High Court affirmed Kerala Administrative Tribunal order setting aside Government promotion order that violated service rules by effectively bypassing mandatory experience requirements. Court held Rule 39 power cannot be used arbitrarily to upset settled seniority.
Impugned Tribunal order affirmed. Original petition dismissed. No order as to costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
“CR”
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR.JUSTICE V.G.ARUN
THURSDAY, THE 23RD DAY OF JANUARY 2020 / 3RD MAGHA, 1941
OP(KAT).No.214 OF 2018(Z)
OA 1326/2014 DATED 02-05-2018 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM
PETITIONER/S:
1 P.ABOOBACKER PRINCIPAL, GOVERNMENT POLYTECHNIC COLLEGE,MUTTAM, THODUPUZHA, IDUKKI, KERALA,PIN685 587 (NOW RETIRED AND RESIDING AT "AYSHA'S", NEAR MORAZHA U.P.SCHOOL, ANJAMPEEDIKA P.O., VIA MOTTAMMAL, KANNUR, PIN- 670 331).
2 V.C.POOKOYA THANGAL PRINCIPAL, GOVERNMENT POLYTECHNIC COLLEGE,KALAMASSERY, ERNAKULAM, KERALA,PIN- 683 101,(NOW RETIRED AND RESIDING AT "GAZAR", POTTAMMAL, NELLIKKODE, KOZHIKODE, PIN- 673 016.
3 SHAREEF HUSSAIN PRINCIPAL, GOVERNMENT POLYTECHNIC COLLEGE,VECHOOCHIRA, PATHANAMTHITTA, KERALA,PIN- 686 511 ( NOW WORKING AS PRINCIPAL, GOVERNMENT POLYTECHNIC COLLEGE, MATTANNUR, KANNUR PIN- 670 702).
BY ADVS. SRI.S.P.ARAVINDAKSHAN PILLAY SRI.S.A.ANAND SMT.L.ANNAPOORNA SRI.K.A.BALAN SRI.PETER JOSE CHRISTO SMT.N.SANTHA SRI.V.VARGHESE
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RESPONDENT/S:
2 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT,HIGHER EDUCATION (L) DEPARTMENT,GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, KERALA,PIN- 695 001.
4 THE DIRECTOR DIRECTORATE OF TECHNICAL EDUCATION,POWER HOUSE BUILDING, THAKARAPARAMBU,THIRUVANANTHAPURAM, KERALA,PIN- 695 023, (NOW PADMAVILASOM ROAD, EAST FORT,THIRUVANANTHAPURAM, PIN- 695 023.)
R1 BY ADV. SRI.P.NANDAKUMAR
OTHER PRESENT:
SR.GP SRI.ANTORNY MUKKATH
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 23-01-2020, THE COURT ON 23-01-2020 DELIVERED THE FOLLOWING:
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“CR”
JUDGMENT
Dated this the 23rd day of January, 2020.
V.G.ARUN, J.
Petitioners were respondents 4 to 6 in the original application filed by the first respondent herein. The Tribunal, as per its order in O.A.No.1326 of 2014, allowed the original application and set aside Annexure A6 order of the Government by which the petitioners were promoted as Head of Section in Electronics in different Government Polytechnic Colleges with effect from 11.11.2000 and granted notional promotion as Principals, with effect from 03.06.2010 and were posted as Principals with immediate effect in purported exercise of the power under Rule 39 of Part II KS&SSR. The essential facts, which culminated in the impugned order, are as follows:-
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The applicant had entered service as Lecturer in Electronics under the Directorate of Technical Education on 08.10.1992. At the time of his appointment, the applicant possessed the qualification of B.E. (Electronics and Communication) and had prior experience as Instructor in an Industrial Training Centre affiliated to the National Council for Vocational Trades, Ministry of Labour and Employment, Government of India. As per the Special Rules for Kerala Technical Education Service, the method of appointment to the post of Head of Section is by way of promotion and direct recruitment and the qualification prescribed is Degree in the appropriate branch of Engineering or Technology or any other qualification recognised by the Government as equivalent thereto with not less than 60% marks in the qualifying examination for direct recruitment, the requirement of 60%
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marks not being insisted in the case of promotions. Along
with the qualification, the candidate should also have eight years experience in Engineering profession, of which at least three years should be teaching experience as Lecturer not below the Diploma level in recognised/approved institutions.
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applicant was included at serial No.9, whereas respondents 4 and 5 were at serial Nos.17 and 18 respectively.
