SARASAMMA v. STATE OF KERALA — 1986 DIGILAW 142 (KER)

Judgment :- 1. Petitioners challenge Ext.P2 order dated 18-6-1985 reverting them from the posts of Managers of Panchayats to Head Clerks. At the time when the Original Petition was filed on 21-6-1985 the order of reversion was not produced. It was produced along with C.M.P.No.17630 of 1985 seeking amendment of the Original Petition and impleadment of additional respondents. That application was filed on 24-6-1985 and was allowed on 26-6-1985. 2. Petitioners were appointed initially as Panchayat Assistants. They were, thereafter, promoted as Head Clerks. Qualifications and other conditions of service of personnel working in the Panchayats were governed by the Kerala Panchayats (Establishments) Rules, 1967. R.12 (2) of the above rules enables the first respondent to prescribe qualifications. Such qualifications have been prescribed by Notification dated 27-6-1969. Those rules were replaced by the Kerala Panchayats (Common Service) Rules, 1977, (hereinafter referred to as the Common Service Rules). According to R.9 of the Common Service Rules, possession of SSLC,10 years of service as regular Panchayat employee, a pass in Panchayat Test and Account Test (Lower) were necessary qualifications for appointment as Head Clerk. In G.O.Ms. 18/84/LA and SV%TD dated 24-1-1984 qualifications for the post of Panchayat Managers were prescribed. Apart from the general educational qualification and qualifying service as per the Establishment Rules, pass in Account Test (Lower) and Panchayat Executive Officer's Training or Panchayat Test were prescribed as qualifications for promotion as Managers. In Ext.P1 order dated 15-3-1984, petitioners, who had all the necessary qualifications, were promoted as Managers. Unqualified persons, though seniors, were reverted, since the Government was of the opinion that in view of the Government Letter dated 24-1-1984, persons without the prescribed qualifications could not continue as Managers. Some of the unqualified Panchayat Employees, who were reverted in consequence of Government Order dated 24-1-1984, filed Original Petitions before this court claiming exemption for a period of two years from 24-1-1984 under R.13A of the Kerala State and Subordinate Services Rules to acquire the special qualifications. Interim orders issued by this court in some of those Original Petitions occasioned an attempt to revert the petitioners. They filed O.P. No. 697,784, 661 and 878 of 1985, and avoided their reversion. The batch of Original Petitions challenging the validity of Government Order dated 24-1-1984 were disposed of by a common judgment by U.L.Bhat, J., by judgment in O.P.No.7595 of 1983 series on 12-4-1985. They filed O.P. No. 697,784, 661 and 878 of 1985, and avoided their reversion. The batch of Original Petitions challenging the validity of Government Order dated 24-1-1984 were disposed of by a common judgment by U.L.Bhat, J., by judgment in O.P.No.7595 of 1983 series on 12-4-1985. It was found that persons who had been promoted as Head Clerks prior to 1-4-1977 would be entitled to exemption from acquiring special qualifications for a period of two years from 24-1-1984 under rule 13A of the Kerala State and Subordinate Service Rules (hereinafter referred to as the General Rules), if they were otherwise qualified. Persons who were promoted as Head Clerks on or after 1-4-1984 were not to have this benefit. The court also directed that the District Panchayat Officers should examine the claims for the benefit of exemption under the General Rules before passing fresh orders of promotion/ reversion. Reversions from the post of Manager/ Head Clerk were to be ordered on grounds of absence of test qualifications only if fully qualified persons were available to be promoted to such posts. It was in consequence of that judgment that Ext. P2 order was passed on 18-6-1985. Petitioners submit that the common judgment of U.L. Bhat, J., disposing of O.P.No.7595 of 1983 series did not direct reversion of qualified Managers, who were already in position. Such reversions had to be ordered only if qualified persons were not available. Even assuming that a period of exemption was available till 23-1-1986 by virtue of R.13A of the General Rules, promotion of unqualified seniors and consequential reversion of qualified juniors were not called for. It was on these allegations that the petitioners came to this court. Subsequent events, however, disclose that the unqualified seniors were trying to oust the qualified juniors like the petitioners. Petitioners had submitted Ext.P3 representation dated 20-7-1985 before the Director of Panchayats requesting that they might not be reverted from the posts of Managers so as to enable the unqualified seniors to continue indefinitely in posts requiring test qualifications. No orders were passed on that representation. In C.M.P. No.22261 of 1985, this court passed an order on 7-8-1985, directing the second respondent to dispose of Ext.P3 representation in accordance with law within two months from the date of receipt of a copy of the order. 3. No orders were passed on that representation. In C.M.P. No.22261 of 1985, this court passed an order on 7-8-1985, directing the second respondent to dispose of Ext.P3 representation in accordance with law within two months from the date of receipt of a copy of the order. 