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2001 DIGILAW 762 (KER)

State Of Kerala v. V. Manmadhan Nair

2001-12-21

K.BALAKRISHNAN NAIR, K.S.RADHAKRISHNAN

body2001
Judgment :- Radhakrishnan, J. 1. The question that has come up for consideration in these cases is whether the post Director of Archaeology which fell vacant on 1-12-1998 be filled up on the basis of the Special Rules issued as per G.O.(P) No . 66/80/H.Edn. dated 9-5-1980 or on the basis of the Special Rules for the kerala Archeological Service issued by notification G.O.(P) No.3/2000/CAD dated 3-1-2000 which was published in theGazette dated 10-1-2000. 2. The post of the Director of Archaeology , Epigraphist, Regestering Officer etc. were the category of posts in the Department of Archaeology Governed by the special rules dated 9-5-80. Rule 2 prescribed the method of appointment to the post of Director of Archaeology, i.e by promotion from the categories of Epigraphist/ Regestering officer in the Department of Archaeology. It was ordered that appointment by promotion/transfer should be made from a select list prepared from among eligible officers on the basis of merit and ability, seniority being considered only where merit and ability are approximately equal. Persons included in the select list would be ranked in the order of their seniority . Post of Epigraphist is filled up by transfer from the post of Epigraphy Assistant in the department of Archaeology. In the absence of qualified persons, promotion by transfer be made from any other category in the Department of Archaeology. In the absence of qualified persons in the above categories direct recruitment could be made to the post of Epigraphist. 3. The Department Promotion committee prepared a select list of officers for appointment by transfer to the category of Epigraphist. Select list as approved by the Government by notification 4346/B1/89/GAD dated 25-6-92 which was published in the Kerala Gazette dated 4th August 1992. Select list reads as follows. 1.Smt. P.S. Radha Devi 16-11-1978 2.Sri. V.Gangadharan Nair 15-12-1978 3.Sri.V.Manmadhan Nair 13-12-1980 4.Sri.G.Ramachandran 2-2-1984 on the basis of the special rules dated 9-5-1980 Smt.P.S. Radha Devi, Serial no.1 in the above mentioned list was promoted as director. She subsequently a vacancy arose on1-121998. Going by the special Rules the government should have promoted Gangadharan Nair followed by the writ petitioner. Instead the Government put the second responent M.velayudhan Nair in charge of the director as per G.O (MS) 57/98/GAD dated 28-11-1918. Second respondent was not in the feeder category for appointment as Director. She subsequently a vacancy arose on1-121998. Going by the special Rules the government should have promoted Gangadharan Nair followed by the writ petitioner. Instead the Government put the second responent M.velayudhan Nair in charge of the director as per G.O (MS) 57/98/GAD dated 28-11-1918. Second respondent was not in the feeder category for appointment as Director. Gangadharan Nair who was senior to the writ petitioner did not put forward his claim at that time and subsequently retired from service on superannuation on 30-9-1999. Petitioner who was the senior most Epigraphist in the Department should have been promoted to the post of director of Archaeology as per Special rules. Petitioner therefore submitted representation dated 1-10-99 seeking promotion to the post of Director of Archaeology which fell vacant from 1-10-98 onwards. But no steps have been taken to appoint the petitioner. 3. petitioner then approached this Court and filed the present writ of mandamus to promote his to the post of Director of Archaeology with effect from 1-10 -1999 and for other consequential benefits. A direction was also sought for not to regularize the service of the 2nd respondent in the post of Director on the basis of Exts.P2 and P7. Petitioner contended that was per Special Rule he is the only person in the feeder category for promotion to the post of Director of Archaeology. While the original petition was pending first respondent issued revised special rules for various posts in the department of Archeology called the Special Rules for Kerala Archaeological service, 2001. The Special Rules came into force on 10-1-2001. Several categories of posts were included in the said Rules. Category 1 is the post of Director of Archaeology. Category 2 is the Conversation Officer. Category 3 is Superintending Archaeologist and category 4 is Epigraphist. Method of appointment to the post of Director is as follows: 1. Director (i) By promotion from qualified candidates under categories 2, 3 and 4. Note: Promotion shall be made on the basis of the length of continuous service in the respective feeder categories. (ii) In the absence of qualified candidates under item (i) above by direct reruitment. 2. Conservation officer (i) By promotion from the category 5 Archaeological Chemist. (ii) In the absence of qualified candidates under item (i) above, by direct reruitment 3. Superintending Archaeologist (i) By promotion from qualified hands under category 6 Publication Officer. (ii) In the absence of qualified candidates under item (i) above by direct reruitment. 