The 5th respondent joined service as Workshop Superintendent on 31.08.1989 and was promoted as Lecturer on 12.12.1990. He acquired B.Tech Degree on 11.11.1997 and
was promoted as Lecturer on the same day. The 6th
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respondent joined service as Trade Instructor on 20.06.1991 and on acquisition of B.Tech, was promoted as Lecturer on 11.11.1997. The 5th respondent had earlier filed W.P.(C) No.13096 of 2009 before this Court seeking retrospective promotion as Head of Section with effect from 11.11.2000. The writ petition was transferred to the Tribunal and as per Annexure A4 order, the Tribunal directed the Government to consider the 5th respondent's grievance. Accordingly, by Annexure A5 order dated 23.10.2013, the Government considered and rejected the 5th respondent's representation. After the issue regarding seniority and promotion of the applicant and respondents 4 to 6 had thus become settled, the Government issued Annexure A6 order granting respondents 4 to 6 the benefit of retrospective promotion as Head of Section and notional promotion as Principals, thereby
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upsetting the settled seniority of the applicant and others.
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Lecturer as on 11.11.2000. That, the Departmental Promotion Committee was not convened during the years 2000-2001 and had met only on 05.02.2002 and thereafter on 23.03.2003, in which a select list of 13 candidates including the applicant and respondents 4 and 5 was prepared. The Departmental Promotion Committee, which met in the year 2002-2003 did not take into account teaching experience in the cadre of Assistant Lecturer, Engineering Instructor, Demonstrator etc for reckoning the eight years experience, whereas on earlier occasions, the aforementioned teaching experience was also reckoned. Since respondents 4 to 6 were denied their rightful promotion, by not reckoning their teaching experience, the Government had corrected the mistake under Annexure A6 order by promoting respondents 4 to 6 as Head of Section with effect from 11.11.2000.
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On facts, it was noticed that the Special Rules specifically mandate the experience to be one in Engineering profession, which respondents 4 to 6 did not have and that as on 11.11.2000, the date on which respondents 4 to 6 are notionally promoted as Head of Section in Electronics against the vacancies which arose on 23.2.2000, the vacancies to which respondents 4 to 6 were promoted, stood filled up by promotion of three other Lecturers and there was no vacancy to which the respondents 4 to 6 could have been promoted. Based on the findings, the Tribunal set aside Annexure A6 and directed to issue consequential orders, re-assigning the promotions to the post of Head of Section and Principal in accordance with Annexure A1 select list and Annexure A3 seniority list.
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petitioners/ respondents 4 to 6 in the original application contended that Annexure A6 order having been issued by the Government in exercise of its residual power to do complete justice, the Tribunal ought not have interfered with the order in exercise of its power of judicial review. It is contended that the applicant had obtained the essential qualification for promotion to the post of Head of Section only on 20.8.2002, whereas respondents 4 to 6 had obtained the said qualification on 11.11.2000. It is contended that by issuing Annexure A6 order, the Government had only corrected an injustice done to respondents 4 to 6. It is submitted that no prejudice is caused to the applicant on the basis of Annexure A6 as the order did not entail in reversion of the applicant from the post of Head of Section and Principal. That, by the notional promotion of respondents 4 to 6, the applicant did
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not lose any promotional avenues since there is no prospect
for further promotion for the applicant as well as respondents 4 to 6.
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apposite to consider Rule 39 of Part II of KS&SSR, 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.”
Of course under Rule 39 of Part II of KS&SSR, the power to
deal with the case of any employee in Government service in a
just and equitable manner is vested with the Government, notwithstanding anything contained in the Rules or in the Special Rules or in any other Rules or Government orders. No doubt, the power is extensive. But the question is as to whether the power is all pervasive, to be exercised in all
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situations and in whatever manner the Government decides, to favour a person or group of persons, to the detriment of another person or group of persons, to circumvent the mandatory requirements in the Service Rules and above all to do so without hearing the affected persons. The answer can only be an emphatic 'no'. Rule 39 cannot under any circumstance be understood as a power, which can be exercised without following the fundamental principles of natural justice and fair play. The basic requirement of hearing the affected person is sacrosanct and cannot be given a go by. The exercise of power under Rule 39 is qualified by the words 'just and equitable', which definitely indicates that the Government shall exercise the power only in such a manner as may appear to be just and equitable. Justness of an order is liable to be tested on the touch stone of fairness. Equity
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presupposes consideration of all relevant factors and hearing of all affected persons.
