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1996 DIGILAW 129 (KER)

Vijayakumaran Pillai v. Thankappan

1996-03-06

K.T.THOMAS, S.SANKARASUBBAN

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Judgment :- Sankarasubban, J. All these Writ Appeals arise from a common judgment. Original Petitions from which the Writ Appeals are filed are O. P. No. 5636/88, O. P. No. 8546/88, O. P. No. 4578/90 and 10 P. No. 5838/88. In all the above Original Petitions excepting O. P. No. 5638/88, the reliefs were the same. In O. P. No. 5838 of 1988 a different relief was claimed. Writ Appeals filed against O. P. No. 5838/88, W. A. Nos. 967/92,1175/92 and 1433/92, are considered separately. 2. The issue in question is with regard to the appointment of Municipal Commissioners Grade III. The appointment of Municipal Commissioner Grade III is governed by (he Kerala Municipal Commissioners (Recruitment and Conditions of service) Rules, 1964 (hereinafter referred to as 'the rules'). These Rules were amended by G.O. (MS) No. 77/82/LA & SWD dt. 23.4.1982 with effect from 22.6.1982. The challenge is against the Rules as they are amended. 3. As already submitted, the Rules deal with the appointment of Municipal Commissioners. Under R.3 of the Rules, three categories' of Municipal Commissioners are constituted, they are Municipal Commissioners Grade I, Municipal Commissioners Grade II and Municipal Commissioners Grade III. R.4 of the Rules deals with method of appointment. For Municipal Commissioner Grade II the appointment is by promotion from Municipal Commissioner Grade III, while for Municipal Commissioner Grade I, it is by promotion from Municipal Commissioner Grade II. So far as Municipal Commissioners Grade III are concerned, prior to the amendment in 1982, there were two methods of recruitment; one was by direct recruitment and the other was recruitment by transfer. The direct recruitment was from the categories mentioned in Clause (a) (i) to (iii), cl. (b) & cl. (c). Clause (c) related to open market. Second method was recruitment by transfer from among persons who have served for a particular period as Superintendent/ Upper Division Clerk in the Department of Municipalities. R.7 of the Rules deals with reservation of appointment. R.7 prior to the amendment stated that Rules 14 to 17 of the Kerala State and Subordinate Services Rules relating to reservation of appointments shall apply to appointment by direct recruitment of Municipal Commissioners Grade III. Thus, prior to the amendment in 1982 the principles of reservation applied for direct recruitment for appointment to the posts of Municipal Commissioners Grade III. 4. Thus, prior to the amendment in 1982 the principles of reservation applied for direct recruitment for appointment to the posts of Municipal Commissioners Grade III. 4. As already stated, the Rules were amended in 1982 with regard to the method of appointment. While the method remained the same for Municipal Commissioners Grade I and Municipal Commissioners Grade II, there was substantial amendment with regard to the method of appointment to the post of Municipal Commissioner Grade III. Under the Amended Rules, only direct recruitment was envisaged for appointment as Municipal Commissioner Grade III. Direct recruitment was to be from three sources; (1) for a open market, (2) from among persons in Municipal Common Service and of a particular description, and (3) from among persons working in the Department of Municipalities of a particular description. So far as reservation is concerned, R.7 of the Rules are amended. R.7 of the Rules stated thus: "Reservation of appointment:- Rules 14 to 17 of the Kerala State and Subordinate Services Rules relating to reservation of appointments shall apply to the first method of appointment of Municipal Commissioner III Grade, specified in R.4". 5. After the Rules were amended, Kerala Public Service Commission issued notification dt.10th May, 1985 inviting applications for appointment to the posts of Municipal Commissioners Grade III. The total number of posts were 14 out of which, 4 posts were to be filled up on the basis of the Rules that existed before 22.6.198 2. Thus, in the notification dt.10,5.1985 it was stated that out of 14 vacancies, 6 posts were to be filled up from open market, 4 on the basis of the Rules as it stood before 22.6.1982 by direct recruitment from the feeder category and by transfer' and 4 posts were to be filled up by direct recruitment from the Municipal Common Service (3) and Municipal Department (1). It is not disputed that with regard to the posts that arose before the amendment, viz., 22.6.1982, the principles of reservation applied to all the posts which were to be filled up by direct recruitment. It is not disputed that with regard to the posts that arose before the amendment, viz., 22.6.1982, the principles of reservation applied to all the posts which were to be filled up by direct recruitment. The attack in all the Original Petitions excepting O. P. No. 5838/88 is that in the rank list prepared by the Kerala Public Service Commission the principles of reservation are applied only for direct recruitment by open market and it is not made applicable to direct recruitment from the persons in Municipal Common Service and from the Municipal Department. According to the petitioners, the amendment is violative of Arts.309 and 335 of the Constitution of India. It is further stated that the, amendment in so far as it takes away the reservation is arbitrary and discriminatory. Persons who are contesting from the open market alone are given the benefit of reservation. The post of Municipal Commissioner Grade III is selection post for which qualification and eligibility alone are the criteria. In such circumstances, depriving a group of persons alone the benefit of reservation which is given to all other is arbitrary and discriminatory. Petitioners have prayed for a declaration to declare the amended Rules as ultra vires the Constitution of India and for a direction to give the benefit of reservation to the petitioners. 