Kerala High Court
P.A.Radhakrishnan vs The High Court Of Kerala on 12 July, 2002
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
MONDAY,THE 31ST DAY OF MARCH 2014/10TH CHAITHRA, 1936
WP(C).No. 31292 of 2004 (R)
----------------------------
PETITIONER(S) :
--------------------------
1. P.A.RADHAKRISHNAN
COURT OFFICER, HIGH COURT OF KERALA,
ERNAKULAM
2. P.R.MINI, COURT OFFICER,
HIGH COURT OF KERALA, ERNAKULAM.
3. P.SREEDHAR, COURT OFFICER,
HIGH COURT OF KERALA, ERNAKULAM.
4. M.SEBASTIAN JOSEPH, COURT OFFICER,
HIGH COURT OF KERALA, ERNAKULAM.
5. PIUS SACHARIAS, COURT OFFICER,
HIGH COURT OF KERALA, ERNAKULAM.
6. VALENTINE GILSON FERNANDEZ,
COURT OFFICER, HIGH COURT OF KERALA,
ERNAKULAM.
7. A.VICTOR, COURT OFFICER,
HIGH COURT OF KERALA, ERNAKULAM.
8. K.B.ANIL KUMAR, COURT OFFICER,
HIGH COURT OF KERALA, ERNAKULAM.
9. JOAN GEORGE, COURT FEE EXAMINER,
HIGH COURT OF KERALA, ERNAKULAM.
10. K.V.GEORGE, COURT FEE EXAMINER,
HIGH COURT OF KERALA, ERNAKULAM.
BY ADVS.SRI.K.JAJU BABU
SMT.M.U.VIJAYALAKSHMI
SRI.T.S.SHYAM PRASANTH
SMT.M.J.POURNIMA
...2/-
WP(C).No. 31292 of 2004 (R) -2-
RESPONDENT :
----------------------
THE HIGH COURT OF KERALA
REP.BY ITS REGISTRAR, ERNAKULAM,
KOCHI - 682 031.
*ADDL. R2 IMPLEADED
---------------------------------
*2. SMT. ELIZABATH THOMAS,
ASSISTANT REGISTRAR, HIGH COURT OF KERALA,
ERNAKULAM, COCHIN - 682 031.
*IS IMPLEADED AS ADDL. R2 VIDE ORDER DTD. 22/5/2013 IN IA NO. 5396/13.
R1 BY SENIOR ADVOCATE SRI.O.V.RADHAKRISHNAN
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19-02-2014,
THE COURT ON 31-03-2014 DELIVERED THE FOLLOWING:
Mn
...3/-
WP(C).No. 31292 of 2004 (R)
APPENDIX
PETITIONER'S EXHIBITS :
EXT.P1 : COPY OF THE ORDER NO. A5-48834/03 DT. 4-3-2003 OF THE
RESPONDENT.
EXT.P2 COPY OF THE REPRESENTATION DT. SUBMITTED BY THE
PETITIONERS BEFORE THE COMMITTEE OF THE HON'BLE JUDGES
OF THE HIGH COURT OF KERALA.
EXT.P3 COPY OF THE COMMUNICATION NO. AS-21439/2003 DT. 21.5.2004.
RESPONDENT'S EXHIBITS :
EXT.R1(a) : PHOTOCOPY OF THE JUDGEMENT IN OP NO. 23037/2001 DATED
12-7-2002 OF THIS HON'BLE COURT.
//TRUE COPY//
P.S. TO JUDGE
Mn
A.M. Shaffique, J.
=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-=
W.P(C) No. 31292 of 2004
=-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=
Dated this, the 31st day of March, 2014.
J U D G M E N T
The writ petition is filed challenging Rule 16(b)(1) of the High Court Service Rules in so far as it restricts the seniority of the petitioners for appointment to the post of Assistant Registrar with effect from the date of Ext. P3 amendment.