the scope and ambit of Rule 39 and held as under:-
“23. We have to understand R.39 of the K.S.S.R as giving power to the Government to set right matter, when otherwise there was imminent hardship or illegalities. What was contemplated was a relaxation in public interest. Appointments to the Police Force are to be made with reference to the rules framed under Public Services Act and it should not be mistaken that R.39 of the K.S.S.R by itself confers a special sui juris or exclusive power than that is prescribed by the Special Rules. The Special Rules as well as the general rules are to be deemed as issued under the Public Services Act, vide S.2 read with S.3 of the Act. It is not as if the Public Services Act is subservient to R.39 of the K.S.S.R in fact the parent Act requires full obedience. The foundation for invocation of power under the Rule is justice and equity. The petitioner in the O.P. cannot contend that what was proposed to be given him was a fresh appointment he being a serving officer. So much so, Government was obliged to recognise the presence of third persons, and claims of his seniors. This is because the petitioner do only come within the first category spoken to by the Rules viz, a case where it deals with a person already in service. Of course, in the case of a fresh candidate, who is yearing for appointment, Government has power to relax, as could be gatherable from the latter part of the Rules, but the petitioner cannot claim that he belongs to this general. Therefore, we have to notice that the principles laid down by the Full Bench in Sreedharan Pillai's case would have relevance. The loss of seniority which was to befall on the appellants therefore could not have been overlooked.
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such persons were likely to be seriously affected and prejudiced. The judgment and consequential order Annexure.A therefore offended principles of fair play, natural justice and requires to be annulled.”
11. Again, in Vijayakumar v. State of Kerala [2014 (1)
KLT 186] , another Division Bench of this Court held that when
the power to relax a rule is protected while making a rule, then the power has to be understood as an exception and only as the reflection of the existing power to deal with extraordinary circumstances. Any power to relax has always to be understood as one exercised in exceptional circumstances and that, if power to relax were to be treated otherwise, that would be an affront to fairness, transparency and hence, would be arbitrary, having regard to Part III of the Constitution of India.
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Kumar Uppal v. State of Jammu and Kashmir [(1998) 4 SCC
179] . After considering the question at length, it was held that the Government can exercise the power to relax the rules in cases where hardship is caused due to the implementation of these rules, to meet a particular situation or where injustice has been caused to either the individual employee or class of employees. The Apex Court sounded a note of caution by observing that the power to relax cannot be exercised capriciously or arbitrarily, to give undue advantage or to favour an individual employee.
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others [ILR 2016 (4) Ker. 547] . The beneficiary therein was a person who was not even called for an interview by the PSC because of non-satisfaction of the required qualification with respect to physical measurement. The challenge in the original petition was against the exemption granted to the beneficiary from having the requisite chest measurement for being appointed as Forest Range Officer. The beneficiary's challenge against his non-inclusion in the select list of Forest Range Officer for reason of his not satisfying the physical eligibility condition having failed up to the Supreme Court, he moved the Government with a representation and the Government in exercise of power under Rule 39 granted exemption to the beneficiary and directed him to be promoted without undergoing the mandatory training. His promotion was challenged by another aspirant and after detailed
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consideration of the question with respect to invocation of the power under Rule 39 and a detailed survey of precedents, the Division Bench held that if the relaxation given by the Government is approved, it obviously will be in contravention of the relevant rules as it existed at the relevant point of time. That apart, there may be so many other persons like the beneficiary, who may be standing in the queue and having more merit. It was observed that the Government was more eager to extend the benefit, taking the case of the beneficiary in isolation, merely on the basis of the representation made by him, quite conveniently forgetting the merit/fate or chance of others concerned. It was held that no second thought is required to hold that the power under Rule 39 was exercised by the Government quite casually and arbitrarily.
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Rules prescribed eight years experience in Engineering profession, of which at least three years should be teaching experience as Lecturer not below the Diploma level in recognised/ approved institutions. As per Rule 10 (ab) of Part II KS&SSR, the experience prescribed under the statute should be gained after acquiring the basic qualification prescribed for the post. The basic qualification prescribed for the post of Head of Section is Degree in appropriate branch of Engineering or any other qualification recognised by Government as equivalent thereto. It naturally follows that the eight years experience in Engineering profession should be experience gained after acquiring the essential qualification for holding the post. As rightly held by the Tribunal, the usage of the words 'eight years experience in Engineering profession' clearly indicates that the experience
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should be after acquisition of Engineering/Technology Degree or its equivalent. Indisputably, respondents 4 to 6 had acquired B.Tech Degree only on 11.11.1997 and were promoted as Lecturers on the same date. Their eight year experience in Engineering profession could have been reckoned only from 11.11.1997. If so, respondents 4 to 6 would become eligible for promotion as Head of Section only by 11.11.2005. Hence, the promotion granted to respondents 4 to 6 as Head of Section with effect from 11.11.2000 under Annexure A6 order and their notional promotion as Principals with effect from 03.06.2010 is in patent violation of the Service Rules.
