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2000 DIGILAW 85 (KER)

Radhakrishnan v. Sunoj

2000-02-09

ARIJIT PASAYAT, K.S.RADHAKRISHNAN

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Judgment :- Arijit Pasayat, C.J. All these appeals involve a single point for adjudication and, therefore, are taken up together for disposal. Challenge in all these appeals relate to a common judgment passed by learned Single Judge in a batch of writ applications, namely, O.P. Nos. 3550,15115/96 and 12398/97. in all the Original Petitions, the effect of amendment brought in by the Kerala Technical Education Service (Amendment) Rules, 1989 (in short 'Amendment Rules, 1989') in relation to the appointment of Lecturers/ Post Diploma Lecturers was under consideration. Petitioners in the aforesaid applications were Diploma holders, who, inter alia, sought for a declaration that the prescription of degree qualification for promotion to the post of Lecturers as brought in by way of amendment of Kerala Technical Education Service Special Rules, 1969 (in short'Rules') is unsustainable and consequently a prayer was made for a direction to the State functionaries to promote them as Lecturers without insisting upon degree qualification. The amendment which was questioned reads as follows: In fact, it was not so much the prescription of the qualification, but the effect of Clause which was assailed. The same reads as follows: "(5) Nothing contained in the Kerala Technical Education Service (Amendment) Rules, 1989 shall apply to those in the feeder category to the above post who are already in service before the date of commencement of the said rules. But the personnel promoted, if any during the interim period (i.e., from 23.9.1984 to the date of issue of this order) shall not be adversely affected." 2. Learned Single Judge by the impugned judgment held that it was not a requirement that those in the feeder category should be in that category before commencement of the Rules, which were made operative retrospectively with effect from 23.9.1984. It was held that the requirements were complied with if they were already in service on the relevant date i.e., 23.9.1984. 3. In the Writ Appeals filed by the State, as well as those filed by the contesting respondents in the Original Petitions, the aforesaid conclusion of the learned Single Judge is challenged on the ground that the same is not in line with the purpose of amendment referred to above. It is submitted that same Hon'ble Judge had taken a contrary view in O.P.No. 2314 of 1995 which was heard along with O.P.No. 6846 of 1990 disposed of on 12.11.1996. It is submitted that same Hon'ble Judge had taken a contrary view in O.P.No. 2314 of 1995 which was heard along with O.P.No. 6846 of 1990 disposed of on 12.11.1996. Without even referring to said view, the conclusions in the impugned judgment have been arrived at. To similar effect is the stand of appellants who were not parties to the Original Petitions, but have filed appeals with leave of this Court, as their interests are likely to be affected by adjudication in the matter. Petitioners in the Original Petitions, who are contesting respondents in the present Writ Appeals, submit that the interpretation given by the learned Single Judge is a possible interpretation, and is in line with the object' for which the amendments were brought in. 4. The Kerala Technical Education Service Special Rules, 1967 (in short 'the rules') were notified and framed in exercise of the powers conferred by the proviso to Art.309 of the Constitution of India, 1950 (in short'the Constitution'). The said Rules have undergone amendments at different stages. The amendments which have sufficient bearing on the subject matter of dispute are those introduced in 1987 by the Kerala Technical Education Service (Amendment) Rules, 1987 and Amendment Rules, 1989. In 1987 Rules qualification in respect of Lecturer was introduced which reads as follows: Further amendments brought in by Amendment Rules, 1989 have been extracted by us already. The prescriptions are almost identical except to the extent that the relaxation has been made to the extent that in case of promotion from the feeder category 60% marks will not be insisted upon. 5. Learned Single Judge has, with reference to Clause (5) extracted above, observed that the intention of the provision cannot be read to mean that only persons belonging to the feeder category are covered by the requirement to be in service before the commencement of the Rules on 23.9.1984. He has further observed that had that been the intention, the language used would have been different. 6. The interpretation given by learned Single Judge would frustrate the purpose for which the amendment has been brought in. The provision conveys the intention that the insistence is on the person being in the feeder category before the date of commencement of the Rules on 23.9.1984, Otherwise, persons who are not in the feeder category have to be accommodated indefinitely and that cannot be the intention. The provision conveys the intention that the insistence is on the person being in the feeder category before the date of commencement of the Rules on 23.9.1984, Otherwise, persons who are not in the feeder category have to be accommodated indefinitely and that cannot be the intention. It may be a never-ending process. Explanatory note appended to the notification reads as follows: "According to the amendments made to the Kerala Technical Education Service Rules as per G.O.