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1977 DIGILAW 123 (KER)

Sudhakaran v. State of Kerala

1977-06-08

K.K.NARENDRAN, V.P.GOPALAN NAMBIYAR

body1977
JUDGMENT Gopaln Nambiyar, C.J. 1. The appeal is against the judgment of a learned Judge of this Court who dismissed the Original Petition - O.P. No. 1073 of 1974, largely and mainly on the ground that the Petitioner-Appellant had no grievance, nor any apprehension of any grievance. The writ Petition was to quash Exts. P-1 and P-2 orders of the Government, and the Petitioners' grievance, in short and in substance, is that, whereas a ratio of 2:1 is maintained as between the Lower Division posts and the Upper Division posts in the Police Department, making it necessary for the Upper Division posts to bear a certain ratio to the Lower Division, as a result of the impugned orders, a large number of the Lower Division posts have been abstracted away, and styled as Havildar Clerks and Havildar Typists; as a result of which, the number and proportion of Upper Division posts and the avenues for promotion of Lower Division Clerks and Typists like the Petitioners, have all been considerably reduced. It was contended that this result, which was brought about by the executive orders Exts. P-1 and P-2, is violative of the statutory provisions and Rules governing the recruitment and conditions of service, and that these executive orders ' cannot prevail against statutory rules. The argument was developed as follows: Rule 3, Part II of the Kerala State and Subordinate Services Rules defines the term "approved candidates". Sub-clause (a) of the rule reads that all first appointments to the service are to be made by the appointing authority on the advice of the Public Service Commission in respect of posts falling within the purview of the Commission and in all other cases by the appointing authority from a list of approved candidates prepared in the prescribed manner. Turning to the Kerala Public Service Commission (Consultation) Regulations, Rule 4(b) of the same provides that it shall not be necessary for, the Commission to be consulted in respect, inter alia, of posts specified in the Annexure to the Regulations. That focusses attention on the Annexure. In the Annexure, we see item 8(i) which is in respect of all posts in the Police Department below the rank of Sub Inspectors of Police except the clerical staff. The result is that recruitment to the clerical staff is within the purview of the Public Service Commission. That focusses attention on the Annexure. In the Annexure, we see item 8(i) which is in respect of all posts in the Police Department below the rank of Sub Inspectors of Police except the clerical staff. The result is that recruitment to the clerical staff is within the purview of the Public Service Commission. Part I, Rule 12, Clause (20) of the Kerala Service Rules further seems to make clear the concept and position of a 'Ministerial Officer'. That term is defined as meaning an Officer of a Subordinate Service whose duties are entirely clerical, and any other class of Officer specially defined as such by general or special orders of the Government. 2. We may next turn to Section 16 of the Kerala Police Act, 1960, which gives the Inspector-General of Police, subject to the approval of the Government, the power to frame orders and rules, not inconsistent with this Act, relating to the general government and distribution of the Police force, the classification, rank and service and duties of the members thereof; and other matters. It is in pursuance of this section (and, may be, as stated by the Government Pleader, under other powers as well), that the Kerala Police Manual has been promulgated. Chapter II thereof is headed, 'Recruitment, Training, Examination and Probation'. Rule 19 in the said chapter provides for division of the Police Department into three different services as shown below. The categories which constitute the Kerala Police Service are listed, and also the categories which constitute the Kerala Police Subordinate Service. It was stressed by counsel for the Appellant that the enumeration will show that the clerical category is not governed by the Police Manual. The scope and the amplitude of Rule 19 and the enumeration of the services will be further understood by a reference to Rule 18 which provides that the ministerial staff of the Police Department shall consist of a General State Service and State Subordinate Service. 