2. The facts involved in the case would disclose that the post of Assistant Grade II is included in Division II of the High Court Rules as category 11. The qualification for the said post is a Degree of a University in the Indian Union in Arts or Science or Commerce or a degree of any other University recognised as equivalent degree by the Kerala University. Assistant Grade II is the feeder category for promotion to the post of Grade I. Assistant Grade I is entitled for promotion as Court Fee Examiners, which comes under category B Court Officers coming under Category 6A and Section Officers coming under Category 5. The said post comes under Division I. Promotion to the said post is based on seniority. They also have the same scale of pay. In respect of category of Court Fee Examiner and Court Officer, in addition to the minimum qualification of degree, professional degree of LLB is also essential. However, 8 posts of Court Officers are reserved for non W.P(C) No. 31292 of 2004 -: 2 :- LLB candidates whereas LLB is necessary for posting as Court Fee Examiners. Petitioners are persons who are promoted as Court Fee Examiners in preference to their seniors as they possessed LLB degree. The seniority is determined under Rule 15 of the High Court Service Rules depending upon the date of first appointment to such category. According to the petitioners, all of them are entitled to claim seniority in the category of Court Fee Examiners from the date of their appointment to the said category.
3. The complaint of the petitioners is that there existed an anomaly in the matter of promotion to the category of Assistant Registrar. Though Court Fee Examiners, Court Officers and Section Officers are in the same scale of pay and have come from the common feeder category, Court Fee Examiners were not shown as the feeder category for promotion to the post of Assistant Registrar. In other words, once promoted as Court Fee Examiners, they had no further avenues for promotion. At the time of promoting as Court Fee Examiner, no option is also called for. However, on the basis of a representation submitted by the aggrieved employees, the matter was considered by the High Court and by an amendment to the High Service Rules, Court Fee Examiners were also included as feeder W.P(C) No. 31292 of 2004 -: 3 :- category for promotion to the post of Assistant Registrar. A further amendment was introduced by way of proviso to Rule 16(b)(1) to the Rules, which reads as under:
"Provided further that in the case of Court Fee Examiners, their seniority for the purpose of this Rule will be reckoned only from 21st May, 2004."
Ext. P3 is the said notification issued by the High Court. The petitioners contend that by incorporating such a proviso, the right of the petitioners to count their service as Court Fee Examiners from the date of their appointment has been snipped off and they are given seniority in the category of Court Fee Examiner only with effect from the date of Ext. P3 amendment, which has resulted in discrimination and hence, the petitioners seek for a direction to declare that the proviso to Rule 16(b)(1) of the High Court Service Rules in terms of Ext P3 is illegal and unconstitutional and consequential reliefs are sought for declaring their seniority for the purpose of their entry into service in the feeder category.
4. Counter affidavit is filed by the respondent inter alia contending that the seniority in the feeder category of Assistant Grade I was the basis for W.P(C) No. 31292 of 2004 -: 4 :- promotion to the post of Court Officer and Court Fee Examiner. Therefore, at the time of promotion, seniors are entitled to become Court Officers and juniors become Court Fee Examiners. In that view of the matter, none of the juniors of the petitioners in the category of Assistant Grade I were promoted to the category of Court Officers. Therefore, according to the respondent, non-inclusion of category of Court Fee Examiner as feeder category to the post of Assistant Registrar did not cause any injury to those belonging to the category of Court Fee Examiners. However, on the basis of the request made by the Court Fee Examiners, a committee was formed by the High Court, the stake holders were heard and the Committee recommended that the Rule has to be amended to incorporate the post of Court Fee Examiner also as a feeder category for promotion to the post of Assistant Registrar. The Committee observed that if the amendment is introduced with retrospective effect, it would unsettle the long settled seniority position of the officers in the existing feeder category for promotion to the post of Assistant Registrar. It is therefore explained that the High Court having accepted the recommendations of the Committee, ordered to amend the Rule as recommended by the Committee with effect from W.P(C) No. 31292 of 2004 -: 5 :- 21.5.2004 so that it will not adversely affect the settled seniority position of those who are holding one or the other posts in the feeder categories for promotion to the post of Assistant Registrar. It is also contended that by incorporation of the impugned proviso, the rights of the petitioners were not adversely affected. Before the amendment, the petitioners did not have a right to be promoted to the next higher post as they were not in the feeder category and that right accrued to them only at the time of amendment and in that view of the matter, it is not open for them to challenge the amendment as unreasonable or arbitrary.
