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1992 DIGILAW 429 (KER)

State of Kerala v. Appunni

1992-11-09

NARAYANA KURUP, VARGHESE KALLIATH

body1992
Judgment :- Narayana Kurup, J. This appeal is preferred by respondents 1 to 3 (State of Kerala and others) against the judgment of the learned Single Judge in O.P.No.10263 of 1991. 2. The Writ Petition was filed for the issuance of a writ of certiorari to quash Ext.P3 order. The learned Single Judge, by judgment dated 15-1-1992 allowed the Writ Petition quashing Ext.P3 and directing the appellants, respondents 1 to 3 in the Original Petition to post the petitioner back as Special Officer of Perintalmanna Municipality forthwith. 3. The facts of the case are as follows: The first respondent, petition in the Original Petition, was working as Special Grade Executive Officer in Perintalmanna Panchayat. When Perinthalmanna Panchayat was upgraded as Perinthalmanna Municipality by way of Ext.P1 proceedings of the Government dated 29-3-1990, he was appointed as Special Officer of that Municipality under S.412 of the Kerala Municipalities Act. Ext.P1 order says that sanction has been accorded for the creation of 13 posts of Special Officers on Rs. 1450-2825 in the 13 Municipalities mentioned therein with effect from 1-4-1990. While the first respondent was holding the post of Special Officer pursuant to Ext.P1 order, Government issued Ext.P3 order dated 30-9-1991 reverting the first respondent to the Panchayat Department as Executive Officer and the second respondent, a Special Grade Executive Officer of Panchayat who is junior to the first respondent in the cadre was posted as Special Officer of Perinthalmanna Municipality. Ext.P3 order was under challenge in O.P.No.10263 of 1991 at the instance of the first respondent. The learned Single Judge, by judgment dated 15-1-1992, allowed the Writ Petition quashing Ext.P3 and directing the appellant "to post the first respondent back as Special Officer of Perinthalmanna Municipality forthwith" at any rate "within a week from today". 4. Aggrieved by the judgment of the learned Single Judge in O.P.No.10263/91, this Writ Appeal is filed by the State. 5. The learned Addl. 4. Aggrieved by the judgment of the learned Single Judge in O.P.No.10263/91, this Writ Appeal is filed by the State. 5. The learned Addl. Advocate General appearing for the State wanted to justify the impugned order Ext.P3 contending inter-alia that the first respondent/ petitioner has no legal right to claim the post of Special Officer of the Municipality, he being an Executive Officer of the Panchayat Department which is not a feeder category for promotion to the post of Special Officer and that, at any rate, he has not suffered any prejudice or legal injury entitling him to invoke the extra-ordinary jurisdiction vested in this court under Art.226 of the Constitution of India. It was also contended that though the petitioner/ first respondent is senior to the second respondent in the cadre of Executive Officers in the Panchayat Department (first respondent's rank No. is 526 and second respondent's rank is 714), that by itself will not confer any right on the first respondent for appointment to the post of Special Officer of the Perinthalmanna Municipality. It was also contended that in the matter of appointment of Special Officers, no norms have to be followed and that the appointments are made based on "exigencies of service." 6. It was also contended that in the matter of appointment of Special Officers, no norms have to be followed and that the appointments are made based on "exigencies of service." 6. In reply to the above submissions, it was contended by the learned counsel appearing for the first respondent that in the appointment of the second respondent as Special Officer of Perinthalmanna Municipality, the appellants have not followed any principle or norms leave alone seniority (admittedly the first respondent is senior to the second respondent in the cadre of Panchayat Executive Officers), that reversion of the first respondent from the post of Special Officer of the Municipality to the post of Executive Officer is without any valid reason and that the same is vitiated by malafides in as much as "the brother of the second respondent is in the personal staff of the Minister concerned" and "this is the reason why the second respondent has been given an out of the way promotion." It was also contended that the reversion of the first respondent has visited him with severe civil consequences by way of reduction of emoluments in the reverted post in as much as he was drawing a sum of Rs.2725/- as Special Officer in the pay scale and his pay scale as Special Grade Executive Officer would be reduced to Rs.2555/- vide affidavit of the first respondent in C.M.P.No. 8227/92. 7. Having heard the learned Addl. Advocate General and the learned counsel appearing for the first respondent, we are of the opinion that there is no merit in this appeal and the same has only to be dismissed. 8. Admittedly, the first respondent is senior to the second respondent in the cadre of Executive Officers in the Panchayat Department. There is no dispute regarding the creation of 13 posts of Special Officers as per Ext.P1 G.O. dated 29-3-1990 on Rs. 1450-2825 and that the first respondent was appointed as a Special Officer of Perinthalmanna Municipality (see item 13 of Ext.Pl) and that pursuant to Ext.P3 G.O. dated 30-9-91, he was reverted to Panchayat Department as Executive Officer and the second respondent, Special Grade Executive Officer, Nenmanikkara Panchayat, Ernakulam District (on leave), provisionally appointed as Special Officer, Perintalmanna Municipality. 9. On the above facts, the question arises for consideration is whether the reversion of the first respondent is legally justified. 9. On the above facts, the question arises for consideration is whether the reversion of the first respondent is legally justified. Admittedly, the post of Special Officer is one carrying higher emoluments and status than that of the Executive Officer of the Panchayat and hence reversion of the first respondent from the post of Special Officer in the Municipality to Executive Officer has certainly visited him with civil consequences. By Ext.P3, the first respondent has been reverted and repatriated to the Panchayat Department while inducting his junior (second respondent) as Special Officer on a higher pay scale. In this connection, it may be noted that the first respondent has been holding the post from 29-3-1990, the date of Ext. P1 to 30-9-1991, the date of Ext.P3. The cancellation of appointment of the first respondent (though ad hoc) as Special Officer without assigning any reason while his junior was inducted in his place as Special Officer is arbitrary' and discriminatory thereby violating Arts.14 and 16 of the Constitution of India. It is settled law that creation and filling up of posts with attractive emoluments without considering the claims of