3. Counsel for the Appellant next claimed our attention to Rules 7 and 8 of the Classification, Control and Appeal Rules, 1960, and to item 12 of Schedules I and II of the said Rules. Rule 7 merely states that the State Services shall consist of those included in Schedule I; and Rule 8 provides that the Subordinate Services shall consist of those included in Schedule II. Rule 7 merely states that the State Services shall consist of those included in Schedule I; and Rule 8 provides that the Subordinate Services shall consist of those included in Schedule II. Turning now to Schedule I and to Schedule II, item 12 of the former deals with the Kerala General Service; and item 12 of the latter, the Kerala General Subordinate Service. These Rules, namely, the Civil Services (Classification, Control and Appeal) Rules, and the State and Subordinate Services Rules, should now be deemed to have been issued under the provisions of the Public Services Act, 1968 by reason of the provisions of Section 3 of the said Act. Counsel further emphasised that even a Service Rule framed under the proviso to Article 309 of the Constitution, is to apply until provision is made in that behalf by or under an Act or by the appropriate legislature, under this Article, and any Rule so made should be made effective only subject to this State Act. 4. In the face of the above statutory provisions, counsel contended that Ext. P-1 and Ext. P-2 issued by the Government cannot override the conditions of service in regard to recruitment and promotion of Lower Division Clerks. By Ext. P-1 dated 19th January 1974 the Government announced the policy decision that future recruitment to posts in the ministerial cadre in the Police Department will be made by enlistment under the Police Act; and that existing vacancies in the posts of Lower Division Clerks and Lower Division Typists, now filled through direct recruitment by the Public Service Commission, will be filled up by direct recruitment by the Inspector-General of Police, as the posts below the rank of S.I. of Police are outside the purview of the Commission. These posts were to be designated as Havildar Clerks and Havildar Typists respectively. Ext. P-1 provided for further details as to qualification and method of appointment which need not be noticed. Ext. P-2 is only an amplification or implementation of Ext. P-1. It proceeded to record that the posts of Havildar Clerks and Havildar Typists were newly introduced in the Police Department in the place of existing posts of Lower Division Clerks and Lower Division Typists. It was provided that the Havildar Clerks and Havildar Typists would be ordinarily doing only ministerial jobs and were not expected to do field duties. P-1. It proceeded to record that the posts of Havildar Clerks and Havildar Typists were newly introduced in the Police Department in the place of existing posts of Lower Division Clerks and Lower Division Typists. It was provided that the Havildar Clerks and Havildar Typists would be ordinarily doing only ministerial jobs and were not expected to do field duties. It was further provided that they were not eligible for transfer to the General Executive or Armed Reserves and could expect their promotion only within their own cadre of the ministerial branch of the force. We called attention to this provision only to emphasise that Ext. P-2 itself affords a recognition that these posts were treated as in the ministerial branch of the force. 5. We may now examine the contention raised by the Government Pleader in respect of Exts. P-1 and P-2 and the directions issued by the Government therein. The contention taken up was that the direction issued under these impugned orders merely amounted to an executive or administrative direction creating certain new posts in the executive wing and that in respect of the posts thus newly created, no consultation with the Public Service Commission was necessary and a provision to that effect did not contravene any statutory rule. Secondly, it was contended that the Appellant was only a Lower Division Typist and he cannot make a grievance that his chances for promotion are adversely affected by reason of the executive order, as the chance of promotion was not a condition of service, as, it was stated, was laid down by the Supreme Court in Mohammed Shujat Ali and Ors. v. Union of India A.I.R. 1974 S.C. 1631, Ipara 15. 6. We are unable to appreciate or to accept the arguments advanced by the Government Pleader. We have sufficiently stressed and indicated the provisions of the statutory rules noticed earlier which, it appears to us, make it clear that the Lower Division Clerks are part of the ministerial wing and therefore within the purview of the Public Service Commission (Consultation) Regulations. We find it impossible to accept the contention of the Government Pleader that what was done by Ext. P-1 was merely the creation on the executive side, of certain new posts in respect of which statutory provision had not been made. As pointed out from the provisions of Ext. P-1 and Ext. We find it impossible to accept the contention of the Government Pleader that what was done by Ext. P-1 was merely the creation