3. Pursuant to that direction, the second respondent Director of Panchayats passed Ext.P4 order on 11-10-1985, stating that 8 Head Clerks, who had been promoted as Managers by order dated 18-6-1985 were seniors to the petitioners and were entitled for exemption in terms of the common judgment of this court in O.P.No.7595 of 1983 series dated 12-4-1985. 4. The District Panchayat Officer passed orders on 21-1-1986 reverting such of the seniors as could not acquire the special qualifications even during the period of two years of exemption. Consequently, petitioners, who are qualified juniors, were promoted as Managers. Petitioners complain that Ext. P5 could not take effect because of Ext.P6 Government Letter No.57467/H1/86/LAD (ii) dated 23-1-1986, to the effect, "reversion of non-test qualified Managers who were in service as Head Clerks prior to 1-4-1977 is hereby stayed till the disposal of the petition." The petition referred to above was the one submitted by the Kerala Panchayat Employees Union State Committee, Vadakkencherry Post, Palghat District on 17-1-1986. Government did, of course, act promptly in directing stay of proceedings for reversion on 23-1-1986 on a petition dated 17-1-1986. Petitioners submit that the Government had no power to issue a letter in the nature of Ext.P6. It is submitted that the effect of Ext.P6 order is to stay the implementation of the directions contained in the judgment of U.L. Bhat J., in O.P. No. 7595 of 1983 series. 5. Counsel submitted before me and it is not controverted that the petitioners in O.P.No. 2681 of 1984, one of the cases disposed of in the common judgment, had filed W.A.No.230 of 1985 and this court has not passed any order of stay of implementation of the judgment. Counsel submitted that the Government was trying to over-ride the effect of the judgment of this court and was practically directing stay of implementation of the judgment of this court. 6. The only power of the Government under the Kerala Panchayats Act is an appellate power under S.144 of the Act. Counsel submitted that the Government was trying to over-ride the effect of the judgment of this court and was practically directing stay of implementation of the judgment of this court. 6. The only power of the Government under the Kerala Panchayats Act is an appellate power under S.144 of the Act. Neither the Establishment Rules, nor any other set of rules, provide for an appeal or revision before the Government from an order of reversion of personnel who do not have the required qualifications. R.24 of the Kerala Civil Services (Classification, Control and Appeal) Rules provides for an appeal to the Government. If the Government was exercising its appellate power and an interim order was being issued in an appeal filed by aggrieved persons, I would have expected that the appeal was filed by such aggrieved persons and not by an association. The appellate power cannot be invoked by a person other than a person aggrieved by an order of the subordinate authority. Even assuming an appeal by an organisation on behalf of its members is competent under R.24 of the Kerala Civil Services (Classification, Control and Appeal) Rules, I would have expected an anxiety on the part of the Government to know who the parties affected were and who were the respondents who were likely to be affected by the appellate proceedings before the Government. There are no indications at all in Ext.P6 that the Government was aware of any of the relevant details at the time when that communication was sent. Even though a formal interim order is normally to be expected and none other than a letter falling short of such an order alone was issued, the fact that the Government had not adverted to the likelihood of interim orders/ communications affecting other persons is a far more serious infirmity which impairs the validity of Ext.P6 communication. Even assuming that the Government was exercising an appellate power, it is curious that Ext.P6 does not contain any reference to the provisions under which the appeal was entertained and interim orders were issued. It, therefore, seems to be fairly clear that the Government, in issuing Ext. P6 communication, did not advert to the power which was invoked by the Association of Employees or the power which the Government was exercising. An assiduous search of the provisions may perhaps help in locating some power in the Government. It, therefore, seems to be fairly clear that the Government, in issuing Ext. P6 communication, did not advert to the power which was invoked by the Association of Employees or the power which the Government was exercising. An assiduous search of the provisions may perhaps help in locating some power in the Government. Exercise of a statutory appellate power in a light-hearted manner and apparently without adverting to the relevant facts, including a judgment of this court, cannot, however, be countenanced. 