5. Heard learned senior counsel Sri. K. Jaju Babu appearing for the petitioners and the learned senior counsel Sri. O.V. Radhakrishnan appearing for the respondent.
6. As far as the grievances of the petitioners are concerned, substantially, their grievance had been taken care of by the amendment to the High Court Service Rules as indicated and as matter stands now, Court Fee Examiners are also included in the feeder category to the next higher post of Assistant Registrar. The only question that remains for consideration is whether the proviso which restricts the seniority of members of the feeder category from the date of W.P(C) No. 31292 of 2004 -: 6 :- amendment to the Rules, is either arbitrary or unconstitutional.
7. As argued by the learned senior counsel for the respondent, the petitioners did not have any right to be promoted to the post of Assistant Registrar at the time when they were appointed as Court Fee Examiners. Such a right accrued to them only when they were included in the feeder category. Such inclusion had taken place only with effect from the date of amendment, ie. 21.5.2004. When the right for being promoted to the next higher post itself has been created only on 21.5.2004, it is for the rule making authority to decide as to whether such a right should be given with prospective effect or retrospective effect. It is a settled position of law that appointment to a civil post is subject to the rules framed by the Government. Admittedly, there was no rule which permitted the Court Fee Examiners to be in the feeder category before the amendment. When a right has been created to include them in the feeder category, it is always subject to the restrictions imposed by the rules. In fact, a Committee has been formed for the purpose of ascertaining the anomaly pointed out by a group of Court Fee Examiners. This was verified by the Committee and it was recommended that they should W.P(C) No. 31292 of 2004 -: 7 :- also be included in the feeder category. However, the Committee recommended that such inclusion shall take place only from the date of the amendment on account of the fact that if retrospective operation is given, it will unsettle all the promotions granted. This recommendation was accepted by the Chief Justice of High Court, so that the promotions already granted need not be unsettled. It is therefore apparently clear that the petitioners obtained a right to come in the feeder category only by virtue of the amendment and if some restriction has been imposed with reference to the date from which the seniority has to be reckoned, it cannot be stated to be either arbitrary or unconstitutional. In so far as the rule making authority has the right to impose such restrictions, especially when giving right to Court Fee Examiners by including them in the feeder category, such restrictive conditions for a definite purpose of not unsettling the earlier appointments made to the post of Assistant Registrar, is not in any way bad in law. Learned senior counsel also relied upon the judgment in Pankajakshy & Others v George Mathew & Others, 1987(2) KLT
723. This judgment lays down a proposition that a rule made under a statute by an authority delegated for the said purpose can be challenged only on on the ground W.P(C) No. 31292 of 2004 -: 8 :- that it is ultra vires the Act, it is opposed to the fundamental rights and it is opposed to other plenary laws. In order to ascertain whether a rule is ultra vires the Act, the court can go into the question whether it contravenes expressly or impliedly any of the provisions of the statute or whether it achieves the intent and object of the Act and whether it is unreasonable to be manifestly arbitrary, unjust or partial implying thereby want of authority to make such rules. In so far as the present Rule does not come under any of the aforesaid categories, I do not think that the petitioners are justified in challenging the proviso to Rule 16(b)(1) of the High Court Service Rules as amended in terms of Ext. P3.
Accordingly, the writ petition is dismissed.
Sd/- A.M. Shaffique, Judge. Tds/