those eligible aspirants is plainly discriminatory and in breach of the mandate of the equality of opportunity in the matter of public employment. Here, the situation is worse. As already stated, the first respondent was holding the post of Special Officer for a fairly long period and he has been unceremoniously repatriated and reverted as Executive Officer without assigning any reason solely to accommodate the second respondent who is admittedly junior to the first respondent. This fact taken along with the allegation of malafides levelled in para.6 supra brings the appointment of the second respondent under cloud. The action of the appellants smacks of arbitrariness. In this connection, it is pertinent to note that there is nothing in Ext.P1 to indicate that the Government was to recall the first respondent from the post of Special Officer until the "Council has been constituted of the Chairman until a Chairman has been elected by the Council and of the Commissioner until a Commissioner has been appointed, as the case may be". Vide S.412(3) of the Kerala Municipalities Act. Vide S.412(3) of the Kerala Municipalities Act. The tone and tenor of S.412 of the Act suggests that a Special Officer once appointed shall be entitled to continue in the post till the constitution of a new council unless there are valid reasons to terminate the appointment before the completion of the period. The first respondent has a legitimate expectation to continue in the post of Special Officer for the full period contemplated in the section and in the absence of proved exigencies of service for recalling the first respondent being shown to the satisfaction of the court or reflected in Ext.P3 or discernible from the files produced, it has to be held that the reversion of the first respondent is manifestly arbitrary and unsustainable. To our surprise we have seen from the file a proposal to Government emanating from the Director of Municipal Administration (No.B2-21759/91 dt.16-8-1991) to revert the first respondent to the Panchayat Department as Executive Officer and to provisionally appoint the second respondent a Special Grade Executive Officer,Pcrinthalmanna Municipality. We fail to understand how such a proposal can be made by the Director of Municipal Administration touching on an official working in the Panchayat Department. 10. It is settled law that in the matter of distribution of largesse including jobs, contracts, licences, quotas, etc. the discretion of the Government has been held to be not unlimited in that the Government cannot give or withhold largesse in its arbitrary discretion or at its sweet will. In this connection, it may be useful to refer to the observations made by the Supreme Court in Ramana v. The International Transport Authority of India reported in AIR 1979 SC 1628 para 11 wherein it has been observed as follows: "To-day the Government, in a welfare State is the regulator and dispenser of special services and provider of a large number of benefits, including jobs, contracts, licences, quotas, mineral rights etc.... Then again, thousands of people are employed in the State and the Central Government and local authorities.... The discretion of the Government has been held to be not unlimited in that the Government cannot give or withhold largess in its arbitrary discretion or at its sweet will. Then again, thousands of people are employed in the State and the Central Government and local authorities.... The discretion of the Government has been held to be not unlimited in that the Government cannot give or withhold largess in its arbitrary discretion or at its sweet will. It is insisted, as pointed out by Professor Reich in an especially stimulating article on "The New Property" in 73 Yale Law Journal 733, "that Government action be based on standards that are not arbitrary or unauthorised". The Government cannot be permitted to say that it will give jobs or enter into contracts or issue quotas or licences only in favour of those having grey hair or belonging to a particular political party or professing a particular religious faith. The Government is still the Government when it acts in the matter of granting largess and it cannot act arbitrarily. It does not stand in the same position as a private individual." 11. Ramana as trend setter of modern judicial activism has been followed and relied on by the Supreme Court in a large number of decisions including M/s. KasturiLal v. State of J.& K. (AIR 1980 SC 1992) wherein it was held that: "Where the Government is dealing with the public, whether by way of giving jobs or entering into contracts or granting other forms of largess, the Government cannot act arbitrarily at its sweet will and, like a private individual, deal with any person it pleases, but its action must be in conformity with some standard or norm which is not arbitrary, irrational or irrelevant". 12. The conclusion therefore is irresistible. Ext.P3 order of reversion is not legally sustainable, as it is not supported by any valid reason, which can stand the scrutiny of law in the light of the principles mentioned above. 13. In the counter-affidavit filed by the first respondent, an attempt has been made that the "petitioner has also not so far been selected by the Public Service Commission for recruitment to the post of Municipal Commissioner Grade III. Hence the petitioner (first respondent) has no claim for appointment to the post of Municipal Commissioner Grade 111 also". 13. In the counter-affidavit filed by the first respondent, an attempt has been made that the "petitioner has also not so far been selected by the Public Service Commission for recruitment to the post of Municipal Commissioner Grade III. Hence the petitioner (first respondent) has no claim for appointment to the post of Municipal Commissioner Grade 111 also". - Vide paragraph 6 of the counter-affidavit of the first respondent, meaning thereby that being not a Municipal Commissioner, he has no right to be considered for the post of Special Officer of the Perintalmanna Municipality as the persons appointed by Exl.P1 as Special Officers are all Municipal Commissioners bearing Sl. Nos.1 to 13. Such a contention also is not legally tenable in as much as the second respondent who has been appointed as Special Officer of the Municipality in the place of the first respondent also does not hold the post of Municipal Commissioner, he being only a Special Grade Executive Officer (on leave). Moreover, the question "which matters is not whether the claimant has some legal right but whether legal power is being exercised over him to his disadvantage. It is not a matter of property or of vested interest, but simply of the exercise of Governmental power in a manner which is fair and considerate". Wade Administrative Law, Vth Edition - page 465. In the light of the above discussions, we see no merit in this appeal. The appeal is only to be dismissed. We do so. The judgment of the learned Single Judge is confirmed.