2. Conservation officer (i) By promotion from the category 5 Archaeological Chemist. (ii) In the absence of qualified candidates under item (i) above, by direct reruitment 3. Superintending Archaeologist (i) By promotion from qualified hands under category 6 Publication Officer. (ii) In the absence of qualified candidates under item (i) above, by direct recruitment 4. Epigraphist (i) By promotion from category 6 publication officer. (ii) In the absence of qualified hands under item (i) above, by direct recruitment. It was stated that Special Rules would come into force at once. Subsequently Government issued another notification No.G.O.(P) 4/2000/GAD dated 20-1-2000 which reads as follows: NOTIFICATION S.R.O. No. 81/2000 - in the Notification read above, following note (i) and (ii) are inserted under rule IV, Method of Appointment. Note:- (i) All appointment made in the Department before the date of Commencement of these rules shall stand regularised from the dates on which such appointments and promotions were made and further promotions and appointments shall be made only in accordance with the provisions contained in these rules. (ii) Nothing mentioned in Note (i) above shall apply in respect of appointments made through employment exchange. The notification read above stands modified to the above extent." Petitioner submits on the basis of the above mentioned Special Rules dated 3-1-2000 as well as the notification dated 20-1-2000 the respondents are trying to regularise the service of the second respondent in the post of Director of Archaelogy. Learned counsel appearing for the writ petitioner Sri. K.R.B. Kaimal submitted respondents have no legal right to regularise the service of the second respondent or to allow him to continue in the post of Director of Archaeology. Counsel submitted at the time of occurrence of vacancy writ petitioner was the only qualified person in the feeder category to be promoted on the basis of Special Rules dated 9-5-1980. Counsel submitted mere fact that the post of Conservation officer was subsequently included in the feeder category on the basis of Special Rules 2000 would not confer any legal right on the second respondent to continue in the post of Director of Archaeology. 5. Learned Government Pleader as well as counsel appearing for the contesting respondents submitted that apart from the post of Epigraphist there were other categories of posts in the Department of Archaeology. 5. Learned Government Pleader as well as counsel appearing for the contesting respondents submitted that apart from the post of Epigraphist there were other categories of posts in the Department of Archaeology. Those gazetted post were created subsequent to the coming into force of 1980 Special Rules and consequently they were included in the feeder category for promotion to the post of Director of Archaeology. Reference was made to the post of conservation officer, superintending Archaeologist etc. Some of those posts carry higher scale of pay than that of the Epigraphist. Considering all those factors Government framed Special Rules in the year 2000 including those posts also in the feeder category for promotion to the post of Director or Archaeology. It was pointed out second respondent was the senior most technical officer in the department and consequently put in charge of the Director of Archaeology. Further it was stated that DPC would meet on the basis of the Special Rules 2000 and take further steps for regular appointment. 6. Learned single Judge upheld the claim of the writ petitioner. Counsel for the writ petitioner submitted there is no reason to upset the said finding. Learned Government pleader as well as counsel appearing for the respondent who is also the appellant in W.A.693/01 submitted there is justifiable grounds for not filling up of the vacancy in the year 1999 on the basis of the Special Rules then in force. When the matter came up for hearing we directed the Additional Advocate General to make available the files so as to ascertain whether Government had taken a conscious decision not to fill up the vacancy on the basis of the then existing Special Rules since there was an attempt to make amendment in the Special Rules. Accordingly files were made available. We have perused the files. We could not come across any conscious decision taken by the Government not to fill up the existing vacancy on the basis of the then existing Special Rules. 7. The Supreme Court in Y.V. Rangaiah v. J. Sreenivasa, (1983) 3 SCC 284 has held that the vacancies which were in existence when the Special Rules were in force be filled up by those rules and not by the Amended Special Rules. 7. The Supreme Court in Y.V. Rangaiah v. J. Sreenivasa, (1983) 3 SCC 284 has held that the vacancies which were in existence when the Special Rules were in force be filled up by those rules and not by the Amended Special Rules. It was held the mere fact that Rules came to be amended subsequently does not empower the Government not to consider the persons who were eligible prior to the date of amendment. The above mentioned ratio was subsequently applied by the Apex Court in P. Ganeshwar Rao V. State of A.P. 1988 Supp. SCC 740, P.Mahendran V. State of Karnataka, (1990) 1 SCC 411, A.A. Calton V. Director of Education, (1983) 3 SCC 33, N.T. Devin Katti V. Karnataka Public Service Commission, (1990) 3 SCC 157, Ramesh Kumar Choudha V. State of M.P. (1996) 11 SCC 242 etc. We are of the view the existing vacancies were required to be filled up as per the law on the date of occurrence of vacancy unless the Government takes a conscious decision not to fill up the existing vacancy pending amendment of the Rules. 