7. Counsel for the petitioners seems to be justified in his submission that there is no evidence that the Government had adverted to any particular power under any statutory provision when it decided to issue Ext. P6 communication. He is also right in his assertion that the Government seems to have assumed that it is all powerful and no reference to any statutory provision is necessary to justify the exercise of the powers by the Government. It is elementary that an appeal has to be filed by an aggrieved person and he should advert to the specific statutory provisions under which he is invoking the power of appellate review. Persons who are likely to be affected by any appellate order are entitled to be heard, in the absence of specific exclusion of the principles of natural justice to such a proceeding. The appellate authority should know who such respondents are or persons who are likely to be affected, so that notice can be given to them so as to enable them to be heard in their defence at least before final orders are issued. The basic postulate of exercise of any appellate power is that the appellate/revisional authority satisfies the basic requirements of fairness in its procedure before it renders a final decision. It is also essential that somebody on behalf of the authority examines the entertainability of the petition seeking appellate review, deals with it on prima facie considerations, and passes an order which will be interim in nature in every respect. Even in cases where ex-parte interim orders are issued by competent authorities, the person who is likely to be affected has to be notified about that order, so that he is able to present the opposite point of view before the competent authority and seek to nullify or modify the interim order. Even in cases where ex-parte interim orders are issued by competent authorities, the person who is likely to be affected has to be notified about that order, so that he is able to present the opposite point of view before the competent authority and seek to nullify or modify the interim order. It is unfortunate, that the Government has chosen to entertain an application and issue interim direction without adverting to the specific power enabling it to interfere. There is considerable force in the submission urged by counsel for the petitioners that the Government was not obviously aware of the merits of the dispute or the fact that the order, the stay of which was being sought by the Panchayat Employees Association, was an order giving effect to a direction of the High Court. It is often said that the executive has no power to modify, nullify or overrule judicial orders. That will be done only by an appellate court. In the present case, what the executive Government has done is to stay the implementation of a considered judgment of this court, a judgment from which an appeal has been filed but no stay was granted. In the matter of procedural fairness, the Government seems to have blundered in issuing Ext.P6 communication without knowing who and how many are its beneficiaries or will be adversely affected. 8. The Government Pleader appearing for respondents 1 to 3 was not able to tell me the source of power for issue of Ext.P6 order or to justify the manner in which the power, assuming it exists, was exercised. The only assumption which justifies the issue of Ext.P6 order is that the State is a Leviathen, the all powerful, and nothing is beyond its competence. That is a theory which can find no acceptance in our Constitutional system. We have adopted the rule of law to the great relief and greater advantage of the multitudes who make up the biggest democracy in the world. We abandoned the rule of caprice and unascertainable whim of an individual autocrat decades ago, not to substitute it with the individual fancies of too many autocrats, some elected and some others appointed. The powers of the State, though immeasurable, are regulated by discernible standards and ascertainable criteria. We abandoned the rule of caprice and unascertainable whim of an individual autocrat decades ago, not to substitute it with the individual fancies of too many autocrats, some elected and some others appointed. The powers of the State, though immeasurable, are regulated by discernible standards and ascertainable criteria. The obligation to be fair in its dealings with the subjects and to stand or fall by standards it has fixed for its own conduct are more often reasserted as not to require a further repetition now. The procedural trammels imposed by the State in the exercise of its powers cannot be cast away in individual cases except for exceptional reasons, which must be discernible from the order itself. 9. If it is assumed that Ext. P6 was justified by the general powers of the State, notwithstanding non-compliance with the principles of natural justice, it may as well be that the final disposal of the claims of unqualified Panchayat Employees can also be made by respondents 1 to 3, without notice to the petitioners and others who are likely to be affected, even without knowing who such persons are or those who are likely to be affected. The Government Pleader appearing for the respondents frankly confessed that he is not in a position to support Ext.P6 communication. I shall also add, that unqualified seniors, on whose behalf Ext.P6 communication was obtained from Government had not chosen to defend themselves, even though notices were served on all but one of them. 10. The only course open for me, in these circumstances, is to allow the Original Petition, set aside Ext.P6 communication and restore Ext.P5 order, whereby the petitioners, who were personnel qualified in terms of the special rules, were promoted. The Original Petition is therefore allowed as above. The only way in which the cursory exercise of power by the first respondent as indicated in Ext.P6 communication can be censured is to require the first respondent to pay the costs of the petitioners including advocate's fee of Rs.500/-. I would have awarded a larger amount as exemplary costs. But, I refrain from doing so since the burden of that also is likely to fall on the public exchequer. Allowed.