Kerala High Court
Sugathan vs Shahul Hameed on 17 August, 2006
Equivalent citations: 2006(4)KARLJ54
Author: S. Siri Jagan
Bench: P.R. Raman, S. Siri Jagan
JUDGMENT S. Siri Jagan, J.
1. When these Writ Appeals came up for hearing before a Division Bench of this Court, the Division Bench perceived a conflict between two earlier Division Bench decisions, one in W.A. No. 1563/2001 and connected cases and the other in W.A. No. 424/2000, on the same issue, which is under consideration in these Writ Appeals. The Division Bench therefore chose to refer the matter for decision by a Full Bench. It is under the above circumstances that these Writ Appeals have come up for hearing before us.
2. The common issue involved in these cases is as to whether the Government Order, issued in G.O(Ms) No. 39/2001/TD dated 30-3-2001 ordering that, while applying the 1:1 ratio, now existing in the Kerala Excise and Subordinate Service Rules, for promotion to the category of Excise Preventive Officer from among Excise Guards possessing the minimum qualification of SSLC and those who do not possess SSLC qualification, a senior Excise Guard, who possesses the minimum educational qualification of pass in SSLC or its equivalent, shall not be superseded by a junior Excise Guard who does not possess the qualification of pass in SSLC examination or its equivalent has the effect of amending the Special Rules themselves and therefore unsustainable.
3. In these cases, W.A. No. 2302/2005 is filed by that category of Excise Guards who do not possess the qualification of SSLC. W.A. No. 1886/2005 is filed by those Excise Guards who do possess SSLC or equivalent qualification and W.A. 1665/2005 is filed by the State supporting the above said Government Order. The bare facts necessary for disposal of these Writ Appeals are as follows.
4. Under the Kerala Excise and Subordinate Service Rules, there are five categories of posts of which two are Excise Preventive Officer and Excise Guard. The method of recruitment to the post of Excise Preventive Officer is by direct recruitment or by promotion from Excise Guard. It is provided in the rules that every 4th substantive vacancy shall be filled or reserved to be filled by direct recruitment. The remaining vacancies are to be filled up by promotion from among Excise Guards possessing the minimum qualification of SSLC standard and those who do not possess this qualification in the ratio of 1:1. This ratio was subject matter of a long drawn out litigation, which ultimately ended in the decision of the Supreme Court in Chandran v. Board of Revenue reported in 1995 (1) KLT 12, in which the Supreme Court upheld the ratio. In spite of the Supreme Court decision, in the Excise Department, there continued to be a tendency to favour the SSLC group apparently overlooking the ratio. As a result, further litigation arose, which led to the decision of this Court in Gibson v. State of Kerala reported in 1997 (1) KLT 314, in which it was held that when a ratio is prescribed between two groups, both groups must be considered to be qualified and hence the ratio has to be followed subject to the other conditions prescribed under the rules regarding experience. This rule regarding experience, as it, originally stood, was that for promotion to the post of Excise Guards. SSLC holders should have 5 years' experience whereas those who do not possess SSLC qualification should have 15 years experience. Subsequently, this prescription was reduced to 3 and 7 years respectively which is the present prescription. The Single Bench decision in Gibson's case (supra) was confirmed by the Division Bench in W.A. No. 315/1997. It is understood that S.L.P filed against W.A. No. 315/1997 was also dismissed. Despite these decisions, there were still attempts at certain levels for giving preference to the group having SSLC or equivalent qualification, which resulted in O.P. No. 20075/1999 in which, following Gibson's case (supra), a learned Single Judge directed review of all promotions made without following the principles laid down in Gibson's case. The Division Bench dismissed W.A. No. 424/2000 filed against the said decision following the decision in Chandran's case (supra).
5. While matters stood thus. Government issued G.O(MS) No. 39/2001 referred to above, introducing a new condition, apparently favouring the SSLC group directing that while applying the ratio of 1:1, a senior Excise Guard who possesses the minimum educational qualification of pass in SSLC or its equivalent shall not be superseded by a junior Excise Guard, who does not possess the qualification of pass in SSLC examination or its equivalent. Some of the persons aggrieved by this Government Order, filed O.P. No. 12049/2001 and as per Ext. P9 judgment, a learned Single Judge held that the Government Order was only clarificatory in nature and does not interfere in any way with the Special Rules and that merely by virtue of the ratio prescribed, qualified seniors cannot be superseded. This decision was upheld by a Division Bench in W.A. No. 1563/2001 and connected cases. Following the said Division Bench decision, W.P.(C) No. 32503/2004 was dismissed holding that a senior SSLC Excise Guard cannot be superseded by a junior Excise Guard, who does not possess the SSLC qualification. It is from that decision, W.A. No. 2302/2004 arises.