8. The question to be decided in this case is whether the Government had taken a conscious decision bona fide for appropriate reasons. Government should also make available the materials to show that they had taken conscious decision not to fill up the vacancies on the basis of then existing Special Rules and they have taken steps to amend the Special Rules and the process is on. Apex Court in Dr. K. Ramulu V. Dr. S.Suryaprakash Rao, (1997) 3 SCC 59 was dealing with the case of promotion to the post of Assistant Director in accordance with Andhra Pradesh Animal Husbandry Service Special Rules, 1977. In that case the Government had taken a decision in the year 1988 to amend the A.P. Animal Husbandry Service Rules, 1977 and had taken a conscious decision not to fill up any vacancies till the amendment is made. In the year 1990 a one-man commission appointed to examine the anomalies in the 1977 Rules submitted its report which was duly considered by the Government and ultimately the Government framed the A.P. Animal Husbandry Service Rules, 1996 repealing the 1977 Rules with effect from 12-6-1996. In the year 1990 a one-man commission appointed to examine the anomalies in the 1977 Rules submitted its report which was duly considered by the Government and ultimately the Government framed the A.P. Animal Husbandry Service Rules, 1996 repealing the 1977 Rules with effect from 12-6-1996. In view of those reasons Government had not prepared any panel for promotion to the post of Assistant Director for the years 1995-96 in accordance with the 1977 Rules. Challenge was made with regard to the question of applicability of the Special Rules of 1977. Andhra Pradesh Administrative Tribunal directed the Government to prepare and operate a panel on the basis of 1977 Rules. Allowing the appeal filed by the State and certain affected parties the Apex Court held that the respondent therein did not acquire any vested right for being considered for promotion in accordance with the repealed rules in view of the policy decision taken by the Government which the court found justifiable on the material available from the records placed before the court. 9. We have in this case called for the files. Additional Advocate General placed before us two files relating to GO (MS) No.57/98/GAD dated 28-11-1998 as well as G.O. (MS) No.1/57/98/GAD dated 1-1-2001. We could not come across any conscious decision taken by the Government not to fill up the vacancy of Director of Archaeology pending finalisation of fresh Special Rules. We are of the view the rights of the persons like writ petitioners are governed by the Special Rules which were in force on the date of occurrence of vacancy. The rights cannot be taken away lightly. The State cannot arbitrarily deny the right of those persons for getting promotion on the basis of then existing rules since vacancy occurred during the currency of the previous Special rules. When Government takes a decision not to fill up the vacancy that decision must be reasonable and not arbitrary and must be reflected in the files. The Government or the authorities cannot deny promotion merely with a view to deny legitimate claims of persons like petitioners governed by then existing rules. If the Government wanted not to fill up any of the vacancies until the repealed rules were duly amended such a decision should have been reflected in the Government order. The Government or the authorities cannot deny promotion merely with a view to deny legitimate claims of persons like petitioners governed by then existing rules. If the Government wanted not to fill up any of the vacancies until the repealed rules were duly amended such a decision should have been reflected in the Government order. It is always possible for affected parties to test the legality or otherwise of those orders since they have got a statutory right to be considered for appointment on the basis of then existing rules. In the instant case writ petitioner could establish that the Government had acted arbitrarily in not filling up of the vacancy on the basis of the then existing rules and for not food reasons. In the absence of any conscious policy decision by the Government taking away the right of petitioner for being considered for promotion to the post of Director of Archaeology we have no hesitation to hold that the Government have committed an error in not considering the case of writ petitioner for appointment to the post of Director of Archaeology on the basis of Special Rules dated 9-5-1980. It is so declared. 10. Under such circumstance we find no reason to grant the reliefs prayed for in both these appeals. Both these appeals would stand dismissed. For non-implementation of the judgement of the learned single Judge petitioner has filed C.C.C.107 of 2001. Considering the facts and circumstances of the case we are inclined to give a direction to the respondent to consider the case of the petitioner for appointment to the post of Director of Archaeology on the basis of 1980 Special Rules and pass appropriate orders in accordance with law within a period of one month from today. With the said direction C.C.C. 107/2001 is disposed of without prejudice to the right of the petitioner to move again if the order is not complied with.