6. Kerala Public Service commission and the State have filed counter affidavits. According to Kerala Public Service Commission, the principles of reservation had been made applicable to the posts which arose before 22.6.1982 and for the vacancies which arose subsequent to 22.6.1982, reservation has been made applicable only to direct recruitment from open market, since according to R.7 of the Rules, the principles of reservation is applicable only to direct recruitment from open market. In the counter affidavit filed by the State, it is stated that there is no right to demand that the principles of reservation should be made applicable in all cases. Amended rules are issued in exercise of the power under Sections 19 and 344 of the Kerala Municipalities Act, 1960 and S.2 of the Kerala Public Service Act 1968. It is not obligatory on the part of the State to make reservation of appointment in favour of any backward classes. Amended rules are issued in exercise of the power under Sections 19 and 344 of the Kerala Municipalities Act, 1960 and S.2 of the Kerala Public Service Act 1968. It is not obligatory on the part of the State to make reservation of appointment in favour of any backward classes. All that Art.335 of the Constitution directs is that the claims of the members of the Scheduled Castes and Scheduled Tribes shall be taken into consideration consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State. There is no discrimination in so far as the petitioner belongs to a different category with regard to the appointment. 7. Learned single judge heard the Original Petitions together and by a common judgment directed that the principles of reservation under Rules 14 to 17 of the Kerala State and Subordinate Services Rules should not be confined to direct recruitment from open market, but that it should be made applicable to direct recruitment from the persons in Municipal Common Service and from the Department of Municipalities. Learned single judge read R.7 of the Rules as amended as to take in all the three methods of appointment included in the direct recruitment for Municipal Commissioners Grade III. According to the learned single judge, there is only one method of recruitment for Municipal Commissioners Grade III and that is direct recruitment and hence for all the posts which are to be filled up by direct recruitment, the principles of reservation should be applied. 8. Learned counsel for the appellants argued that the interpretation given by the learned single judge is not correct, while the learned counsel for the petitioners in the Original Petition supported the judgment of the learned Single Judge. After hearing the arguments of both sides, we are of the view that the interpretation given by the learned single judge js not correct. As already stated, after the amendment of the Rules, appointments to the post of Municipal Commissioner Grade HI are to be made by direct recruitment only. Under Rule 4 of the Rules, direct recruitment is to be made (1) from open market (2) from among persons on duty in Municipal Common Service, and (3) from among persons in the Department of Municipalities. Under Rule 4 of the Rules, direct recruitment is to be made (1) from open market (2) from among persons on duty in Municipal Common Service, and (3) from among persons in the Department of Municipalities. Rule 7 of the Rules states that Rules 14 to 17 of the Kerala State and Subordinate Services Rules relating to reservation of appointments shall apply to the first method of appointment of Municipal Commissioner III Grade, specified in R.4. Obviously, the first method of appointment under the direct recruitment is from open market. If the entire rules are read, it will be clear that R.7 of the Rules is confined only to direct recruitment from open market. R.6(1) of the Rules prescribes the qualifications for appointment to the post of Municipal Commissioner Grade III. It says mat no person shall be eligible for appointment as Municipal Commissioner, Grade III by the first method of appointment specified in R.4 if he has not completed 20 years of age or has completed 35 years of age on the first day of January of the year. It obviously refers to direct recruitment from open market. Clause (2) of R.6 of the Rules also throws light on this. Clause (2) says that for persons to he appointed by the second and third methods, the maximum age is 45. R.6(b) of the Rules deals with other qualifications. Separate qualifications arc given for direct recruitment from open market and direct recruitment from Municipal Common Service and Department of Municipalities. R.8(1) says that every person recruited as Municipal Commissioner III Grade, by the first method of appointment specified in sub-rule (1) of R.4, shall be on training for a period of three months. There also the expression "first method of appointment" obviously refers to persons appointed from open market. With regard to persons recruited as Municipal Commissioners Grade III by the second and third method of appointment, the training period is only one month. Thus, the expression "first method of appointment" used in R.7 of the Rules refers to persons appointed from open market and not for all the persons who are directly recruited. Thus, we hold that R.7 of the Rules only applies to the appointments of Municipal Commissioners Grade III, who are directly recruited from open market. 