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2011 DIGILAW 1154 (KER)

Muhammed Hasim v. Sasikumar

2011-12-01

MANJULA CHELLUR, P.R.RAMACHANDRA MENON

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Judgment :- ManjulaChellur, Ag.C.J. Heard learned counsel appearing for the appellant and the learned Government Pleader appearing for respondents 2 and 3 and the learned counsel appearing for the private respondents. 2. The brief facts that led to filing of these two Writ Appeals are narrated as under: W.P. (C) No.10095 of 2008 was filed by one Mr. Haridasan challenging Ext.p1 dated 1.3.2008, a Government order. Subsequently, one Mr. Saikumar M. also filed W.P.No.35147 of 2008 challenging the very same Ext.P1. These two petitioners were admittedly working as Forest Guards in the Department of Forest during 1995 since 1994. It is also not in dispute that as per the recruitment rules of the department, 25% of the vacancies to the post of Foresters are reserved for being filled up among Forest guards. The recruitment rules provide whenever forest guards training is completed, who secures first rank in such training conducted by the Government, would be entitled to preference in the matter of such promotion, i.e., to the 25% of the vacancies. Apparently, in the year 1995, these two petitioners underwent such forest guards training and obviously they were not first rank holders. Therefore, they were not promoted as per the recruitment rules against the 25% of the vacancies reserved for such out of turn promotion based on the first rank after the training. 3. The appellant herein joined the department as a Forest Guard in the year 2006 and he was discharging his duties as a Forest Guard since 2006. By virtue of Ext.R1(a) dated 14.2.2007, the Government of Kerala came out with a proposal as indicated in the said order which reads as under: “As per the Government Order read above, the training period of all Forest Guards was enhanced to 9 months, including 3 months Physical Training in Police Training Centres/Battallions. 2. The Chief Conservator of Forests (Administration) as per the letter read above submitted proposals for imparting training to 350 Forest guards recruited in 2006 in the Police Training Academy as a special batch to commemorate to 50th anniversary of “Kerala Piravi”. 3. Government have examined the matter in detail and are pleased to accord sanction to the Chief Conservator of Forests for imparting training to 350 Forest Guards recruited in 2006, in the Kerala Police Academy, Thrissur as a special batch to commemorate the 50th anniversary of “Kerala Piravi” and orders issued accordingly. 4. 3. Government have examined the matter in detail and are pleased to accord sanction to the Chief Conservator of Forests for imparting training to 350 Forest Guards recruited in 2006, in the Kerala Police Academy, Thrissur as a special batch to commemorate the 50th anniversary of “Kerala Piravi” and orders issued accordingly. 4. The expenditure in this regard shall be met from the Head of Account “2406-0-003-99-Training-34-other charges (Plan)” in the current years budget”. 4. From reading of the above order as a special one time scheme at the time of celebration of Kerala Piravi the Government introduced imparting training to 350 Forest Guards recruited in the year 2006 and this Ext.R1(a) was not subject matter of challenge in either of the Writ Petitions. In pursuance of Ext.R1(a), Ext.P1 came to be issued on 1.3.2008, which reads as follows: “Government has examined the matter in detail. Considering the peculiar nature and strength of the Kerala Piravi Batch and also taking in to account the recommendations of both Chief Conservator of Forests (IHRD) and the Chief Conservator of Forests (Administration) Government are pleased to sanction the benefit of promotion as Foresters to 1st and 2nd Rank holders of this batch of Kerala Piravi training as a special case of one time exception and others issued accordingly.” 5. By virtue of this Ext.P1, the Government, after considering the object and the purpose why “Kerala Piravi” batch needs such an encouragement granted benefit of promotion as Foresters against 25% of vacancies from the rank list of trainers to 2nd rank holder as well as a special case. This is the order which came to be challenged by these two writ petitioners, who are the private respondents before us. So far as the fourth respondent is concerned, he got impleaded himself during the pendency of the Writ Petitions before the learned Single Judge. So far as the fourth respondent, he is also challenging the promotion of the appellant herein more or less on the similar grounds alleged by the writ petitioners in the two Writ Petitions. 6. The stand of the State before the learned Single Judge was a part of the celebrations of 50th anniversary of “Kerala Piravi”, the Department of Forest proposed such a training to 350 Forest Guards recruited in the year 2006. 6. The stand of the State before the learned Single Judge was a part of the celebrations of 50th anniversary of “Kerala Piravi”, the Department of Forest proposed such a training to 350 Forest Guards recruited in the year 2006. Therefore, as part of the celebrations, they came out by Exts.R1(a) and P1 to give encouragement to the Forest Guards on the basis of their competency in the training came to be conducted in the year 2008. As we note from the dates of Exts.R1(a) and P1, it is not in dispute that the training as contemplated under Ext.R1(a) came to be conducted and completed by the appellant herein prior to issuance of Ext.P1. So, as on the date of Ext.p1, the list of the rank holders of the trainers was already published. We also note that it is not the case of the writ petitioners that the selection of the appellant in pursuance of Ext.P1 being the second rank holder is with mala fide intention showing favouritism to a particular candidate. The main ground of challenge in the two Writ Petitions is that Ext.P1 is against the recruitment rules, which indicate that only first rank holder could be promoted against 25% of the vacancies in the post of Foresters on preferential basis. This allocation of 25% by promotion of Forest Guards is by virtue of sub-r.