Challenges to Kerala’s rules governing appointment and pension of ministerial and legislative personal staff were dismissed. The court upheld personal selection, direct recruitment and exemption from Public Service Commission consultation, rejecting the constitutional challenge to pension benefits. It observed that fixing cadre strength was desirable.
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.
W.P.(C) No. 9420/2021 & batch : 1 :
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
THURSDAY, THE 1ST DAY OF DECEMBER 2022 / 10TH AGRAHAYANA, 1944
WP(C) NO. 9420 OF 2021
PETITIONER/S:
RESPONDENT/S:
W.P.(C) No. 9420/2021 & batch : 2 :
REPRESENTED BY SECRETARY, KERALA PUBLIC SERVICE COMMISSION HEAD OFFICE, PATTAM, THIRUVANANTHAPURAM 695 004.
4 C.M. RAVINDRAN, ADDITIONAL PRIVATE SECRETARY, OFFICE OF THE CHIEF MINISTER OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM 695 001. BY ADVS. R2 BY SRI. P.C. SASIDHARAN, SC, KERALA PUBLIC SERVICE COMMISSION R4 BY SRI. B.G.HARINDRANATH SHRI.V.MANU, SENIOR GOVERNMENT PLEADER R1 BY SRI. GOPALAKRISHNA KURUP, ADVOCATE GENERAL SHRI.ANTONY MUKKATH, SENIOR GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01.12.2022, ALONG WITH WP(C).NOS. 10400 & 10661 OF 2021 & 8015 & 1318 OF 2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C) No. 9420/2021 & batch
: 3 :
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
THURSDAY, THE 1ST DAY OF DECEMBER 2022 / 10TH AGRAHAYANA, 1944
WP(C) NO. 10400 OF 2021
PETITIONER/S:
CITIZEN’S ASSOCIATION FOR DEMOCRACY EQUALITY TRANQUILITY AND SECULARISM (CADETS) IN SHORT, SEETHARAM COMPLEX, 41/1789, OPPOSITE TO SREE SUDHEENDRA HOSPITAL, KACHERIPADY, CHITTOOR ROAD, NORTH, ERNAKULAM DISTRICT – 682 018, REPRESENTED BY ITS SECRETARY, E.G MANOJ, AGED 50 YEARS, S/O.A.K. GOVINDAN NAIR, EDAPPATTU HOUSE, S.VAZHAKKULAM P.O, ALUVA (VIA), ERNAKULAM, KERALA – 683 105.
BY ADVS.
C.RAJENDRAN SRI.B.K.GOPALAKRISHNAN SRI.V.R.MANORANJAN (MUVATTUPUZHA)
RESPONDENT/S:
W.P.(C) No. 9420/2021 & batch : 4 :
R1 BY SRI. GOPALAKRISHNA KURUP, ADVOCATE GENERAL R4 BY SRI. B.G.HARINDRANATH R5 BY SHRI.DEEPU LAL MOHAN, SC, STATE ELECTION COMMISSION, KERALA SHRI.V.MANU, SENIOR G.P. R1 BY SHRI.ANTONY MUKKATH, SENIOR GOVERNMENT PLEADER R2 BY SRI. P.C. SASIDHARAN, SC, KPSC
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01.12.2022, ALONG WITH WP(C).9420/2021 AND BATCH, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
THURSDAY, THE 1ST DAY OF DECEMBER 2022 / 10TH AGRAHAYANA, 1944
WP(C) NO. 10661 OF 2022
PETITIONER/S:
UNNIKRISHNAN N. NAIR AGED 60 YEARS
SON OF LATE NARAYANAN NAIR, LAKSHMI NIVAS, THALAYAZHAM, THOTTAKOM-686 607 AAM AADMI PARTY, VAIKOM ASSEMBLY CONSTITUENCY CO-ORDINATOR
BY ADV T.U.ANUKRISHNA
RESPONDENT/S:
STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.
R1 BY SRI. GOPALAKRISHNA KURUP, ADVOCATE GENERAL
SRI. ANTONY MUKKATH, SR. GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.12.2022, ALONG WITH WP(C).9420/2021 AND BATCH, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
THURSDAY, THE 1ST DAY OF DECEMBER 2022 / 10TH AGRAHAYANA, 1944
WP(C) NO. 8015 OF 2022
PETITIONER/S:
DINESH MENON AGED 64 YEARS S/O LATE C PADMAKARA MENON, RESIDING AT 2B, SYMPHONY GOLD HOMES, OTTAPALAM P O, PALAKKAD DISTRICT, KERALA STATE, PIN-679 101.
BY ADVS. V.SETHUNATH V.R.MANORANJAN (MUVATTUPUZHA) K.HARIKUMAR THOMAS ABRAHAM
RESPONDENT/S:
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GOVERNMENT OF KRALA,, KERALA LEGISLATURE COMPLEX, PALAYAM, THIRUVNANTHAPURAM, PIN-695 001.
