreme Court it must be held that the qualifications prescribed by the special rules will govern all the members of the service in question inclusive of the officers allotted from Madras. 7. The conclusion that emerges from the foregoing discussion is that both the grounds stated in the judgment of the learned single Judge for dismissing the original petitionO.P. No. 5138 of 1972 without going into the merits of the main controversy raised by the parties are not sustainable. 7. The conclusion that emerges from the foregoing discussion is that both the grounds stated in the judgment of the learned single Judge for dismissing the original petitionO.P. No. 5138 of 1972 without going into the merits of the main controversy raised by the parties are not sustainable. We shall therefore proceed to consider the merits of the principal contentions raised in the said writ petition as well as in the two connected original petitions now posted before us. 8. Under the special rules the method of appointment to the post of Principal in Training Colleges is as follows: (i) By promotion from qualified I Grade Professors in Arts and Science Colleges. (ii) In the absence of eligible and suitable hands for promotion in the category of I Grade Professors in Arts and Science Colleges, by promotion from II Grade Professors in Arts and Science Colleges and Training Colleges. Under sub-rule (b) of rule 3 of special rules, promotions are to be made from a select list prepared from among eligible officers on the basis of merit and ability, seniority being considered only when merit and ability are approximately equal. The select list is to be prepared by the departmental promotion committee constituted for the said purpose. 9. All the petitioners are now holding the posts of II Grade Professors and they possess all the qualifications prescribed by the special rules for promotion to the post of Principal. They would be eligible for such promotion after selection by the departmental promotion committee in case there is no qualified hand suitable for promotion in the category of I Grade Professors. The grievance of the petitioners is that when vacancies arose in the posts of Principals of Government Training Colleges at Trivandrum and Calicut those vacancies were filled up by granting provisional promotions to unqualified hands, namely, Sri K. Radhakrishnan and Smt. C. P. Bharathy Amma who have been impleaded as respondents in all the writ petitions, even though fully qualified persons, namely, the writ petitioners were available for regular appointment. The petitioners contend that the device of making these temporary and provisional appointments under rule 31 (a) (i) of the Kerala State and Subordinate Services Rules has been resorted to by the State Government only for circumventing the provisions of the special rules in order to confer an undue advantage to persons who are not qualified for regular promotion. The petitioners contend that the device of making these temporary and provisional appointments under rule 31 (a) (i) of the Kerala State and Subordinate Services Rules has been resorted to by the State Government only for circumventing the provisions of the special rules in order to confer an undue advantage to persons who are not qualified for regular promotion. It is urged that by the said process the legitimate claims which the petitioners have under the special rules for grant of regular promotions to the cadre of Principal have been wrongfully denied to them in violation of Article 16 of the Constitution. It is also submitted on behalf of the petitioners that the action of the Government in indefinitely prolonging the duration of the provisional appointments of the unqualified hands without taking any steps to effect regular appointments in consultation with the departmental promotion committee constitutes an abuse of the power vested in Government under rule 31 (a) (i) and that hence a writ of mandamus should be issued by this court compelling the Government to terminate the provisional appointments of the unqualified hands and to make regular appointments to the available posts of Principals in the Training Colleges from amongst the qualified persons in the eligible category. 10. It is not denied that respondents Nos. 2 and 3, namely, Sri Radhakrishnan and Smt. Bharathy Amma are not qualified for regular promotion to the post of Principal under the special rules inasmuch as they do not have I or II Class degrees in B.T. or B.Ed. or L.T. or their equivalents. In the counter-affidavit filed on behalf of the State Government great stress has been laid on the fact that both the aforementioned persons are seniors in service in relation to the writ petitioners and that they have been holding the posts of I Grade Professors. It is also mentioned that the teaching experience possessed by respondents Nos. 2 and 3 exceeds that of the petitioners by many years. The counter-affidavit proceeds to state that it was on a consideration of the aforementioned aspects that the Government decided to provisionally promote respondents Nos. 2 and 3 as Principals of the Training Colleges pending the passing of orders regarding the grant of exemption to them from the qualifications prescribed in the special rules. The counter-affidavit proceeds to state that it was on a consideration of the aforementioned aspects that the Government decided to provisionally promote respondents Nos. 2 and 3 as Principals of the Training Colleges pending the passing of orders regarding the grant of exemption to them from the qualifications prescribed in the special rules. Although the Government may have acted with the best of intentions in making the said temporary promotions we do not find it possible to regard its approach to the matter as valid