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persons, that too, to the detriment of another person or group of persons, promoted long back, on their satisfying the requisite eligibility condition. As rightly observed by the Tribunal, the benefit was granted even without exhausting the statutory remedies provided under Rules 27B, 28 (b) (i) (8) (a) and 29 of Part II of KS&SSR. The legal position with regard to the sanctity of seniority list and the list being unassailable at the instance of a person who had been sleeping over his rights is well settled through a catena of decision of the Honourable Supreme Court including the decisions in Rajendra Prathap Singh Yadav and others v. State of Uttar Pradesh and others [(2011) 7 SCC 743], H.S.Vankani and others v. State of Gujarat and others [(2010) 4 SCC 301], Rabindra Nath v. Union of India [(1970) 1 SCC 84],
For the reasons mentioned above, the findings in the
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impugned order of the Tribunal are only to be affirmed and
we do so. Consequently, the original petition is dismissed. No order as to costs.
Sd/-
K.VINOD CHANDRAN
JUDGE
Sd/V.G.ARUN JUDGE
Scl/23.01
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APPENDIX
PETITIONER'S/S EXHIBITS:
EXT P1 TRUE COPY OF THE O.A NO.1326/2014 BEFORE THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM. ANNEXURE-A1: TRUE COPY OF SELECT LIST DATED 21/04/03. ANNEXURE-A2: TRUE COPY OF ORDER DATED 18/07/03 ISSUED BY THE 1ST RESPONDENT. ANNEXURE-A3: TRUE COPY OF GRADATION LIST DATED 5/6/07 ISSUED BY THE 2ND RESPONDENT. ANNEXURE-A4: TRUE COPY OF ORDER DATED 26/08/13 IN T.A.NO.6185 OF 2012. ANNEXURE-A5: TRUE COPY OF ORDER DATED 23/10/13 ISSUED BY THE 1ST RESPONDENT. ANNEXURE-A6: TRUE COPY OF ORDER DATED 24/05/14 ISSUED BY THE 1ST RESPONDENT. EXT P2 TRUE COPY OF THE REPLY STATEMENT FILED BY THE RESPONDENTS 4, 5 AND 6 IN O.A NO.1326/2014 OF THIS HONOURABLE TRIBUNAL. ANNEXURE-R4(A): TRUE COPY OF THE LETTER NO.RIGHT TO INFORMATION/400/2008-09 DATED 09/01/09 OF THE STATE PUBLIC INFORMATION OFFICER OF THE OFFICE OF THE 3RD RESPONDENT. ANNEXURE-R4(B): TRUE COPY OF THE G.O (RT) NO.849/71/EDN.DATED 2/6/71.
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ANNEXURE-R4(C): TRUE COPY OF THE LETTER NO.EG2/476/2013 DATED 11/03/14 OF THE 3RD RESPONDENT, ADDRESSED TO THE 1ST RESPONDENT. EXT P3: TRUE COPY OF THE ORDER DATED 02/05/18 IN OA.1326/204 OF THIS HONOURABLE TRIBUNAL.
3 issues framed by the court
Whether Rule 39 of Part II KS&SSR allowing government power to act just and equitable can be exercised to upset settled seniority or circumvent mandatory service rules without hearing affected persons
Whether the required eight years of engineering profession experience must be reckoned from the date of acquiring the engineering degree for promotion eligibility.
Whether the Tribunal's set aside of the Government order and restoration of seniority was correct.
Colour shows how this judgement treated each authority
Koyit Joseph and others v. Subash George and others [ILR 2006 (3) Ker.162]Explained¶90
Vijayakumar v. State of Kerala [2014 (1) KLT 186]Explained¶95
Ashok Kumar Uppal v. State of Jammu and Kashmir [(1998) 4 SCC 179]Explained¶98
Dinesh Sankar N.T v. State of Kerala and others [ILR 2016 (4) Ker. 547]Explained¶103
Rajendra Prathap Singh Yadav and others v. State of Uttar Pradesh and others [(2011) 7 SCC 743]Referred¶120
H.S.Vankani and others v. State of Gujarat and others [(2010) 4 SCC 301]Referred¶120
Rabindra Nath v. Union of India [(1970) 1 SCC 84]Referred¶120
1 provisions across 1 enactments
P.ABOOBACKER
V.C.POOKOYA THANGAL
SHAREEF HUSSAIN
STATE OF KERALA
K.VINOD CHANDRAN
V.G.ARUN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