SRI. GOPALAKRISHNA KURUP, ADVOCATE GENERAL
SRI. ANTONY MUKKATH, SR. GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01.12.2022, ALONG WITH WP(C). 9420/2021 & BATCH, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C) No. 9420/2021 & batch : 8 :
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
THURSDAY, THE 1ST DAY OF DECEMBER 2022 / 10TH AGRAHAYANA, 1944
WP(C) NO. 13181 OF 2022
PETITIONER/S:
JUSTINE PALLIVATHUKKAL AGED 46 YEARS S/O. JOSEPH PALLIVATHUKKAL, PALLIVATHUKKAL HOUSE, PUTHUPARIYARAM P.O, PALAKKAD, PIN – 678 731. BY ADVS. SRI. RAJU JOSEPH (SR) J.JULIAN XAVIER FIROZ K.ROBIN JOSE. V.V. (THENGATHARA) NIRMAL KURIEN EAPEN
RESPONDENT/S:
SRI. GOPALAKRISHNA KURUP, ADVOCATE GENERAL
SRI. ANTONY MUKKATH, SR. GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01.12.2022, ALONG WITH WP(C).9420/2022 AND BATCH, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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: 9 :
S. MANIKUMAR, CJ & SHAJI P. CHALY, J.
W.P.(C) Nos. 9420 & 10400 of 2021 & 8015, 10661 & 13181 of 2022
Dated this the 1st day of December, 2022.
JUDGMENT
SHAJI P. CHALY, J.
The captioned Public Interest writ petitions are materially connected, challenging the constitutional validity of the appointment of personal staff to the office of the Chief Minister, Ministers, leader of the opposition, and the Chief Whip by the Special Rules dated 03.03.1959 amended from time to time. Therefore, we heard them together and proposed to pass this common judgment.
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consultation with the Kerala Public Service Commission on the suitability of the candidates to be so appointed; that Exhibit P2 rules to the extent it permits selection for appointment to the personal staff of Minister, Leader of Opposition and Government Chief Whip without following a transparent and fair procedure of notification of vacancies and opportunity to all qualified persons to apply and be considered for appointment is ultra vires and violative of Articles 14 and 16 of the Constitution of India and hence, void; for a direction to the respondents not to make any appointment under Exhibit P2 without a fair and transparent selection procedure; that the selections and appointments under Exhibit P2 ought to be made with proper notification and selection process giving equal opportunity to all qualified and to issue a writ of mandamus directing respondent 1 and 2 to make selection and appointment to the category of personal staff of Ministers, Leader of Opposition and Government Chief Whip only based on a fair, independent and transparent recruitment procedure giving full and equal opportunity to all qualified for appointment to such posts; that the power under the proviso to Rule 4 of Exhibit P2 Special Rules to exempt from qualification is arrived at in a proper manner; to issue a writ of mandamus directing respondents 1 and 2 not to make any appointment under the proviso to Rule 4, except in cases where such satisfaction is recorded in accordance with law and also that
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such selection and appointment under the proviso to Rule 4 of Exhibit P2 Special Rules be made only in accordance with a proper and transparent selection procedure; to quash the appointment made to the personal staff of the Chief Minister and the Ministers as violative of Articles 14 and 16 of the Constitution of India, since the same was done without following proper procedure; and also for a declaration that Rule 9 of the Special Rules as amended with effect from 23.09.1994 dealing with the payment of pension to the persons directly recruited to the personal staff of the Ministers, Leader of Opposition and the Government Chief Whip having a minimum service of three years, with a rider that the qualifying service for maximum pension shall be 30 years.
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power under the proviso to Rule 4 of the Special Rules can be exercised only in special cases where, after consideration of facts and circumstances, the necessity to exercise such power under the proviso is arrived at properly; and further to declare that Rule 9 of the Special Rules dealing with ‘pension’ is void.
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Service Rules (KSR) and the Kerala State and Subordinate Service Rules (KS & SSR); for a declaration that Exhibit P3 amendment notification dated 23.09.1994 bearing No. G.O. (MS) No. 283/94/GAQD amending the Special Rules, and Rule 9 of the Special Rules, as unconstitutional and ultra vires; to quash Exhibit P3 Government Order and Rule 9 of the Special Rules granting pension and family pension to the personal staff; for a writ of mandamus directing the State Government and its officials to realise the illegal pension disbursed under Rule 9 of the Special Rules, to the personal staff of the Ministers, Leader of Opposition and the Chief Whip (Amendment) Rules, 1994; for a further writ of mandamus declaring that Rule 10 of the Allotment and Occupation of Government Servants Quarters, Rules 2006 as unconstitutional; to quash Exhibit P13 Government Order amending Rule 10 of the Allotment & Occupation of Government Servants Quarters Rules 2006; and also to declare that the personal staffs of the Ministers, Government Chief Whip and the Opposition Leader can only be appointed from among the existing Government Servants in the State service, Local Self Government Institutions, and other public sector undertakings.
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being arbitrary and violative of Articles 14, 16, 315 and 320 of the Constitution of India; and for a further declaration that the Special Rules governing the personal staff of the Chief Minister, Ministers, Leader of Opposition and the Government Chief Whip as per Exhibits P1 to P7, are arbitrary and unconstitutional.
8 According to the petitioners, when the power to select candidates for appointment is conferred on any individual, it must be presumed that the Rule demands the said power to be exercised in a fair, reasonable and just manner and further that any other interpretation of the Rules would render it void and unconstitutional. That apart, it is contended that the selection and appointments without following a proper procedure ought to be treated as null and void as inconsistent with the statutory provisions. It is also pointed out that it is now trite that even temporary or adhoc appointments cannot be made without inviting applications from all eligible candidates and any appointment made without following the said procedure is a nullity in law.