6. In the meanwhile, without noticing the judgment in W.A. No. 1563/2001 and connected cases, a learned Single Judge disposed of O.P. No. 19406/2001 holding that the Government Order above said would have the effect of depriving the Excise Guards who do not possess SSLC qualification of their rightful promotion in terms of the ratio and therefore the Government Order effectively amends the Special Rules, which cannot be done by an executive order, as a result of which, the claim of the Excise Guards who do not possess SSLC qualification would have to be considered on the basis of the ratio prescribed in the Special Rules without reference to the Government Order. W.A. No. 1886/2005 is filed against that judgment. The State has also filed Writ Appeal against that judgment, which is W.A. No. 1665/2005. The Division Bench before whom these cases came up for hearing felt that the issue needs to be decided by a Full Bench in view of the two earlier divergent Division Bench decisions. It is in the above circumstances these Writ Appeals have come up for hearing before us.
7. Before going into the question posed before us, we may remind ourselves of the settled legal position as to whether the Special Rules can be altered or amended by an executive order. This question has been the subject matter of several decisions of the Supreme Court as also this Court and the legal position has been finally settled to the effect that the Special Rules cannot be altered or amended by an executive order. (See P.D. Aggarwal and Ors. v. State of U.P. and Ors. , K. Kuppusamy and Anr. v. State of T.N. and Ors. and Dr. Rajinder Singh v. State of Punjab and Anr. (2001) 5 SCC 428). In view of this settled position the only question we have to consider in this case is as to whether the Government Order mentioned above has the effect of amending or altering the Special Rules under consideration. Since the effect of the Government Order on the Special Rules is what is under consideration by us, we may extract the relevant portions of the Special Rules relating to Excise Preventive Officer, which read as under:
Method of appointment to the category of Excise Preventive Officer.
(i) Direct recruitment, or
(ii) promotion from category 3 provided that every fourth substantive vacancy shall be filled or reserved to be filled for direct recruitment. Provided further that the remaining vacancies shall be filled by promotion from among Excise Guards possessing the minimum qualification of the SSLC standard and those who do not possess this qualification in the ratio of 1:1.
Qualification prescribed for appointment to the category of Excise Preventive Officer.
1. Must have put in a service for a period of not less than three years as Excise Guard if he possesses the minimum educational qualification of the SSLC standard and at least seven years of such service in the case of those who do not possess this qualification.
2. Must have passed a test to be conducted by the Kerala Public Service Commission for purposes of deciding the eligibility for promotion.
8. Since the Government Order tries to give some credibility to the order by stating the circumstances which prompted the Government to issue the order, we feel that it would be advantageous to extract the entire Government Order which would assist us in our decision while examining the validity of the Government Order. (MS) No. 39/2001/TD dated 30-3-2001 reads as follows:
As per the Special Rules for the Kerala Excise & Prohibition Subordinate Service published as S.R.O. No. 609/74 dated 9-9-1974 it has been insisted to the appointment to the post of Excise Preventive Officers have to be done either by direct recruitment or promotion from those Excise Guards possessing the minimum qualification of the S.S.L.C standard and those who do not possess this qualification in the Ratio 1:1.
The application of the ratio 1:1 in promotion of Excise Guards who have passed SSLC or its equivalent and who have not passed SSLC seemed to be not in confirmity in respect of qualifications. This ratio worked smoothly when there were more Non-SSLC Excise Guards. Now the Excise Department has more SSLC Excise Guards. The number of Excise Guards who have passed SSLC or its equivalent out number the non-SSLC Excise Guards and when the ratio 1:1 who is applied in Non-SSLC Excise Guards supersede the SSLC passed Excise guards. This is an anomaly in service which resulted in dissatisfaction and unrest among qualified Excise Guards who possess a pass in SSLC.
Government have examined the matter in detail and are pleased to order that while applying the 1:1 ratio now existing in the above Special Rules a Senior Excise Guard who possess the minimum educational qualification of pass in SSLC or its equivalent shall not be superseded by a junior Excise Guard who does not possess the qualification of pass in SSLC Examination for its equivalent.
Suitable amendments to the Special Rules to this effect will be made subsequently.
