Kerala High Court
Suma M.S vs State Of Kerala on 18 August, 2011
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
WEDNESDAY, THE 6TH DAY OF AUGUST 2014/15TH SRAVANA, 1936
WP(C).No. 28749 of 2012 (P)
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PETITIONER:
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1. SUMA M.S
W/O.V R RAJEEV, MATTAPALLY HOUSE, CHERAI
2. SHYNI T K
W/O.MURALEEDHARAN K R, KYMAPARAMBIL , VANIYAKKAD
MANNAM P.O., N PARAVOOR, ERNAKULAM DIST
3. NISHA C V
W/O.KISHORE T K, THALAPPILLY HOUSE, CHERAI P.O.
ERNAKULAM DIST
4. NISHA MATHEW
W/O.AUGUSTINE K X, KUZHIKKALAYIL, POTTAKUZHY ROAD
PACHALAM P.O., ERNAKULAM
5. REMA R
W/O.SURENDRANATHAN, KANAKATHARA, ANDARAMURI
THEKKUM BHAGOM, THRIPUNITHURA, ERNAKULAM DIST
6. LETHA V K
W/O.SOMARAJ, PONNETHUKARATHU HOUSE, FACT COLONY
KARIMUGAL, PUTHENCURZ P.O., ERNAKULAM DIST
7. KISHORE T K
S/O.KRISHNANKUTTY, THALAPPILLY HOUSE, CHERAI P.O.
ERNAKULAM
8. VIMAL KUMAR M P
S/O.PARAMESWAR MENON, MANAYAPARAMBIL HOUSE
CONVENT ROAD, PONNURUNNI, VYTTILLA P.O.
ERNAKULAM
9. SUDHA R
W/O.K V SWAMINATHAN, KOLLASSERY VELI, NEAR SBI
KALAVOOR P.O., ALAPPUZHA DIST
BY ADVS.SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL)
SRI.A.R.DILEEP
SRI.MANU SEBASTIAN
RESPONDENTS:
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1. STATE OF KERALA
REP.BY THE CHIEF SECRETARY TO THE GOVERNMENT
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM
2. THE DISTRICT JUDGE,
ERNAKULAM DIST, ERNAKULAM-682011
WP(C).No. 28749 of 2012
3. THE KERALA PUBLIC SERVICE COMMISSION,
PATTO, THIRUVANANTHAPURAM-695004
4. THE DISTRICT OFFICER
KERALA PUBLIC SERVICE COMMISSION DIST OFFICE
ERNAKULAM.
5. V.M.SHANIBA
PROCESS SERVER, DISTRICT COURT, ERNAKULAM-682011
6. V.M.ABUBACKER,
PROCESS SERVER, DISTRICT COURT ERNAKULAM-682011
7. V.R.DEVASSY
PROCESS SERVER, DISTRICT COURT, ERNAKULAM-682011
8. NAJEEB E M
PROCESS SERVER, SUB COURT, MUVATTUPUZHA-686661
9. VIVEK A N
PROCESS SERVER, DISTRICT COURT, ERNAKULAM-682011
10. PRASANTH K V
PROCESS SERVER, DISTRICT COURT, ERNAKULAM-682011
11. SREEKANTH P S
PROCESS SERVER, DISTRICT COURT, ERNAKULAM-682011
12. MUHAMMED SHAIFI K A
PROCESS SERVER, DISTRICT COURT, ERNAKULAM-682011
13. GIRISH S
PROCESS SERVER, FAMILY COURT, MUVATTUPUZHA-686661
14. SHANAWS T K
PROCESS SERVER, MUNSIFF'S COURT, KOLENCHERRY-670601
15. VINU P C
PROCESS SERVER, DISTRICT COURT, ERNAKULAM-682011
16. SREEKALA T.S., PROCESS SERVER, DISTRICT COURT,
ERNAKULAM - 682 011.
17. SAJINI K.N., PROCESS SERVER, DISTRICT COURT,
ERNAKULAM - 682 011.
18. THOMAS. K.J, PROCESS SERVER, DISTRICT COURT,
ERNAKULAM - 682 011.
19. GEETHA. M.K., PROCESS SERVER, SUB COURT,
MUTATTUPUZHA - 686 661.
20. JENSY K. DAS, PROCESS SERVER, DISTRICT COURT,
ERNAKULAM - 682 011.
21. SHIJI. K.B., PROCESS SERVER, DISTRICT COURT,
ERNAKULAM - 682 011.
22. SATHYANADH. P.S., PROCESS SERVER,
DISTRICT COURT, ERNAKULAM - 682 011.
23. SUDHEESH. C.R., PROCESS SERVER,
DISTRICT COURT, ERNAKULAM - 682 011.
WP(C).No. 28749 of 2012
24. NIKHIL. P.K., PROCESS SERVER, DISTRICT COURT,
ERNAKULAM - 682 011.
25. ANTONY. K.J., PROCESS SERVER, SUB COURT,
ERNAKULAM - 682 001.
26. BINIMOL. T.M., PROCESS SERVER, WAKF TRIBUNAL,
ERNAKULAM - 682 011.