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exercised in accordance with the requirements of transparency, equality and fairness, as is held by the Apex Court in State of Orissa v. Mamatha Mohanty [2011) 3 SCC 436]. The sum and substance of the contention is that the selection and appointment made without following transparent and legal procedure, and without giving full opportunity to the qualified citizens must be treated as void and violative of Articles 14, 16 and 21 of the Constitution of India. Therefore, it is contended that the appointment of the personal staff made in violation of the constitutional mandate under Articles 14 and 16 of the Constitution of India ought to be treated as void and no benefits to the appointees shall follow from the same.
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the General Constitutional scheme and the decision to choose an alternative system for deciding matters covered under clauses (a) to (e) of Article 320(3) of the Constitution of India cannot be resorted to, unless an informed and reasoned decision is made to do so.
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exclusion to the method of appointment from the secretarial service and on deputation basis from the public sector undertakings and the Local Self Government Institutions, is bad and illegal.
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relating to the employment or appointment to any office under the State, which mandate is not followed in the instant case.
State as well as other parties basically denying all the allegations and claims and demands raised in the writ petitions, inter alia contending that the Regulations, 1957 provides for consultation with the Kerala Public Service Commission in the matter of Public employment in civil posts under the State. Rule 4(b) of the Regulations, 1957 exempts the categories in the Annexure to the said Regulations insofar as the posts for which the consultation with the Kerala Public Service Commission is not required.
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Secretary/Additional Private Secretary and other officials in the personal staff are handling sensitive matters and most of the information received by them are of confidential nature and therefore, they need to enjoy the fullest confidence of the elected executives like Ministers/Leader of Opposition/Government Chief Whip and hence, an element of personal choice is inevitable for reposing full confidence on the Private Secretaries. However, the same cannot be considered as whimsical and capricious for the reason that the action of the staff will reflect on the office of the Ministers/Leader of Opposition and Government Chief Whip and the same is always under public scrutiny.
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conferred under Article 309 of the Constitution of India; that the Government is competent to frame rules in exercise of the powers conferred under Article 309 of Constitution of India; and the Special Rules framed by the Government stood the test of the time from 1959 to 2022 and therefore, the challenge against the Special Rules at this distance of time is legally untenable.
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of appointment to personal staff, which is the broader contention.
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staffs in accordance with Annexure I of the Pay Revision Order. It is only a revision of pay and there is nothing illegal in it, it is contended.
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purview of the Bombay Civil Service Rules. The Apex Court has also held that clause (2) of Article 310 recognise the power of President/Governor to appoint a person to a Civil post on contract basis, if it is necessary to secure the service of a person having specific qualification.
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any manner, is the sum and substance of the contention. The Courts cannot assume to itself a supervisory role over the rule making power of the executive under Article 309 of the Constitution of India as has been so held by the Hon’ble Supreme Court in
Mallikarjuna Rao and others Vs. State of Andhra Pradesh and others in ((1990) 2 SCC 707). Therefore, the Special Rules made under Article 309 of the constitution prescribing the method of recruitment to the posts falling under the category of personal staff is unassailable on all or any of the grounds raised in the writ petition.
Hemraj Vs. Lft. Governor. Administrator. Union Territory (1971) 2 SCC 747, State of Himachal Pradesh Vs. A parent of a student of Medical College (1985) 3 SCC 169 and Asif Hameed Vs. State of Jammu & Kashmir (1989) Supp. 2 SCC
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| Sl. | Portfolio | Number of | |
|---|---|---|---|
| No. | directly recruited | ||
| personal staff | |||
| members | |||
| 1. | Chief Minister | 22 | |
| 2. | Water Resources | 16 |
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| 3. | Transport | 17 |
|---|---|---|
| 4. | Food and Civil Supplies | 17 |
| 5. | Law and Industries | 14 |
| 6. | Public Works and Tourism | 17 |
| 7. | Sports | 18 |
| 8. | Cooperation and Registration | 15 |
| 9. | General Education and Labour | 18 |
| 10. | Finance | 15 |
| 11. | Revenue and Housing | 17 |
| 12. | Electricity | 15 |
| 13. | Animal Husbandry | 17 |
| 14. | Forest and Wildlife Protection | 13 |
| 15. | Agriculture | 16 |
| 16. | LSGD | 18 |
| 17. | Fisheries & Culture | 19 |
| 18. | Health and Family Welfare | 18 |
| 19. | Higher Education and Social Justice | 17 |
| 20. | SC/ST and Devaswoms | 18 |
| 21. | Ports and Museums | 18 |
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successively amended in terms of the proviso to Article 309 of the Constitution of India.
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G.O. (Ms.) No. 343 dated 03.03.1959, wherein the Governor of Kerala, in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, made Special Rules concerning personal staff of the Ministers and the Opposition Leader, and successive amendments were made to the said Special Rules, also incorporating the Chief Whip of the Assembly. Contentions are advanced by the respective counsel as per facts and law narrated above.
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Orders’, stipulates that the General Rules and Orders applicable to holders of posts in the Kerala Secretariat Service or the Kerala Secretariat Subordinate Service or the Kerala Last Grade Service shall not apply to the posts specified in Rule 1, except to the extent specified in the Special Rules.
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appointed in any post in the personal staff of Ministers or the Leader of Opposition shall not be regarded as a probationer in the Kerala Secretariat Service or the Kerala Secretariat Subordinate Service or in any other service and his appointment as such shall not confer on him any claim for future appointment to any of the services under the State Government, and that he may, however, be granted increment in the scale in which he is appointed unless it is withheld.