Commissioner of Excise will take further necessary action in the matter.
9. As we have already mentioned herein before, the 1:1 ratio in the Special Rules, has come to stay in view of the settlement of the law by the Supreme Court in Chandran's case (supra). The contention of the persons holding SSLC and equivalent qualification is that the Government Order is only clarificatory in nature and it does not amend the Special Rules at all. They would submit that as is evident from the Government Order itself, the purpose of the Government Order is to see that a senior Excise Guard having SSLC qualification shall not be superseded by a junior Excise Guard who does not possess the SSLC qualification while applying the ratio. According to them, the same only postpones the promotion of the Excise Guard who does not possess SSLC qualification and since he is junior to the person who gets promotion by virtue of the Government Order he is not in any way affected and therefore the Government Order is only clarificatory in nature and since the decision in W.A. No. 1563/2001 and connected cases lays down the correct law the decision of the learned Single Judge in O.P. No. 19406/2001 is liable to be reversed, while affirming that in O.P. No. 23520/2004.
10. On the other hand, the Excise Guards who do not possess the SSLC qualification would submit that the very Government Order itself makes it abundantly clear that the Government Order in fact is intended to amend the Special Rules themselves as evidenced by the last but one sentence in the Government Order to the effect that suitable amendments to the Special Rules in accordance with the Government Order would be made subsequently. They would further contend that when a vacancy arises in the turn of the Excise Guard who does not have SSLC qualification and if there is an Excise Guard possessing SSLC qualification senior to the Excise Guard whose turn has come for promotion, on promotion of that senior Excise Guard possessing SSLC qualification in accordance with the Government Order, the ratio is changed in so far as there is no pass over of the turn of the Excise Guard who does not possess SSLC qualification, for maintaining the ratio in accordance with the Special Rules. Further, this Government Order does tinker with the ratio since a turn arising for the non SSLC Excise Guard is being occupied by a senior SSLC. Excise Guard.
11. We had the advantage of enlightening arguments of eminent counsel on both sides. After hearing arguments for the following reasons, we are satisfied that the Government Order does amend or alter the Special Rules under consideration and therefore the Excise Guards who do not have SSLC qualification is entitled to succeed in these Writ Appeals.
12. First of all, as pointed out by the learned Counsel appearing for the Excise Guards, who do not possess the qualification of SSLC, the Government Order itself gives enough indication that the Government Order does have the effect of amending the Special Rules because of the presence of the following words in the Government Order.
Suitable amendments to the Special Rules to this effect will be made subsequently.
Further since there is the ratio of 1:1 between the Excise Guards having SSLC qualification or equivalent qualification and Excise Guards who do not, alternative vacancies arising would have to be filled up by those two categories themselves. When a vacancy which is slated to be filled up by an Excise Guard who does not possess SSLC qualification is filled up by a senior Excise Guard possessing SSLC qualification by virtue of the Government Order, then the ratio is effectively upset. Going by the Government Order, if more number of senior SSLC Excise Guards are there in the service, then unless all of them are promoted, the chance of any non-SSLC Excise Guard for promotion would arise, thus giving a complete go-by to the ratio prescribed by the Special Rules. As the non-SSLC Excise Guards would point out, there is not even a pass over of their chance provided to maintain the ratio, even though providing of such a safeguard would not ipso facto make the Government Order sustainable.
13. The reasoning given in the Government Order for introducing the same to the effect that since now there are more Excise Guards holding SSLC qualification the superseding of senior Excise Guards possessing SSLC qualification by Excise Guards who do not is an anomaly in service, which would result in dissatisfaction and unrest among Excise Guards holding SSLC, does not appeal to us. That is an essential incidence of service when, for the same post, two channels of promotion are prescribed by introducing a ratio between them. If in fact, it renders injustice to any one of the categories, what the Government should have done is to amend the Special Rules themselves. When the Government does not have the power to amend the Special Rules through a Government Order, which is the settled law we have no doubt in our mind that the Government Order is in fact illegal and unsustainable. In this connection, we may extract with advantage the following passage from paragraph 3 of the judgment of the Supreme Court in Kuppusamy's case (supra):
The short point on which these appeals must succeed is that the Tribunal fell into an error in taking the view that since the Government had indicated its intention to amend the relevant rules, its action in proceeding on the assumption of such amendment could not be said to be irrational or arbitrary and, therefore, the consequential orders passed have to be upheld. We are afraid this line of approach cannot be countenanced. The relevant rules, it is admitted, were framed under the proviso to Article 309 of the Constitution. They are statutory rules. Statutory rules cannot be overridden by executive orders or executive practice. Merely because the Government had taken a decision to amend the rules does not mean that the rule stood obliterated. Till the rule is amended, the rule applies. Even today the amendment has not been effected. As and when it is effected ordinarily it would be prospective in nature unless expressly or by necessary implication found to be retrospective. The Tribunal was, therefore, wrong in ignoring the rule.
