Research › Search › Judgment

Kerala High Court · body

2016 DIGILAW 800 (KER)

B. Pradeep v. High Court of Kerala

2016-09-20

A.K.JAYASANKARAN NAMBIAR

body2016
JUDGMENT : A.K. Jayasankaran Nambiar, J. The petitioner in this writ petition entered service as an Assistant Grade II in the High Court service on 28.06.1993. He was later promoted as Assistant Grade I (Selection Grade) on 12.04.1996. While functioning as such, disciplinary proceedings were initiated against him on a number of occasions. By an order dated 17.09.2002, he was imposed with a punishment of barring of two increments with cumulative effect. Thereafter, pursuant to a memo of charges dated 31.03.2009, and an enquiry that followed, a punishment of barring of one increment without cumulative effect was imposed on him by an order dated 07.08.2011. During this period, he was also served with a memo of charges dated 24.07.2010 that eventually led to the imposition of another punishment of barring of two increments without cumulative effect, by an order dated 13.11.2014. On account of the aforementioned proceedings, the petitioner was superseded in the matter of promotion to the post of Section Officer/Court Officer which is a selection post in the High Court establishment. While issuing orders, on the last occasion, for considering the candidature of those persons who were junior to the petitioner in service, the Chief Justice made it clear that the petitioner need be considered only to vacancies arising to the post of Section Officer/Court Officer after 31.12.2010, subject to the result of the disciplinary proceedings that were then pending against him, and subject to his fulfilling the eligibility criteria for the promotion post. The petitioner's juniors were therefore considered for promotion, and their promotions were regularised by an order dated 19.12.2014. 2. When the Selection committee met for considering the candidature of persons for appointment as Section Officers/Court Officers to the vacancies that arose after 31.12.2010, the petitioner's candidature was, once again, not considered since he had been imposed a punishment of barring of two increments without cumulative effect, by an order dated 13.11.2014. The interview of candidates for promotion was scheduled on 18th and 19th of March, 2015 and, in the list of eligible persons published on 13.03.2015, the petitioner's name was not shown. This led the petitioner to, initially, approach the Chief Justice with a prayer to stall the interview proceedings, and alternatively, to permit the petitioner to participate in the interview proceedings. This led the petitioner to, initially, approach the Chief Justice with a prayer to stall the interview proceedings, and alternatively, to permit the petitioner to participate in the interview proceedings. When the said course of action failed to yield any positive response, the petitioner approached this court through the present writ petition seeking permission to provisionally participate in the interview proceedings. By an interim order dated 18.03.2015, this court directed the petitioner's name to be provisionally included in Ext.P5 list of eligible persons and further directed the selection committee to provisionally interview the petitioner pending final disposal of the writ petition. Accordingly, the petitioner was provisionally interviewed on 20.03.2015. The petitioner, however, failed to qualify for promotion since, going by the criteria in the guidelines laid down by the Chief Justice for determination of the merit and ability of the candidates, the petitioner who was imposed with a punishment in the five year period preceding the selection year, had to be treated as a person who was not fit for promotion. Based on a report to that effect placed before him by the selection committee, the Chief Justice passed Ext.P10 order dated 09.06.2015, accepting the report of the selection committee and excluding the petitioner from the list of persons directed to be promoted as Section Officer/Court Officer. In the writ petition, the petitioner impugns Exts.P5 and P10 orders, primarily on the contention that it was not open to the Chief Justice to impose strict criteria, that were not expressly mentioned in the Kerala High Court Service Rules, 2007, while assessing the merit and ability of candidates for promotion to the post of Section Officer/Court Officer. 3. A counter affidavit has been filed on behalf of the High Court, wherein, while justifying Ext.P10 order as well as the guidelines issued by the Chief Justice, it is pointed out that the petitioner has had adverse remarks recorded against him in his ACR in 1999 itself and, thereafter, pursuant to disciplinary proceedings initiated against him, the petitioner had been imposed punishments on three occasions viz. in 2002, 2011 and 2014. It is stated that, during the five-year period between 2010 and 2015, there were two punishments imposed on the petitioner, and the punishment that was imposed in 2014 is still current, in that the period of operation of the punishment is till 12.11.2016. 