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amount of terminal gratuity and the actual period of service, including all kinds of leave with or without allowance, but excluding the periods of break, to count for gratuity under the Rule. Other situations are also provided thereunder.
the Secretariat Service and the Government Departments, as the case may be. Note 2 of Rule 4A specifies that the qualification prescribed under Rule 4A may be relaxed in deserving cases.
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family pension etc. Thereafter, various amendments were introduced during the year 2012 granting various benefits to the personal staff completing the qualifying service for pension such as commutation etc.
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Annexure to the Regulations, 1957 and other posts in respect of which the Government may with the concurrence of the Commission, direct that appointments may be made without reference to the Commission.
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violative of Articles 14 and 16 of the Constitution of India. However, it is clear from the Annexure that exclusion is given to 17 categories insofar as the State Service is concerned; and insofar as the Subordinate Service is concerned, 27 categories are given exemption. It is also quite clear and evident from the Annexure that amendments were made to the Annexures time and again incorporating various categories to secure exemption from consultation with the Public Service Commission.
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that by virtue of the imperative conditions mandated under Article 14, the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. So also, contentions are advanced on the basis of Article 16 dealing with ‘equality of opportunity in matters of public employment’ and it is submitted that all citizens are entitled to equality of opportunity in the matters relating to employment or any appointment to any office under the State.
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of service of persons appointed, to public services and posts in connection with the affairs of the State of Kerala and in force immediately before the 17th September, 1968, shall be deemed to have been made under the Act and shall continue to be in force unless and until they are superseded by rules made under the Act. Which thus means, the Special Rules, 1959 was also regularised by virtue of Section 3 of the Act 1968.
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respects the all-India services and also as respects other services and posts in connection with the affairs of the Union, and the Governor as respects other services and posts in connection with the affairs of a State, may make regulations specifying the matters in which either generally, or in any particular class of case or in any particular circumstances, it shall not be necessary for a Public Service Commission to be consulted.
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of the Rule shows that there are 20 categories of the personal staff included in the Special Rules as early as on 03.03.1959, but the activities of the Government have considerably increased during the course of time. Moreover, we are of the view that such a Special Rule was constituted and amended successively to ensure that Ministers, the Leader of the Opposition, and the Chief Whip may have to carry on their activities, in political, administrative, and official, by reposing confidence in such persons, and maintaining utmost confidentiality and secrecy.
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Service seems attractive; fact remains, in order to repose confidence, faith and trust, there may be circumstances where recruitments have to be made directly in terms of the proviso to Rule 4 of the Special Rules. Therefore, the special cases propounded in the proviso to Rule 4 of Rules 1959 could only be the aspects deliberated above. In that view of the matter, it cannot be said that only if the appointments are unable to be made from among the full members or approved probationers in the Kerala Secretariat Service or the Kerala Secretariat Subordinate Service or by recruitment by transfer from any other services, including the recruitment from the service of local authority, it can be made by direct recruitment.
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made to the personal staff. Which thus also means, without personal knowledge and satisfaction, such appointments can be made. Moreover, the State is vested with powers under entries 41 and 42 to make laws for the public services, State public Service Commission, and for the payment of pension etc.
“12. There is a presumption in favour of constitutionality or validity of a sub-ordinate Legislation and the burden is upon him who attacks it to show that it is invalid. It is also well recognized that a sub- ordinate legislation can be challenged under any of the following grounds :-
a) Lack of legislative competence to make the subordinate legislation.
b) Violation of Fundamental Rights guaranteed under the Constitution of India.
c) Violation of any provision of the Constitution of
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India.
d) Failure to conform to the Statute under which it is made or exceeding the limits of authority conferred by the enabling Act.
e) Repugnancy to the laws of the land, that is, any enactment .
f) Manifest arbitrariness/unreasonableness.”
upon the judgments of the Apex Court in Secretary, State of Karnataka and others v. Umadevi (3) and others [2006(4) SCC 1]; State of U.P and another v. Ram Gopal Shukla [[(1981) 3 SCC 1]; and State of Bihar V Upendra Narayanan Singh and others (2009) 5 SCC 65 to drive home the points raised by the petitioners in the writ petition regarding the violation of Articles 14 and 16. So also, learned Senior Advocate Sri. M. R. Rajendran Nair has relied upon the judgments of the Apex Court in Renu and others V. District and Sessions Judge, Tis Hazari, Delhi and another [(2014) 14 SCC 50] State of Orissa and another v. Mamata Mohanty [(2011) 3 SCC 436] and Ramit Singh Kardam and others v. Sanjeev Kumar and others [(2020) 20 SCC 209] in respect of adherence to Articles 14 and 16, the eligibility criteria/conditions and recruitment process; and submitted that the phraseology
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'recruitment employed in the Special Rules is a process by itself and unless and until sufficient publicity is given to the appointments to be made, it violates Articles 14 and 16 of the Constitution of India. Learned counsel Sri C. Rajendran and Sri Sethunath have advanced arguments resulting to the dictionary meaning of the word ‘recruitment’ and the implication of Article 309 of the Constitution of India.
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that even though an attempt is made to impress upon this Court that pension is provided to the personal staffs having service of two years and above as per the Special Rules, even the general Rules for pension concerning permanent employees were successively amended and as of now, minimum pension is provided to the employees of the State Services and Subordinate services below the minimum service qualification of ten years, and up to two years of service, and therefore, there is no discrimination, arbitrariness or illegality insofar as the payment of pension to the person to the personal staffs recruited by the Ministers etc. is concerned.