9. Thus, the expression "first method of appointment" used in R.7 of the Rules refers to persons appointed from open market and not for all the persons who are directly recruited. Thus, we hold that R.7 of the Rules only applies to the appointments of Municipal Commissioners Grade III, who are directly recruited from open market. 9. Some of the petitioners in the Original Petitions then contended that in the Original Petitions they have challenged the validity of Rule 7 of the amended rules and the learned single judge has not considered this aspect, because petitioners were given the reliefs by extending the benefit of R.7. It was contended that since all the persons were appointed by direct recruitment, the principles of reservation should have been made applicable to the entire posts which are filled up by direct recruitment, irrespective of the methods of appointment stated in the Rules. We are afraid that the petitioners cannot succeed in their contentions. As already stated, the clear intention under Rule 7 of the Rules is' to restrict the principles of reservation only to persons who are directly recruited from open market. Art.16(4) of the Constitution does not confer any right on the petitioners to insist on reservation. Art.16(4) of the Constitution is an enabling provision and confers discretionary power on the State to make reservation for appointments in. favour of backward classes of citizens, who in its opinion, are not adequately represented in the services under the State. Under Art. 335 of the Constitution, the claim of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State. Thus, it was held in Indra v. Union of India (1992) Supp. (3) 217) that the condition of maintenance of 'efficiency of the administration' has to be respected not only while considering the claims of the S. C. and S. T. but also the claims of other backward classes and weaker sections, who come under Art.16(4). Thus, petitioners cannot insist as of right that the principles of reservation should be applied for appointments to direct recruitment for Municipal Common Service and Municipalities. Thus, petitioners cannot insist as of right that the principles of reservation should be applied for appointments to direct recruitment for Municipal Common Service and Municipalities. The Rules itself show mat persons who are appointed by the three methods belong to different classes, different qualifications are prescribed and different age limits are prescribed. Thus, it cannot be said that persons who are appointed by direct recruitment from open market and persons who are appointed by direct recruitment from the Municipal Common Service and the Department of Municipalities belong to the same class. In para. 7 of the counter affidavit filed by the State, it is stated thus: "The first method is direct recruitment from open market to 50%- of the vacancies. The rules of reservation as contained in 14 to 17 of K. S. S. R. are applicable to the said 50%. The persons who seek appointment under the other two methods of appointments arc persons for already enjoyed the benefit of reservation at the lime of their initial entry to the Municipal Common Service/ Municipal Department. Considering all these aspects the Government decided that it will not be consistent with the efficiency of administration to provide for reservation in respect of the second and third methods of appointment to the category of Municipal Commissioner Grade III and accordingly amended the recruitment rules by Ext. P3". Hence, the contention of the petitioners that Rule 7 of the amended Rules is discriminatory cannot be accepted. 10. In O. P. No. 5838/88, petitioner contended mat he was entitled to one of the vacancies which arose before 22.6.1982 and if the principles of reservation had been made applicable to such posts, he could have got higher rank. In the counter affidavit filed by the Kerala Public Service Commission in the above Original Petition, itis stated that R.7 of the pre amended Rules was followed with regard to the recruitment from the feeder category for vacancies which arose before 22.6.1982. In para. 10 of the counter affidavit, it is stated that petitioner's rank was 10. Two candidates were advised from this category following strictly the rules of reservation and rotation. Hence, it cannot be said that the principles of reservation were not applied for the posts which arose before 22.6.1982. 11. In para. 10 of the counter affidavit, it is stated that petitioner's rank was 10. Two candidates were advised from this category following strictly the rules of reservation and rotation. Hence, it cannot be said that the principles of reservation were not applied for the posts which arose before 22.6.1982. 11. A memorandum of cross objections has been filed in W. A. No. 967 of 1992 by the petitioner in O. P. No. 5838 of 1988. Since there is no dispute that the principles of reservation have been applied to the vacancies which arose on 22.6.1992, there is no necessity for making any orders. Kerala Public Service Commission has admitted that a list has been prepared in accordance with the pre-amended Rule with regard to three vacancies that arose prior to 22.6.1982. Hence no further orders are necessary. 12. In the result, it is declared that the principles of reservation in R.7 of the Rules are applicable to only direct recruitment from open market for posts which arose on and subsequent to 22.6.1982. For the posts which arose before 22.6.1982 and which are to be filled up by direct recruitment, principles of reservation as per the unamended rules are to be applied. Writ Appeals are disposed of accordingly.