(3) of Category 3 of R.2 of the Kerala Forest Subordinate Service Rules, 1962, which reads as follows: “(3). 25% by promotion of Forest guards who do not possess the minimum general educational qualification of the S.S.L.C. standard, but who have put in 10 years service as guards and are literate and otherwise fit. Persons who have a pass certificate from one of the Forest Training Schools will be preferred in selecting persons for promotion against this quota. Persons securing First Rank will be given first preference: Provided that no such preference shall be given over a Forest Guard who has put in 20 years service as Forest Guard and has completed 45 years of age: Provided further that the Forest Guards appointed prior to the 1st January 1963, who were governed by the Madras Forest Subordinate Service Special Rules, shall not be denied their legitimate claim for promotion according to seniority.” 7. The learned Single Judge by referring to this Rule proceeded to hold that the very promotion of the appellant is against the existing Rule. Therefore, even if the Government were to take a policy decision unless that policy decision gets incorporated by way of Rule by amending the Rule or adding another Rule, they could not have proceeded to give promotion to the appellant herein. Hence, the promotion of the appellant was set aside. Aggrieved by the same, the present Writ Appeals are filed. 8. The first and foremost argument of the learned counsel for the appellant is that the appellant is working in the present post after promotion, subsequent to modification of the interim order subject to result of the Writ Petition. As the Writ Petition was allowed, setting aside the promotion of the appellant herein, he is before us. According to him, in the normal course, if 25% vacancies by selection from the trainee candidates were to be entertained. It would have taken much longer period as normally it would be conducted for a batch of 50, which results in 7 batches and 7 first rank holders, who would have got the benefit of sub-r.(3) of Category 3 of R.2 of the Kerala Forest Subordinate Service Rules, 1962. Therefore, according to him, the writ petitioners not being the persons aggrieved by their promotion by virtue of getting second rank could not have maintained the Writ Petitions itself as the aggrieved persons, who would have got the promotion in the normal course on the basis of seniority, are not before the court. Then lastly his argument is with reference to R.39 of Part II K.S. & S.S.R., 1958. 9. As against this, the learned counsel Sri. S. Krishnamoorthy, representing the private respondents contends that if Exts.R1(a) and P1 were not in existence, the appellant would not have got the promotion according to the existing Rules. Therefore, by a policy decision, the Government was not justified in relaxing the existing Rule, thereby creating an opportunity disadvantageous to many of the Forest Guards, who were working as Forest Guards since 1994. He further contends that even if R.39 off Part II K.S. & S.S.R. is applicable by virtue of proviso, the disadvantage referred to therein includes persons like the writ petitioners. Therefore, the proviso would come in the way of extending the benefit of R.39 to the appellant herein. He further contends that even if R.39 off Part II K.S. & S.S.R. is applicable by virtue of proviso, the disadvantage referred to therein includes persons like the writ petitioners. Therefore, the proviso would come in the way of extending the benefit of R.39 to the appellant herein. Lastly, the learned counsel for the appellant contends that application of R.39 cannot be extended to the facts of the present case as neither Ext.R1(a) nor Ext.P1 is referred to this R.39 apart from contending, for the first time before the appellate court, the appellant is placing reliance on R.39. so far as the stand of the learned government Pleader is concerned, according to her, whether it is a part of celebration of “Kerala Piravi” or otherwise, the fact remains that the Government issued Exts.R1(a) and P1 only in exercise of power vested in it under R.39 referred to above. According to her, there is no need to mention the Rule when orders are issued. Therefore, even in the absence of such Rule, ultimately the Court has to see whether there is source of authority for the Government from the existing Rules to issue such orders, i.e., Exts.R1(a) and P1. With these arguments at our command, when we proceed to examine the facts of the present case with reference to the existing Rule and also R.39 referred to by the learned counsel for the appellant, it would be necessary to re-produce R.39 of Part II of K.S. & S.S.R., 1958, which reads as follows: “39. Notwithstanding anything contained in these rules or in the Special Rules or in any other Rules or Government Orders the Government shall have power to deal with the case of any person or persons serving in a civil capacity under the Government of Kerala or any candidate for appointment to a service in such manner as may appear to the Government to be just and equitable. Provided that where such rules or orders are applicable to the case of any person or persons, the case shall not be dealt with in any manner less favourable to him or them than that provided by those rules or orders.” 10. Provided that where such rules or orders are applicable to the case of any person or persons, the case shall not be dealt with in any manner less favourable to him or them than that provided by those rules or orders.” 