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pay and work there have to be equal conditions of service. So far as the first proposition is concerned it has been definitely ruled out by this Court in Kishori Mohanlal v. Union of India, AIR 1962 SC 1139. Das Gupta, J. speaking for the Court said:
"The only other contention raised is that there is discrimination between Class I and Class II officers inasmuch as though they do the same kind of work their pay scales are different. This, it is said, violates Art. 14 of the Constitution. If this contention had any validity, there could be no incremental scales of pay fixed dependent on the duration of an officers service. The abstract doctrine of equal pay for equal work has nothing to do with Art. 14. The contention that Art. 14 of the Constitution has been violated, therefore, also fails.
The second also, is, in our opinion, unsound. If, for instance, an existing service is recruited on the basis of a certain qualification, the creation of another service for doing the same work, it might be in the same way but with better prospects of promotion cannot be said to be unconstitutional, and the fact that the rules framed permit free transfers of personnel of the two groups to places held by the other would not make any difference. We are not basing this answer on any theory that if a Government servant enters into any contract regulating the conditions of his service he cannot call in aid the constitutional guarantees because he is bound by his contract. But this conclusion rests on different and wider public grounds, viz., that the Government which is carrying on the administration has necessarily to have a choice in the constitution of the services to man the administration and that the limitations imposed by the constitution are not such as to preclude the
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creation of such services. Besides, there might for instance, be a temporary recruitment to meet an exigency or an emergency which is not expected to last for any appreciable period of time. To deny to the Government the power to recruit temporary staff drawing the same pay and doing the same work as other permanent incumbents within the cadre strength but governed by different rules and conditions of service, it might be including promotions, would be to impose restraints on the manner of administration which we believe was not intended by the Constitution. For the purpose of the decision of this appeal the question here discussed is rather academic but we are expressing ourselves on it in view of the arguments addressed to us.”
Member Constitution Bench in Ram Krishna Dalmia v. S.R.
Tendolkar [AIR 1958 SC 538], which considered the intricacies of Article 14 taking into account various judgments of the Apex Court and held as follows:
'11. The principal ground urged in support of the contention as to the invalidity of the Act and/or the notification is founded on Art. 14 of the Constitution. In Budhan Choudhry v. The State of Bihar, 1955-1 S C R 1045 : ((S) A I R 1955 S C 191) (A) a Constitution Bench of seven Judges of this Court at pages 1048-49 (of S C R) : (at p. 193 of A I R) explained the true meaning and scope of Art. 14 as follows :
"The provisions of Art. 14 of the Constitution have come up for decision before this Court in a number of cases, namely, Chiranjit Lal v. Union of India, 1950 S C
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R 869 : ( A I R 1951 S C 41) (B), State of Bombay v. F. N. Balsara, 1951 S C R 682 : ( A I R 1951 S C 318) (C), State of West Bengal v. Anwar Ali Sarkar, 1952 S C R 284 : (A I R 1952 S C 75) (D), Kathi Raning Rawat v. State of Saurashtra, 1952 S C R 435 : (AIR 1952 S C 123) (E), Lachmandas Kewalram v. State of Bombay, 1952 S C R 710 : (A I R 1952 S C 235) (F), Qasim Razvi v. State of Hyderabad, 1953 S C R 589 : (AIR 1953 S C 156) (G) and Habeeb Mohammad v. State of Hyderabad, 1953, S C R 661 : AIR 1953 S C 287) (H). It is, therefore, not necessary to enter upon any lengthy discussion as to the meaning, scope and effect of the article in question. It is now well established that while Art. 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely, (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and (ii) that that differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification may be founded on different bases, namely, geographical, or according to objects or occupations or the like. What is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration. It is also well established by the decisions of this Court that Art. 14 condemns discrimination not only by a substantive law but by a law of procedure.”
The principle enunciated above has been consistently adopted and applied in subsequent cases. The decisions of this Court further establish -
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: 53 :
(a) that a law may be constitutional even though it relates to a single individuals if, on account of some special circumstances or reasons applicable to him and not applicable to others, that single individual may be treated as a class by himself ;
(b) that there is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles ;
(c) that it must be presumed that the Legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds ;
(d) that the legislature is free to recognise degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest
(e) that in order to sustain the presumption of constitutionality the Court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation ; and
(f) that while good faith and knowledge of the existing conditions on the part of a Legislature are to be presumed, if there is nothing on the face of the law or the surrounding circumstances brought to the notice of the Court on which the classification may reasonably be regarded as based, the presumption of constitutionality cannot be carried to the extent of always holding that
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there must be some undisclosed and unknown reasons for subjecting certain individuals or corporations to hostile or discriminating legislation.
The above principles will have to be constantly borne in mind by the Court when it is called upon, to adjudge the constitutionality of any particular law attacked as discriminatory and violative of the equal protection of the laws.