4. I have heard Sri. in 2002, 2011 and 2014. It is stated that, during the five-year period between 2010 and 2015, there were two punishments imposed on the petitioner, and the punishment that was imposed in 2014 is still current, in that the period of operation of the punishment is till 12.11.2016. 4. I have heard Sri. R.T. Pradeep, the learned counsel for the petitioner and Smt. V.P. Seemanthini, the learned Senior Counsel appearing for the High Court of Kerala. 5. On a consideration of the facts and circumstances of the case, as well as the submissions made across the bar, I find that the central issue to be decided in this case is whether the guidelines laid down by the Chief Justice, detailing the criteria to be adopted by the selection committee while ascertaining the suitability of a candidate for the purposes of promotion to the post of Section Officer/Court Officer in the High Court, is justiciable, and if so, whether the same can be legally sustained ? 6. As already noticed, the petitioner was imposed a punishment, pursuant to disciplinary proceedings initiated against him, on two occasions in the five years preceding the selection year. On both those occasions, the punishment imposed was the barring of increments without cumulative effect - barring of one increment, on the first occasion in 2011, and barring of two increments, on the second occasion in 2014. It is relevant to note that the punishment that was imposed on the second occasion is still current, in that, the period of operation of the punishment is not over yet. As per the Kerala High Court Service Rules 2007, while the post of Section Officer/Court Officer is a selection post, where the promotion is to be effected based on an assessment of merit and ability cum seniority, there is nothing in the Rules to indicate how the merit and ability of a candidate is to be assessed by the selection committee. In the absence of any specified procedure, therefore, the Chief Justice prescribed guidelines to guide the selection committee in their assessment of merit and ability of the candidates. The said guidelines read as follows : "(i) The selection of candidates to be promoted shall be conducted by a committee of judges to be nominated. In the absence of any specified procedure, therefore, the Chief Justice prescribed guidelines to guide the selection committee in their assessment of merit and ability of the candidates. The said guidelines read as follows : "(i) The selection of candidates to be promoted shall be conducted by a committee of judges to be nominated. (ii) The merit and ability of officers who are in the zone of consideration shall be adjudged on the basis of their last five years' ACR and also by conducting viva voce. (iii) While considering the ACR of the officers, a maximum of 20 marks be allotted on five years' ACR, 04 marks for "Excellent", 03 marks for "very good", 02 marks for "Good", 01 mark for "Satisfactory" and no mark for "adverse remarks." (iv) For viva voce 20 marks be allotted, which shall be conducted by the Committee of Judges nominated. (v) Any officer who secures 50% marks in the ACR and 40% marks in the viva voce shall be treated to have the merit and ability for promotion to the concerned post. (vi) The officers who have earned any adverse remarks in the ACR of last five years under consideration and those who have received any punishment during that period shall be treated as not fit for promotion. However, advisory remarks and warning shall not be treated as disqualification for promotion. (vii) Against each vacancy, normally four times of candidates shall be under the zone of consideration". 7. The petitioner, being a candidate who suffered two punishments in the five years preceding the selection year, is aggrieved by clause (vi) of the guidelines that renders him unfit for promotion. It is his contention that, insofar as the 2007 Rules framed by the Chief Justice does not contemplate a procedure for assessment of the merit and ability, of a candidate who has been subjected to disciplinary proceedings, and Rule 37 of the 2007 Rules contemplates that the Service Rules applicable to Government Servants will apply to the staff of the High Court as well, the guidelines framed by the Chief Justice, to the extent they prescribe criteria that are contrary to the provisions of the Kerala State and Subordinate Services Rules (KS & SSR) cannot be legally sustained. It is his further contention that the guidelines cannot be treated as forming part of the 2007 Service Rules that were formulated by the Chief Justice under Article 229 of the Constitution of India, since, Rule 39 of the 2007 Service Rules prescribes the manner in which the Rules can be amended and, in the instant case, the said procedure was not followed. It is also pointed out that, although the guidelines have been framed by the same authority as framed the 2007 Service Rules, the same could not have the effect of disqualifying the petitioner's candidature on criteria that was not specified in the Rules. 