or legal. Once special rules have been made laying down the qualifications for promotion to any post or category in a service they have to be strictly observed and enforced. As pointed out by a Full Bench of this court in Sreedharan Pillai v. State of Kerala, 1973 K.L.T. 151, it is not legally open to the Government to deviate from the provisions of the rules in any individual case even on considerations of hardship etc., particularly when such departure from the principle laid down in the rule would adversely affect the rights of other persons in the service. The explanation given in the counter-affidavit of the State Government that the provisional appointments were resorted to as a stop-gap arrangement pending the passing of orders granting exemption to the unqualified hands, cannot, therefore, be accepted as valid in law. 11. Rule 31 (a) (i) of the Kerala State and Subordinate Services Rules contemplates temporary promotions being made only where there is a pressing administrative need to fill up a vacancy emergently, the urgency for filling up the post being such that it is not possible to wait till the procedure for making a regular appointment is gone through. Appointments made under this clause are intended to be only in the nature of stop-gap arrangements and it is specifically provided under clause (ii) of sub-rule (a) that no person who does not possess the qualifications prescribed for the post in question shall ordinarily be promoted under clause (i) and that in case an unqualified hand has been given a promotion under clause (i) he should be replaced as soon as possible by promoting a person possessing the requisite qualification. It is therefore manifest from the terms of the rule 31 (a) itself that the power conferred by it is not to be used for the grant of temporary promotions to unqualified hands when fully qualified persons are available in the eligible category. It has been pointed out by this court on many previous occasions that the provisions of rule 9 (a) (i) and rule 31 (a) (i) of the Kerala State and Subordinate Services Rules are to be resorted to only when there is a real administrative need to fill up a post urgently and that it will be a misuse of the power conferred by those rules if in the absence of any administrative emergency, temporary appointments or promotions are made thereunder regardless of the provisions contained in the relevant special rules and the appointees are indefinitely allowed to function in the concerned posts. No valid reasons have been set forth in the counter-affidavit as to why the departmental promotion committee has not been so far convened even though more than two years have passed since the vacancies have arisen; nor is any satisfactory reason stated as to why it was considered necessary to give temporary promotions to unqualified hands like respondents Nos. 2 and 3 when qualified hands like the writ petitioners were available. 12. During the pendency of the writ appeal and the connected original petitions the Government have issued an order G.O. Rt. 980/74/H. Edn., dated 3rd June 1974 produced and marked as Ext. R-2 in O.P. No. 4416 of 1972 purporting to grant exemption from the minimum qualifications prescribed in the special rules to respondents Nos. 2 and 3, namely, Smt. C. P. Bharathy Amma, and Sri K. Radhakrishnan. Relying on the said order, counsel for these respondents contended that his clients should now be regarded as fully eligible for promotion as Principals in the Training Colleges and that hence no illegality is involved in their being permitted to continue to occupy the posts of Principals on the strength of the provisional appointments already given to them. We find no merit in this contention. In our opinion the order Ext. We find no merit in this contention. In our opinion the order Ext. R-2 has to be regarded as invalid and void in the light of the principle laid down by this court in the Full Bench Judgment in Sreedharan Pillai v. State of Kerala, 1973 K.L.T. 151, wherein it has been categorically held that the Government is not competent to grant such individual exemption from qualifications laid down in the special rules by invoking its power under rule 39 of the Kerala State and Subordinate Services Rules. We reject the contention advanced on behalf of respondents Nos. 2 and 3 that they have become eligible for regular promotion as Principals in the Training Colleges by virtue of the exemption granted under Ext. R-2. 13. Although it must follow from the foregoing discussion that the action taken by the Government in giving temporary promotions to respondents Nos. 2 and 3 under rule 31 (a) (i) cannot be regarded as valid or proper, we do not consider it necessary to interfere with those promotions in view of the following directions that are being issued to the Government. We direct the State Government to take immediate steps to convene a meeting of the departmental promotion committee for drawing up a select list of qualified persons in the eligible category found suitable for appointment as Principals in Training Colleges and to make regular appointments to the posts now occupied by the temporary hands within a period not exceeding three months from today. The temporary promotions of respondents Nos. 2 and 3 should on no account be kept in force beyond the aforementioned period of three months. 14. Writ Appeal No. 540 of 1973 is allowed and the judgment of the learned single Judge is set aside. In O.P. No.5138 of 1972 as well as in O.P. Nos. 4416 and 4530 of 1972 there will be a direction to the State Government in the terms set forth in the previous paragraph. All the three writ petitions are disposed of with the said direction. The parties will bear their respective costs in all these proceedings.