(1) A statute may itself indicate the persons or things to whom its provisions are intended to apply and the basis of the classification of such persons or things may appear on the face of the statute or may be gathered from the surrounding circumstances known to or brought to the notice of the Court. In determining the validity or otherwise of such a statute the Court has to examine whether such classification is or can be reasonably regarded as based upon some differentia which distinguishes such persons or things grouped together from those left out of the group and whether such differentia has a reasonable relation to the object sought to be achieved by the statute, no matter whether the provisions of the statute are intended to apply only to a particular person or thing or only to a certain class of persons or things. Where the Court finds that the classification satisfies the tests, the Court will uphold the
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validity of the law, as it did in Chiranjitlal v. Union of India (B) (supra). State of Bombay v. F. N. Balsara (C) (supra), Kedar Nath Bajoria v. State of West Bengal, 1954 S C R 30 : ( A I R 1953 S C 404) (I), V. M. Syed Mohammad and Company v. State of Andhra, 1954 S C R 1117 : ( A I R 1954 S C 314) (J) and Budhan Choudhury v. State of Bihar (A) (supra).
(iii) A statute may direct its provisions against one individual person or things or to several individual person or things but no reasonable basis of classification may appear on the fact of it or be deducible from the surrounding circumstances; or matters of common knowledge. In such a case the Court will strike down the law as an instance of naked discrimination, as it did in Ameerunnissa Begum v. Mahboob Begum, 1953 S C R 404 : (A I R 1953 S C 91) (K) and Ram Prasad Narain Sahi v. State of Bihar, 1953 S C R 1129 : (A I R 1953 S C 215) (L).
(iii) A statute may not make any classification of the persons or things for the purpose of applying its provisions but may leave it to the discretion of the Government to select and classify persons or things to whom its provisions are to apply. In determining the question of the validity or otherwise of such a statute the Court will not strike down the law out of hand only because no classification appears on its face or because a discretion is given to the Government to make the selection or classification but will go on to examine and ascertain if the statute has laid down any principle or policy for the guidance of the exercise of discretion by the Government in the matter of the selection or classification. After such scrutiny the Court will strike
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down the statute if it does not lay down any principle or policy for guiding the exercise of discretion by the Government in the matter of selection or classification, on the ground that the statute provides for the delegation of arbitrary and uncontrolled power to the Government so as to enable it to discriminate between persons or things similarly situate and that, therefore, the discrimination is inherent in the statute itself. In such a case the Court will strike down both the law as well as the executive action taken under such law, as it did in State of West Bengal v. Anwar Ali Sarkar (D) (supra), Dwarka Prasad v. State of Uttar Pradesh, 1954 S. C. R. 803 : (AIR 1954 S C 224) (M) and Dhirendra Kumar Mandal v. Superintendent and Remembrancer of Legal Affairs, 1955-1 S C R 224 : (A I R 1954 S C 242) (N).
(iv) A statute may not make a classification of the persons or things for the purpose of applying its provisions and may leave it to the discretion of the Government to select and classify the person or things to whom its provisions are to apply but may at the same time lay down a policy or principle for the guidance of the exercise of discretion by the Government in the matter of such selection or classification; the Court will uphold the law as constitutional, as it did in Kathi Raning Rawat v. The State of Saurashtra (E) (supra).
v) A statute may not make a classification of the persons or things to whom their provisions are intended to apply and leave it to the discretion of the Government to select or classify the persons or things for applying those provisions according to the policy or the principle laid down by the statute itself for guidance to the exercise of discretion by the Government in the matter
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of such selection or classification. If the Government in making the selection or classification does not proceed on or follow such policy or principle, it has been held by this Court. e. g., in Kathi Raning Rawat v. The State of Saurashtra (E) (Supra) that in such a case the executive action but not the statute should be condemned as unconstitutional.
In the light of the foregoing discussions the question at once arises : In what category does the Act or the notification impugned in these appeals fall ?”
Court in Alex Beets v. M.A. Urmese and another [AIR 1970 Ker. 312] and Pankajakshy & others v. George Mathew & others [1987 (2) KLT 723] to canvass the proposition that when a policy decision is taken by the Government with respect to the appointment of the personal staff of the Ministers etc. in order to serve the purpose of confidentiality, trust and confidence, the court may not sit over the wisdom of the legislature.
Master’s Association [AIR 1960 SC 384], which explained the intricacies of Article 16 of the Constitution of India and it is held
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at paragraph 8 thus:
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Special Rules were made to meet up with the requirements of the Ministers and others to carry on with the administration of the Government by reposing utmost confidence in the personnel staff in the matter of taking various decisions and policy decisions, by maintaining, retaining and sustaining secrecy and confidentiality.
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advanced that there was no consultation with the Public Service Commission, cannot be sustained under law.
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the family pension of Rs.1100/-.
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public interest. Looking from that angle, it cannot be said that the Special Rules, 1959 suffers from any vice of illegality and arbitrariness to interfere with the principles of law adumbrated in Articles 14 and 16 of the Constitution of India. Even though much was argued about the word “recruitment” that it is a process to be undertaken by evolving a transparent procedure; in reference to various dictionaries, it only means “the action or practice of recruiting for employment.” That is to say, with the mere employment of the word 'recruitment' in the Rules 1959, it cannot be legally presumed that a selection process is to be carried out by adopting a selection procedure as is done in the case of general recruitment for permanent posts to support the governance and administration generally. We are also of the view that good governance relates to the political and institutional process that are necessary and vitally required to protect the interest of the citizens in common and to achieve the goals of development. Therefore, to attain good governance and good practices in civil, cultural, economic, political, justice, social right, accountability, etc., the Government in power has to modulate its activities and discharge its functions, taking into account its political theories, election manifesto, and perceptions. For that, it must have a good and loyal team to its satisfaction producing results that meet the needs of the community at large, and to
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provide timely instructions and guidance from the political and social angle.
