Kerala State and Subordinate Services Rules – Rule 39 of Part II – Whether invocation of power of the Government under Rule 39 of Part II of the Rules is to be done as a matter of course, without considering whether it is for a just and equitable reason as mandated in the very same Rule itself ? Held, the power cannot be exercised capriciously or arbitrarily, to give undue advantage or favour to an individual employee.
P.R.RAMACHANDRA MENON & ANIL K.NARENDRAN, JJ.
O.P.(KAT)No.364 of 2015
Dated this the 12th day of July, 2016
AGAINST THE ORDER/JUDGMENT IN OA(EKM) 393/2015 of KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM DATED 21-05-2015
DINESH SHANKAR N.T., DEPUTY RANGE FOREST OFFICER, PERIA FOREST RANGE, KUNHOME FOREST STATION, NORTH WAYANAD DIVISION, MATTILAYAM POST, VELLUMUNDA, MANANTHAVADY, WAYANAD DISTRICT 670 731.
BY ADVS.SRI.S.PRASANTH SMT.VARSHA BHASKAR
1. THE STATE OF KERALA, REPRESENTED BY ITS PRINCIPAL SECRETARY, FOREST AND WILD LIFE (F) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.
2. PRINCIPAL CHIEF CONSERVATOR OF FORESTS, FOREST HEADQUARTERS , VAZHUTHACADU, THIRUVANANTHAPURAM-695 010.
3. THE KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, KERALA PUBLIC SERVICE COMMISSION OFFICE, PATTOM, THIRUVANANTHAPURAM 695 004.
4. ANIL KUMAR P.P., RANGE FOREST OFFICER, MUNNAR FLYING SQUAD RANGE, MARAYOOR, MARAYOOR P.O, IDUKKI 685 620
R4 BY ADV. SRI.BABU PAUL R2 BY SR. GOVERNMENT PLEADER SRI.MOHAMMED SHAFI BY SRI.P.C.SASIDHARAN, SC, KPSC
Ramachandra Menon, J.
Whether invocation of power of the Government under Rule 39 of Part II of the Kerala State and Subordinate Services Rules is to be done as a matter of course, without considering whether it is for a just and equitable reason as mandated in the very same Rule itself, forms the subject matter of consideration in this Original Petition. This gathers more momentum in the light of the fact that the person concerned to whom such benefit is given by the Government (the 4 th respondent) by invoking such Rule has already suffered three different judgments (before the Single Bench and Division Bench of this Court and also before the Supreme Court) who lost the battle through out; but still came to be accommodated by the Government, after dispensing with the basic requirement of sending for training for 2½ years.
2. The beneficiary (4 th respondent) was not even called for any interview by the PSC, because of non-satisfaction of the required qualification as notified by the PSC for selection in respect of the physical measurements. Interference declined by the Kerala Administrative Tribunal with regard to the challenge raised against the appointment given to the 4 th respondent in the above regard and declining the relief for the petitioner (the applicant) to have him appointed in the place of the 4 th respondent made him feel aggrieved and hence the Original Petition.
3. Heard Sri.Prasanth.S., the learned counsel appearing for the petitioner, Sri.P.C.Sasidharan, the learned Standing Counsel for the PSC, Sri.M.Mohammed Shafi, the learned Government Pleader appearing for the State and Mr.P.Deepak, the learned counsel who entered appearance on behalf of the 4 th respondent (stated as instructed by Sri.Babu Paul, the learned lawyer who has filed vakalath for the 4 th respondent).
4. Challenge is against Ext.P3 order passed by the Tribunal in O.A.No.393/2015, which was filed with the following prayers:-
i. to declare that the 4 th respondent is not entitled for appointment as Range Forest Officer under the FTR quota in violation of the Special Rules and by passing the Public Service Commission and there is no circumstance existing for invoking Rule 39 of the KS & SSR by the Government in favour of the 4 th respondent disregarding Annexure.A4 to A7 Orders/Judgments of the Hon’ble High Court and Hon’ble Supreme Court;
ii. to call for the records leading to Annexure.A16, A20, A21 and A25 and to set aside the same.
iii. to issue appropriate direction or order, directing the respondents 1 to 3 to appoint the applicant as Range Forest Officer replacing the 4 th respondent under the FTR quota with effect the date of appointment of the 4 th respondent as Range Forest Officer.
5. The sequence of events reveals that both the petitioner as well as the 4 th respondent were working as the Deputy Forest Rangers in the Forest Department. They were aspirants to the post of Forest Range Officer which is situated in the next higher level, in the hierarchy. The PSC invited applications from eligible hands and a notification was issued in the year 2005. Qualifications, both academic as well as the physical requirements, were clearly mentioned in the said notification. Both the petitioner and the 4 th respondent had applied for the post and after completion of the process of selection, the PSC published Annexure.A1 select list wherein the name of the petitioner was placed at Serial No.22. The 4 th respondent was never given a placement in the select list for the fact that, when the physical measurement was taken, his chest measurement was only ’82 cms.’, whereas the notification clearly insisted that the chest measurement should be ’84 cms.’ with further expansion of 5 cms. As a result of this, the 4 th respondent was not called for the interview and in turn did not get placement in Annexure.A1 select list.