on the executive side, of certain new posts in respect of which statutory provision had not been made. As pointed out from the provisions of Ext. P-1 and Ext. P-2, there is sufficient indication in these orders, that what was done was not merely the conversion of Lower Division posts to the ministerial side of the Police Department and the re-designation of those posts, as Havildar Clerks and Havildar Typists. This seems to run directly counter to the statutory provisions that we have referred to. 7. We are also unable to countenance the argument that the Appellant has no grievance and cannot complain of the conditions of his services having been affected. This argument seems to have found favour with the learned Judge in the writ Petition. In paragraphs 3 and 4 of his judgment the learned Judge observed: "In view of the fact that Ext. P-1 order contemplates recruitment to the existing vacancies in the posts of Lower Division Clerks and Lower Division Typists and taking into consideration the assurance contained in the counter-affidavit of the first Respondent that no orders have yet been issued giving any right to the Havildar Clerks and Havildar Typists which will adversely affect the existing rights and privileges of the Lower Division Clerks and Lower Division Typists, I have not been persuaded to hold that the Petitioners are aggrieved by Ext. P-1 Order and Ext. P-2 Circular. The reliance made on Ext. P-5 Order also will not advance the Petitioners' case in so far as by that order the Government only directed conversion of the 188 posts of Lower Division Clerks and 57 posts of Lower Division Typists to that of Havildar Clerks and Havildar Typists respectively. That order does not in any way say that any of the Havildar Clerks or Havildar Typists is entitled to preferential promotion to the upper cadre." 4. In view of what is stated above, it is not necessary for me to examine the question as to whether Exts. P-1 order and P-2 circular are violative of the provisions of the Kerala Public Service Commission (Consultation) Regulation, 1957. It is also not necessary to consider as to whether by the executive order Ext. In view of what is stated above, it is not necessary for me to examine the question as to whether Exts. P-1 order and P-2 circular are violative of the provisions of the Kerala Public Service Commission (Consultation) Regulation, 1957. It is also not necessary to consider as to whether by the executive order Ext. P-1 any statutory rule is purported to have been amended or modified. The grievance of the Petitioners is that the creation of the posts of Havildar Clerks and Havildar Typists would affect their chances of promotion to the posts of Upper Division Clerks and Upper Division Typists. There is no basis for the same as stated above in view of the assurance given as abovementioned. It is for that reason that the Petitioners seek to have Ext. P-1 order and Ext. P-2 circular quashed by a writ of certiorari. Petitioners also seek, also for the same reason, that appointments in the ministerial staff of the Police Department be directed to be made only in accordance with the Statutory Service Rules. It was in view of the above considerations that the learned Judge dismissed the writ Petition. With respect, we cannot agree with the learned Judge. We have already pointed out how the impugned orders seem to be against the statutory provisions of the Rules we have already referred to. We may also refer to Ext. P-5 order of the Government dated, 4th September 1976 which directed that 188 posts of Lower Division Clerks and 57 posts of Lower Division Typists lying vacant in the Police Department be converted to that of Havildar Clerks and Havildar Typists on the revised scales of pay indicated in the order. Where any information necessary as to the scheme or course of action of the Government, Ext. P-5 clearly provides the same. 8. We are unable to find any statutory basis for Exts. P-1 and P-2. We are further unable to see how these executive orders can override the statutory conditions of service of the Appellant, as provided in the rules, which we have already explained. 9. Paragraph 4 of the Reply Affidavit of the Petitioners has stated the position in regard to the applicability of the 2:1 ratio, on the basis of which their arguments were built up. 10. 9. Paragraph 4 of the Reply Affidavit of the Petitioners has stated the position in regard to the applicability of the 2:1 ratio, on the basis of which their arguments were built up. 10. In the result, we set aside the order of the learned Judge and allow O.P. No. 1073 of 1974 in so far as the 2nd Petitioner therein (who alone is the Appellant before us) is concerned. As far as the said Appellant-Petitioner is concerned, Exts. P-1 and P-2 will stand quashed. There will be no order as to costs.