Needless to say, writ petitions fail and accordingly, they are dismissed. Before, we part with the judgment, we observe that it is always desirable to have a cadre strength to serve the Chief Minister, Minister, Leader of Opposition and the Chief Whip.
sd/- S. MANIKUMAR, CHIEF JUSTICE.
sd/-
SHAJI P. CHALY, JUDGE.
Rv
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APPENDIX OF WP(C) 9420/2021
PETITIONER’S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE BYE LAWS AND CERTIFICATE OF REGISTRATION OF FIRST PETITIONER. EXHIBIT P2 A TRUE COPY OF GO(MS) 343 DATED 3/3/1959 AS AMENDED FROM TIME TO TIME. EXHIBIT P3 A TRUE COPY OF LETTER NO. ACC.C5/22/19/PAD DATED 3/5/2019 ALONG WITH THE ENGLISH TRANSLATION. EXHIBIT P4 TRUE COPY OF THE LETTER NO. 16761/AC.C.3/2012/LEGI. DATED 19/7/2012 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P5 A TRUE COPY OF THE REPRESENTATION DATED 4.7.2019 ALONG WITH ITS TRUE ENGLISH TRANSLATION. EXHIBIT P6 A TRUE COPY OF THE ORDER NO. SH 3/189/2019-GAD DATED 11/3/2020 ISSUED BY THE FIRST RESPONDENT ALONG WITH ITS TRUE ENGLISH TRANSLATION. EXHIBIT P7 A TRUE COPY OF G.O.(RT) NO.1578/2021/GAD DATED 17.4.2021. EXHIBIT P7 TRUE COPY OF G.O.(Rt.) NO.1578/2021/GAD DATED 17.04.2021.
RESPONDENTS’ EXHIBITS:
EXT.R1(a): G.O.(Rt.) NO. 7036/2011/GAD DATED 16.09.2011.
True Copy
PS to Judge.
rv
W.P.(C) No. 9420/2021 & batch : 65 :
APPENDIX OF WP(C) 10400/2021
PETITIONER’S EXHIBITS:
| EXHIBIT P1 | A TRUE PHOTO COPY OF THE GOVERNMENT ORDER NO. G.O(MS) NO. 343 DATED 3.3.1959. |
|---|---|
| EXHIBIT P2 | A TRUE PHOTO COPY OF THE KERALA PUBLIC SERVICE COMMISSION (CONSULTATION) REGULATION,1957 WITH AMENDMENTS. |
| EXHIBIT P3 | A TRUE PHOTOCOPY OF THE NOTIFICATION OF SPECIAL RULES DATED 23.09.1994. |
| EXHIBIT P4 | A TRUE PHOTOCOPY OF THE REPLY WITH NAME POST AND SALARIES OF THE EMPLOYEES UNDER THESE MINISTERS BY STATE PUBLIC INFORMATION OFFICER. |
| EXHIBIT P5 | A TRUE PHOTOCOPY OF THE CODE OF CONDUCT. |
| EXHIBIT P6 | A TRUE PHOTOCOPY OF THE GOVERNMENT ORDER NO. GO(RT) 1578/2021/GAD DATED 17.04.2021. |
RESPONDENTS’ EXHIBITS:
EXT.R1(a) : G.O. (Rt.) NO. 7036/2011/GAD DATED 16.09.2011.
True Copy
PS To Judge.
rv
W.P.(C) No. 9420/2021 & batch : 66 :
APPENDIX OF WP(C) 10661/2022
PETITIONER’S EXHIBITS: Exhibit P1 ORDER DATED 15.7.2021 FROM THE OFFICE OF THE PRINCIPAL ACCOUNTANT GENERAL KERALA
RESPONDENTS’ EXHIBITS: NIL
True Copy
PS To Judge.
rv
W.P.(C) No. 9420/2021 & batch : 67 :
APPENDIX OF WP(C) 8015/2022
PETITIONER’S EXHIBITS:
Exhibit P1 THE TRUE COPY OF THE GO (MS) NO.343 DATED 3.3.1959 ISSUED BY THE GOVERNMENT OF KERALA. Exhibit P2 THE TRUE COPY OF THE GO (MS) NO.109/89/GAD DATED 26.04.1989. Exhibit P3 THE TRUE COPY OF THE GO (MS) NO.283/94/GAD DATED 23.09.1994. Exhibit P4 THE TRUE COPY OF THE GO (MS) NO. 430/97/GAD DATED13.11.1997. Exhibit P5 THE TRUE COPY OF THE GO (MS) NO. 461/2007/FIN DATED 25.09.2007. Exhibit P6 THE TRUE COPY OF THE GO (MS) NO.297/2012/FIN DATED 23.05.2012. Exhibit P7 THE TRUE COPY OF THE GO (MS) NO.143/2012/GAD DATED 12.06.2012. Exhibit P8 THE TRUE COPY OF THE GO (MS) NO. 116/2016/FIN DATED 15.08.2016. Exhibit P9 THE TRUE COPY OF THE GO (MS) NO.83/2018/GAD DATED 14.04.2018 (ALONG WITH ENGLISH TRANSLATION). Exhibit P10 THE TRUE COPY OF THE GO (MS) NO.425/2018/FIN DATED 10.11.2018(ALONG WITH TRANSLATION. Exhibit P11 THE TRUE COPY OF THE GO (MS) NO.36/2021/FIN DATED 23.02.2021. Exhibit P12 THE TRUE COPY OF THE GO (ORD) NO.709/2021/PWD DATED 05.08.2021 (ALONG WITH ENGLISH TRANSLATION). Exhibit P13 THE TRUE COPY OF THE GO (RT) NO.1238/2010/PWD DATED 30.07.2010. Exhibit P14 THE TRUE COPY OF THE OFFICE MEMORANDUM NO.8/50/2013-CS-II-C DATED 26.05.2014. RESPONDENTS’ ANNEXURES: Annexure R2(a) A true copy of the details of personal staff receiving pension under family pension. Annexure R2(b) A true copy of GO(P) No.16/2021 GAD dated 24.02.2021
True Copy
PS To Judge.