8. The provisions of Article 229 of the Constitution of India are essentially a continuation of like provisions that existed in the Government of India Act, 1915 and the Government of India Act, 1935. Article 229 makes the Chief Justice of the High Court the supreme authority in the matter of appointment of officers and staff of the High Court. It has been held that the power to appoint an officer or staff of the High Court also includes the power to dismiss (See: Pradyat Kumar Bose v. Hon'ble Chief Justice of Calcutta High Court - [ AIR 1956 SC 285 ]). The said provision also confers rule making powers on the Chief Justice for regulating the conditions of service of officers and staff of the High Court, subject to the condition that if the rules relate to salaries, allowances, leave or pensions, they have to have the approval of the Governor of the State. If the legislature of the State has made any law, the rules made by the Chief Justice would operate subject to the conditions made in that law. It is trite that the power under Article 229 has been entrusted to the safe custody of the Chief Justice in order to ensure the independence of the judiciary whose authority is to be maintained. The discretion exercised by the Chief Justice cannot be open to challenge, except on well known grounds such as when the exercise of discretion is violative of Articles 14 or 16 of the Constitution, discriminatory, mala fides or the like. The discretion exercised by the Chief Justice cannot be open to challenge, except on well known grounds such as when the exercise of discretion is violative of Articles 14 or 16 of the Constitution, discriminatory, mala fides or the like. Having said that, it is also well settled that, in order to enable a judicial intervention, it would require a very strong and convincing argument to show that the power has been abused, keeping in mind the fact that the power is vested in a High Constitutional authority and, when exercised by the said authority, is not to be lightly interfered with. 9. Rule 37 of the 2007 Service Rules that deals with the applicability of the Rules regulating service conditions of Government Servants to the Officers and Staff of the High Court reads as under ; 37. Pay, allowances, leave salary, pension and other conditions of service :- (1) Except as otherwise provided in these Rules, the compulsory retirement on superannuation of a member of the Service shall take effect from the afternoon of the last day of the month in which he attains the age of 58 years. (2) Subject to these Rules, the Kerala Service Rules, the Government Servants Conduct Rules, the General Provident Fund (Kerala) Rules and the rules regulating the services for the time being in force applicable to the officers under the rule making power of the Governor or Government of Kerala, as the case may be, shall govern the members of the Service in the matter of their pay, allowances, leave, leave salary, pension and other conditions of service : Provided that except with regard to salaries, allowances, leave and pension, the Chief Justice shall exercise the powers vested in the Governor or the Government under any of the aforesaid rules : Provided further that the Chief Justice shall specifically issue orders sanctioning the grant of the scales of pay and allowances to the members of the Service in accordance with those sanctioned by the Government. Note :- The Chief Justice is the Head of the Department as regards the members of the Service. Note :- The Chief Justice is the Head of the Department as regards the members of the Service. [(3) Subject to Rule 37(2) of these Rules, prior service of a member of the service, in the Government of Kerala or the Central Government or a Local Self Government Institution or a University coming within Rule 20 of Kerala Service Rules, Part III will be reckoned for pensionary benefits consequent on revision of pay and allowances or otherwise, as applicable to the officers under the Government of Kerala.] The proviso to the Rule indicates that the Chief Justice shall, except with regard to salaries, allowances, leave and pension, exercise the powers vested in the Governor or the Government under any of the Rules referred to in Rule 37. It follows, therefore, that the executive power, to issue administrative orders/circulars/guidelines to supplement the Rules, that is available to the Governor or the Government can be exercised by the Chief Justice also. Further, since the guidelines, in the instant case, do not have the effect of nullifying any condition of eligibility that is prescribed in the Rules, they cannot be seen as supplanting the Rules. The decisions of the Supreme Court in Sarva U.P. Gramin Bank v. Manoj Kumar Chak ( (2013) 6 SCC 287 ) and B. Amrutha Lakshmi v. State of Andhra Pradesh and Others ( (2013) 16 SCC 440 ), relied on by the learned counsel