14. Therefore, the fact that the Government intends to amend the Special Rules also is of no consequences as far as the law as it exists today. Admittedly, the Government has not chosen to amend the Special Rules in tune with what they wanted to achieve by the Government Order. In this connection, we may note a passage from Chandran's case (supra), in which the Supreme Court held as follows:
6. We may deal with still another contention which has been advanced by Shri Sanghi appearing for some of the respondents the same being that after 7 years of service experience, the non-S.S.L.C. Excise Guards come at par with those Excise Guards who have S.S.L.C. As their educational qualification and have rendered 3 years of service. According to the learned Counsel, the denial of the posts of Excise Preventive Officers to those non-S.S.L.C. Excise Guards who after serving 7 years have become eligible for promotion to the posts of Excise Preventive Officers would not be permissible. We are not impressed with this submission because what the laying down of ratio does is postponement of the chances of promotion and not the denial of promotion as such. By providing the ratio of 1:1 the rule really gives the two categories equal opportunity, though the effect is that some non-SSLC Excise Guards, even if they are senior to S. S .L.C. Excise Guards, may get promoted to the hisgher post later, if the post to fell vacant be one meant for S.S.L.C qualified Excise Guards. The senior-mostnon-S.S.LC Excise Guards would, insuch an eventuality, be promoted to the next vacancy as that would be meant for such an incumbent. Thus, the chance of promotion of non-S.S.LC Excise Guards gets only deferred and not denied. It is a settled law that promotion cannot be claimed with the aid of Article 16 inasmuch as no incumbent has a right to be promoted and it is because of this a change of promotion has not been regarded as incompassed within the right visualised by Article 16.
15. The position now as presented before us, is exactly the converse of the position obtaining in Chandran's case (supra). When the Excise Guards who do not have SSLC qualification were held to be disentitled to complain when converse situation arises, the Excise Guards possessing SSLC qualification cannot also complain when the same logic goes against them. As we have already indicated, the change of seniority is an incidence of service when promotion is prescribed from two channels as in this case, namely, from Excise Guards holding SSLC qualification and those who do not. In fact this was exactly what has been decided in Gibson's case supra. When change of seniority is a necessary consequence of the ratio rule that cannot also be offset by bringing in a Government Order in the guise of a clarification to remedy an alleged anomaly in the matter of a senior SSLC qualified Excise Guard being overtaken by a junior Excise Guard without SSLC qualification. The very prescription of ratio envisages the by-passing of the seniority rule, which is the normal rule for effecting promotion. Of course, members of both category can complain if juniors in their own category are promoted in preference to them. But they cannot complain when their juniors in the other category is promoted ahead of them, to satisfy the rule regarding ratio between the two categories, since that is an unavoidable consequence of the ratio rule prescribed by the Special Rules. Further, loss of seniority on implementation of ratio rule is not unique to the Excise and Subordinate Service, since such ratio prevails in very many other services also under the Kerala Government itself.
16. For the above reasons, we uphold the decision in W.A. No. 315/1997 (Gibson's case) and overrule the decision in W.A. No. 1563/2001 and connected cases.
17. In the result, we hold that the Government Order G.O (Ms) No. 39/2001/TD dated 30-3-2001 effectively amends or alters the Special Rules which cannot be permitted under law. Therefore, W.A No. 2302/2004 is allowed. The judgment of the learned Single Judge in W.P.(C) No. 32530/2004 dated 8-11 -2004 is set aside quashing G.O. (Ms)No. 39/2001/TD dated 30-3-2001. Accordingly, there would be a direction to review all promotions given to the Excise Guards possessing SSLC qualification against the 1:1 ratio prescribed by the Special Rules made on the basis of the above said Government Order. Orders in this regard shall be passed within a period of two months from the date of receipt of a copy of this judgment. Consequently W.A. Nos. 1665 and 1886 of 2005 are dismissed. However, in the facts and circumstances of the do not make any order as to costs.