(P) 160/87 H. Edn. Dated 28.5.1987 degree with 60% marks in the final examination in the appropriate branch of Engineering or Technology has been made essential for the posts of Lecturer in Polytechnics, Instructor Grade 1 in Engineering Colleges, Workshop Superintendent in Polytechnics and Superintendents in Technical High School. The Rules have been made with retrospective effect from 23.9.1984. On the issue of the Government Order,. Service Organisations have represented that by the Government Order promotional chances of Diploma holders already in service have been completely shut out and therefore the Government Order should be revised. It has also been represented that insistance of 60% marks for even the in service hands for promotion cause undue hardship. The matter was discussed with the Organisations and it has been decided to give protection to those in the feeder categories in service on the date of issue of Government order for promotion. Also in the last Pay Revision, a separate cadre of Head of Section has been created in Polytechnics. Hence qualification and method of appointment of Head of Section have to be prescribed. This notification is intended to achieve the above object, (underlining for emphasis) Though explanatory note does not form part of the Rule, and need not be looked into when the provision is clear, it throws light if there is ambiguity. If the interpretations given by learned Single Judge are accepted, then, in effect, the implementation of the amendment to the Special Rules has to be postponed till the appointment of the last person in service, even not in the feeder category as Lecturer. That certainly cannot be an intention when the object of the amendment is taken into consideration. 7. It has to be noted that Cl. (5) deals with two categories of cases. One relates to those who are in the feeder category on the relevant date and those who are promoted during the interregnum. That certainly cannot be an intention when the object of the amendment is taken into consideration. 7. It has to be noted that Cl. (5) deals with two categories of cases. One relates to those who are in the feeder category on the relevant date and those who are promoted during the interregnum. This is clear from a reading of Clause (5) itself. If the interpretation given by the learned Single Judge is accepted, there would be a third category covered by Cl. (5). Then the categories would be: (a) those promoted during the interregnum i.e., from 23.9.1984 to the date of issue of the order (21.12.1989), (b) those who are in the feeder category before the commencement of the Rules and (c) those who are not in the feeder category, but are holding some other posts. Such a contemplation cannot be spelt out from the Rules. The concession was extended to persons in the feeder category at the relevant time and not to those who come to the feeder category after the stipulated date. The other category of persons who got the benefit related to those who were in the feeder category and got promotion during the interim period (i.e., from 23.9.84 to the date of issue of the order i.e., 19.12.1989). The amended provision gave the relaxation to those who got promotion to the feeder category. In other words, it is only those who are in the feeder category get the exemption from requisite qualification when they get promotion. It cannot certainly be the intention to cover those not in the feeder category during the interim period to get the exemption. A combined reading of the relevant provision makes this position clear. Even without the aid of the Explanatory Note this position emerges. 8. It was urged by the original applicants in the Writ Petitions that there is some confusion as to who were included in the feeder category. According to them, even if it is held that the person to be eligible to be appointed as Lecturer has to be included in the feeder category before the commencement of the Amendment Rules, 1989. Yet, in view of the factual position that being in the feeder category they are entitled to be considered. This is an aspect which was not adjudicated by the learned Single Judge. Yet, in view of the factual position that being in the feeder category they are entitled to be considered. This is an aspect which was not adjudicated by the learned Single Judge. It has to be noted that in one of the Original Petitions i.e., O.P.No. 3550/96, the specific stand was that in order to be eligible, a person has to be included in the feeder category prior to 23.9.1984. Learned Single Judge brushed aside the pleadings to that effect in the Original Petition very lightly with the observation that for the purpose of adjudication of the real issue such inappropriate pleading was irrelevant. Such observation of the learned Single Judge is also clearly untenable. Writ Appeals are allowed to the extent indicated above. Since the Writ Appeals have been disposed of on the question as to whether the learned Single Judge was justified in his interpretation of the relevant clause, the factual aspects which were not adjudicated shall not be treated as final. It is open to the affected parties to satisfy the concerned authorities that they factually come within the purview of feeder category, about which we have not expressed any opinion.