for the petitioner to contend that the guidelines, in the instant case, had the effect of supplanting the 2007 Service Rules, are clearly distinguishable on facts, since, in those cases, the new criteria laid down by the selection committee had the effect of altering criteria that were specified in the statutory rules. It is not so in the instant case. In the absence of any criteria specified in the Rules, Clause (vi) of the guidelines can be seen as merely supplementing the Rules by prescribing criteria that would serve to determine the merit and ability of a candidate for the purposes of promotion. The further contention of the learned counsel for the petitioner that, in the absence of any specific procedure laid down in the 2007 Service Rules, the provisions of the KS&SSR, that deal with the criteria and procedure to be followed while considering the candidature of a person subjected to disciplinary proceedings for promotion, should apply, also cannot be accepted. The further contention of the learned counsel for the petitioner that, in the absence of any specific procedure laid down in the 2007 Service Rules, the provisions of the KS&SSR, that deal with the criteria and procedure to be followed while considering the candidature of a person subjected to disciplinary proceedings for promotion, should apply, also cannot be accepted. As already noted, the 2007 Service Rules preserves the power of the Chief Justice to issue guidelines to supplement the Rules, when they are silent with regard to the procedure to be followed in particular cases. The guidelines laid down by the Chief Justice are, therefore, legally valid and applicable to the case of the petitioner. 10. There is yet another angle to this issue. The guidelines, to the extent they are designed to guide the selection committee in the matter of selection of suitable candidates for promotion can also be seen as prescribing suitability criteria that would ensure that only the most suitable persons would make the final cut for promotion to the higher post. It is trite that while the prescription of eligibility criteria can be called in question in proceedings for judicial review, on any of the well settled grounds for the same, the criteria fixed by the employer for the purposes of determining the suitability of a candidate are not justiciable. No doubt, suitability criteria cannot be such as would nullify an eligibility criteria. In the instant case, however, since there is no prescribed criteria to determine a candidate's merit and ability, the criteria specified in the guidelines aforementioned, can be viewed as suitability criteria, that are immune from challenge, more so since they are criteria prescribed by the Chief Justice of the High Court, who is the supreme authority in the matter of appointment of officers and staff of the High Court, and also functions as the legislature when framing Rules to govern the conditions of service of the said officers and staff of the High Court. It might also be apposite, at this juncture, to note that, in the case of the petitioner, his candidature for promotion came up for consideration before the selection committee during the currency of the punishment imposed on him by Ext.P2 order dated 13.11.2014. It might also be apposite, at this juncture, to note that, in the case of the petitioner, his candidature for promotion came up for consideration before the selection committee during the currency of the punishment imposed on him by Ext.P2 order dated 13.11.2014. Currency of punishment has long been recognised as a disqualification for promotion in service jurisprudence, and it is well settled that past conduct can be taken into account while adjudging the suitability of an employee for discharge of duties in a higher post (See : Sarva U.P. Gramin Bank v. Manoj Kumar Chak [ (2013) 6 SCC 287 ]). Thus, the petitioner cannot, in any event, be found suitable for promotion to the post of Section Officer/Court Officer. The further contention of the petitioner, that the guidelines do not differentiate between a major penalty and a minor penalty, while prescribing that the imposition of any penalty in the preceding five years would render a candidate unfit for promotion, also cannot advance his case since, the mere imposition of a strict criteria to determine suitability cannot be seen as arbitrary or unreasonable when the post in question is in the High Court Service and the Special Rules framed, and the procedures envisaged therein, are geared to preserving the independence of the judiciary. Stricter criteria only serve to ensure that progress through the hierarchy of posts in the service is limited to those select few whose integrity, conduct and devotion to duty meet higher standards which, in the ultimate analysis, results in a better administration of the Institution. The upshot of the aforesaid discussion is that the writ petition, in its challenge against Exts.P5 and P10 orders, fails, and is accordingly dismissed. No costs.