10. The provision commences with non obstante clause indicating irrespective of any Rule either general, special or Government Orders, this R.39 is the source of authority or power for the Government to come out with any order which would help any person or persons serving in civil capacity or any candidate for appointment to service in such manner as it appears just and equitable to the Government. In the present case, obviously it is not an appointment of a candidate, but it is a promotion to a person, who is already serving in a civil capacity. Apparently, the appellant herein was appointed as a Forest Guard in the year 2006. By the time Exts.R1(a) and P1 came to be issued, he was already in the civil service as a Forest Guard. Therefore, the person referred to in R.39 working in a civil capacity would refer to a person, who is already in civil service by the time Ext.P1 came to be issued. The proviso refers to a situation whereby by virtue of exercising power under R.39 if disadvantage is created to the person to whom such benefit was to be extended, then the Rule will not be applicable if it is in conflict with the existing rule. In other words, by virtue of R.39, no less benefit than the existing benefit could be extended to the person, who is already in civil service or by giving appointment to a new candidate. As already stated above, the appellant herein is the person referred to and as we note from Exts.R1(a) and P1, it is only first and second rank holders, who would be given preference in the matter of promotion and not all the 350 persons. Apparently, there was no such Rule or benefit by virtue of an order of the Government available to the writ petitioners in 1995 when they took the exam. The promotion given to the appellant herein is not coming in the way of any of the persons, who are already promoted like him with retrospective effect. Apparently, there was no such Rule or benefit by virtue of an order of the Government available to the writ petitioners in 1995 when they took the exam. The promotion given to the appellant herein is not coming in the way of any of the persons, who are already promoted like him with retrospective effect. In order to consider whether this promotion of the appellant has blocked or postponed the promotion of the writ petitioners as we note from the submissions that normally there would be training for the batch of 50 Forest Guards and to complete the training for 350 persons, it would have been seven batches. Even if simultaneous trainings were to be conducted, it would have been about 3-4 batches and by virtue of 7 batches or 3-4 batches either 7% or 3-4% would have got the first ranks. Apparently, there is no provision for these writ petitioners to take again training and compete with other Forest Guards. Once they have undergone the training in 1995, they are not entitled to compete with the Forest Guards, who would take training as and when such training is given to the new batch of Forest Guards. Therefore, by conducting any training programmes for subsequent batches, no prejudice as such is caused to the Forest Guards, who had already undergone the training as per the existing Rule. 11. In that view of the matter, if new batch of Forest guards had undergone training and the first rank holders were to be given preference to the others, then, they had to wait for their turn much longer than what has happened now. Admittedly, in 2010 these writ petitioners are promoted. There is no material before the Court at what serial number they were in 1995 batch for regular promotion, therefore we cannot anticipate and say with certainty that these are the writ petitioners who are put to disadvantage by virtue of promotion of the present appellant. Therefore, the argument of the learned counsel for the respondents/writ petitioners that they have lost the chance of getting promotion at an early date cannot be accepted. Then coming to the application of R.39 as it is a question of law, at any stage of the proceedings the Court can rely upon this Rule as long as it applies to the facts of the present case. Then coming to the application of R.39 as it is a question of law, at any stage of the proceedings the Court can rely upon this Rule as long as it applies to the facts of the present case. So also, irrespective of the nomenclature used at Exts.P1 and R1(a), ultimately the Court has to see the source of authority under which such Exts.P1 and R1(a) are coming into existence. As we note from the contents of Exts.P1 and R1(a), the only source they can trace is under R.39 as stated above. In that view of the matter, we are of the opinion, the promotion given to the appellant by virtue of Ext.p1 is nothing, but by invoking the authority under R.39. Therefore, Ext.p1 is in consonance with R.39. Therefore, the promotion of the appellant cannot be held as illegal or contra to the existing Rules. As this promotion is only a one time benefit given at the time of celebration of “Kerala Piravi”, we cannot opine that there is relaxation of the Rule for ever. In that view of the matter, we are of the opinion that the learned Single Judge was not justified in saying that Ext.P1 is contrary to the existing Rule, therefore, the promotion of the appellant was illegal. In view of the above discussion and the reasoning, we are of the opinion that the appeals deserve to be allowed setting aside the judgment of the learned Single Judge dated 10.6.2011 in W.P.(C) Nos.10095 and 35147 of 2008. If the Government has already implemented the order of the learned Single Judge, we direct the government to set right the things by placing the appellant to his original position as Forester as existed on the date of the judgment of the learned Single Judge.