Rv
W.P.(C) No. 9420/2021 & batch : 68 :
APPENDIX OF WP(C) 13181/2022
| PETITIONER’S EXH | IBITS: |
|---|---|
| Exhibit P1 | TRUE COPY OF THE GO(MS) NO. 343 ISSUED BY THE PUBLIC DEPARTMENT (RULES), DATED 03.03.1959. |
| Exhibit P2 | TRUE COPY OF GO(MS) NO.109/89/GAD DATED 26.04.1989, |
| Exhibit P3 | TRUE COPY OF GO(MS) NO.283/94/GAD DATED 23.09.1994. |
| Exhibit P4 | TRUE COPY OF GO(MS) NO.430/97/GAD DATED 13.11.1997. |
| Exhibit P5 | TRUE COPY OF GO(MS) NO.143/2012 DATED 12.06.2012. |
| Exhibit P6 | TRUE COPY OF GO(P) NO.297/2012 FIN DATED 23.05.2012. |
| Exhibit P7 | TRUE COPY OF GO(P) NO.36/2021/FIN DATED 23.02.2021 ISSUED BY THE 3RD RESPONDENT. |
| Exhibit P8 | TRUE COPY OF THE NEWS ITEM CARRIED IN THE NEW INDIAN EXPRESS DATED 04.06.2021. |
| Exhibit P9 | TRUE COPY OF THE REPORT APPEARED IN MALAYALA MANORAMA ONLINE DATED 22.02.2022. |
| Exhibit P10 | TRUE COPY OF THE MATHRUBHOOMI ONLINE REPORT PUBLISHED ON 12.02.2022. |
| Exhibit P11 | TRUE COPY OF THE NEWS ITEM PUBLISHED BY THE NEW INDIAN EXPRESS DATED 19.02.2022. |
RESPONDENTS’ EXHIBITS: NIL
True Copy
PS To Judge.
rv
3 issues framed by the court
Do the Special Rules permitting personal selection and direct recruitment of ministerial personal staff violate Articles 14 and 16?
Are the exemptions from Public Service Commission consultation for gazetted and subordinate personal staff unconstitutional?
Are pension and family pension benefits for directly recruited personal staff arbitrary or discriminatory?
Colour shows how this judgement treated each authority
State of Gujarat and another Vs. P.J Kampavat and othersReferred¶174
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Mallikarjuna Rao and others Vs. State of Andhra Pradesh and othersReferred¶181
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Narinder Chand Hemraj Vs. Lft. Governor. Administrator. Union TerritoryReferred¶183
(1971) 2 SCC 747 · Who else cites this
State of Himachal Pradesh Vs. A parent of a student of Medical CollegeReferred¶183
(1985) 3 SCC 169 · Who else cites this
Asif Hameed Vs. State of Jammu & KashmirReferred¶183
(1989) Supp. 2 SCC · Who else cites this
State of T.N and another v. P. Krishnamurthy and othersDistinguished¶263
[AIR 2006 SC 1622] · Who else cites this
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[2006(4) SCC 1] · Who else cites this
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[[(1981) 3 SCC 1] · Who else cites this
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[(2014) 14 SCC 50] · Who else cites this
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[(2020) 20 SCC 209] · Who else cites this
State of Punjab v. Joginder SinghRelied on¶281
[AIR 1963 SC 913] · Who else cites this
Ram Krishna Dalmia v. S.R. TendolkarRelied on¶291
[AIR 1958 SC 538] · Who else cites this
State of Mysore v. P. Narasinga RaoReferred¶321
[AIR 1968 SC 349] · Who else cites this
Alex Beets v. M.A. Urmese and anotherReferred¶322
[AIR 1970 Ker. 312] · Who else cites this
Pankajakshy & others v. George Mathew & othersReferred¶322
[1987 (2) KLT 723]
All India Station Masters’ & Assistant Station Master’s AssociationRelied on¶324
[AIR 1960 SC 384] · Who else cites this
Union of India and another v. T.V. PatelReferred¶331
[(2007) 4 SCC 785] · Who else cites this
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[(2007) 4 SCC 502] · Who else cites this
10 provisions across 4 enactments
ANTI-CORRUPTION PEOPLES MOVEMENT
STATE OF KERALA
KERALA PUBLIC SERVICE COMMISSION
T. VELAYUDHAN
C.M. RAVINDRAN
CITIZEN’S ASSOCIATION FOR DEMOCRACY EQUALITY TRANQUILITY AND SECULARISM
S.MANIKUMAR
SHAJI P.CHALY
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