6. As a matter of fact, for giving promotion to the post of Forest Range Officer, it was very much essential to have sent the eligible candidates for training; which was for a span of 2½ years. Originally, considering the available number of vacancies, 21 persons from Annexure.A1 list were sent for training and the next turn was that of the petitioner. The petitioner approached this Court by filing W.P.(C)No.8324/2006 seeking for a direction to send him for training in respect of the anticipated vacancy, but interference was declined and the Writ Petition was dismissed as per Annexure.A2 judgment dated 20.8.2010. The petitioner sought to challenge the same by filing W.A.No.65/2011, wherein also interference was declined and the appeal was dismissed as per Annexure.A3 on 5.1.2012. The rank list expired on 24.5.2006 and the proceedings came to rest for the time being. While so, the petitioner came to note that the person placed at Serial No.9 had not completed the training, which resulted in a vacancy; which slot was sought to be filled up by nominating the petitioner. It was accordingly, that a representation was preferred by him, which however was turned down stating that the rank list had already expired.
7. Coming to the case of the 4 th respondent as mentioned already, he was never given a placement in Annexure.A1 select list, having not even called for the interview, which was sought to be challenged by filing W.P.(C)No.5384/2010. The main contention raised was that the chest measurement was not correctly taken by PSC. It was accordingly that a direction was sought for to conduct a re-measurement by the PSC. Simultaneously, another contention was raised that, as per the relevant Rules/Norms, the requisite chest measurement was only to be ’79 cms’. The merit of the case was considered in detail and the challenge raised was repelled, dismissing the W.P.(C) No.7569/2006, as per Annexure.A4 judgment dated 14.2.2007. This was taken up in appeal by the 4 th respondent as per W.A.No.885/2007, wherein also interference was declined and the appeal came to be dismissed as per Annexure.A5. The 4 th respondent took a further chance by moving the Apex Court; but the SLP came to be dismissed as per Annexure.A6. Still further, the 4 th respondent moved the Apex Court by way of a ‘curative petition’, which also ended up in dismissal, as borne by Annexure.A7 dated 3.12.2009. The matter had become final accordingly. 8. It was in the meanwhile, that the 4 th respondent came across the amendment of the Entrance and Training Rules (revised) 2004, whereby the requisite chest measurement of ’84 cms’. came to be reduced to ’79 cms.’ with effect from 10.1.2006 (Annexure.R4(A)). It was pointed out that, though the written test was conducted pursuant to notification issued before the amendment, by the time the chest measurement was taken, the amendment had already come into existence and in the said circumstance, the Government was moved by way of Annexure.A8 representation seeking to invoke the power and procedure under Rule 39 of the Kerala State and Subordinate Services Rules and to promote the 4 th respondent to the post in question. On receipt of the said representation, the views of the PSC were called for; upon which the PSC reported in categorical terms as per Annexure.A12, that there was absolutely no merit and the same did not require any re-consideration being not a fit case where Rule 39 was to be invoked. Still, the Government proceeded further and passed Annexure.A16 Government Order dated 13.5.2013, invoking the power under Rule 39 of the Kerala State and Subordinate Services Rules and directed promotion to be given to the 4 th respondent. Subsequently, another order was passed by the Government on 23.8.2013 by way of Annexure.A20; invoking the power under Rule 39 of the Kerala State and Subordinate Services Rules again, and exempting the 4 th respondent from undergoing the mandatory training for being promoted as Forest Range Officer. Quite strangely, the reason was that he was having only a left over service of nearly 4½ years and if he was deputed for the mandatory training of 2½ years, no much service would be left out. Pursuant to Annexures.A16 and A20, the Principal Chief Conservator of Forest passed Annexure.A21 order dated 23.8.2013 granting the benefit to the 4 th respondent by way of promotion and dispensing with the mandatory training and such other formalities, which was to the chagrin of the petitioner who approached the Tribunal by filing O.A.No.393/2015, referring to the course and events.
9. After hearing both the sides, the Tribunal observed (particularly in paragraph 4) that two judgments were already standing against the applicant and as such there was absolutely no merit to call for interference. The concerned vacancy was not available during the subsistence of the rank list and as such, the applicant was not entitled to get any relief. It was further observed that, even if the appointment of the 4 th respondent invoking the power under Rule 39 of the Kerala State and Subordinate Services Rules was wrong, it could not be a ground for the applicant to contend that he should have been appointed against the post in question, in preference to the 4 th respondent. It was accordingly, that interference was declined and the O.A. was dismissed; which in turn is under challenge in this O.P.
10. During the course of hearing, the learned counsel for the petitioner points out that the orders passed by the Government are per se wrong and illegal in all respects. Though power is vested with the Government to meet the situation by virtue of Rule 39 of the Kerala State and Subordinate Services Rules (which of course contains a ‘non-obstante clause’), it is a matter of exception to the General Rule and that the power has to be exercised sparingly. Reliance is sought to be placed on the verdicts passed by two Division Bench of this Court as per decision reported in