27. REMA. V.S., PROCESS SERVER, SUB COURT, KOCHI - 682 001.
R5,R13,R15,R25,R8,R11,R 4,R20,R22,R24,R5,R7,R10,R16,R23,R9,
R12,R17,R18,R19,R21,R26 BY ADV. SRI.P.MARTIN JOSE
R13,R15,R25,R8,R11,R14,R20,R22,R24,R5,R7,R10,R16,R23,R9,
R12,R17,R18,R19,R21,R26 BY ADV. SRI.P.PRIJITH
R5,R7 TO 26 BY ADV. SRI.S.SREEKUMAR (SR.)
R1 BY GOVERNMENT PLEADER SRI. SANEER. P.M.
BY SRI.P.C.SASIDHARAN, SC, KPSC
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
06-08-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 28749 of 2012
APPENDIX
PETITIONERS' EXHIBITS:
P1 : A TRUE COPY OF RANK LIST NO.383/11/DOE DATED 18.08.2011
PUBLISHED BY THE 4TH RESPONDENT.
P2 : A TRUE COPY OF NOTIFICATION DATED 12.04.2007 PUBLISHED BY THE
3RD RESPONDENT IN THE EXTRAORDINARY KERALA GAZATTE.
P3 : A TRUE COPY OF THE COMMUNICATION DATED 28.09.2012 BY THE
PUBLIC INFORMATION OFFICER OF THE 2ND RESPONDENT.
P4 : A TRUE COPY OF THE COMMUNICATION DATED 26.06.2012 BY THE
PUBLIC INFORMATION OFFICER OF THE 2ND RESPONDENT.
P5 : A TRUE COPY OF THE RELEVANT PAGES OF SPECIAL RULES FOR THE
KERALA LAST GRADE SERVICE, CONTAINING THE PROVISIONS UPON WHICH
RELIANCE IS PLACED UPON BY THE PETITIONERS.
P6 : A TRUE COPY OF AMENDMENTS MADE TO SPECIAL RULES FOR THE
KERALA LAST GRADE SERVICES EFFECTED BY G.O.(P) NO.33/87/P&ARD DATED
02.12.1987 PUBLISHED BY THE 1ST RESPONDENT.
P7 : A TRUE COPY OF SPECIAL RULES FOR THE KERALA LAST GRADE
SERVICES (AMENDMENT) RULES 1997 PUBLISHED IN G.O.(P) NO.30/97/P&ARD
DATED 03.12.1997 BY THE 1ST RESPONDENT.
//TRUE COPY//
P.A. TO JUDGE
P.B. SURESH KUMAR, J.
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W.P.(C) No.28749 of 2012
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Dated this the 6th day of August, 2014.
JUDGMENT
Notwithstanding the bar under Section 15 of the Administrative Tribunals Act, this writ petition was admitted to file, in view of the provision in Section 2(c) of the said Act, that the Act will not apply to officers and servants of courts subordinate to the Supreme Court or of any High Court. The crux of the reliefs sought for in the writ petition is for a declaration that the method of appointment introduced by way of amendment to the Special Rules for the Kerala Last Grade Service as per Ext.P7 notification is unreasonable and ultra vires.
2. The post of Process Server is a post borne on the cadre of posts in the Kerala Last Grade Service. The method of appointment to the said post is provided for in Rule 5 of the Special Rules for the W.P(C) No. 28749 of 2012 2 Kerala Last Grade Service. The said Rule in so far as it relates to the post of Process Server, reads thus:
"Category 8:
(i) By appointment from among qualified persons in the Judicial Department carrying similar or identical scale of pay, according to seniority and willingness:
OR
(ii) In the absence of qualified persons under item (i) above, by promotion from among the qualified persons in the Last Grade Service in the Department according to seniority:
OR
(iii) In the absence of qualified persons under items (i) and (ii) above."
Earlier there was no provision in the Special Rules for appointment by way of promotion from among the qualified persons in the Last Grade Service in the Judicial Department. Such a provision was introduced by way of amendment to Rule 5 as per Ext.P7 notification, with effect from 1/7/1988. In view of the W.P(C) No. 28749 of 2012 3 amendment, appointments have to be made to the post at the first instance from among qualified persons in the Judicial Department carrying similar or identical scale of pay. In the absence of such qualified persons, the appointments have to be made by promotion from among qualified persons in the Last Grade Service in the Judicial Department. It is only in the absence of qualified persons in the Judicial Department carrying similar or identical scale of pay eligible for appointment by transfer and qualified persons in the Last Grade Service in the Judicial Department eligible for appointment by promotion, direct recruitment can be resorted to.
3. Petitioners have applied for selection to the post of Process Server in the Judicial Department pursuant to Ext.P2 notification issued by the Kerala Public Service Commission. Ext.P2 notification did not specify the number of vacancies existed as on the date of W.P(C) No. 28749 of 2012 4 notification. Ext.P1 is the rank list published on 18.08.2007 pursuant to Ext.P2 notification. The names of the petitioners are included in Ext.P1 rank list. According to the petitioners, several vacancies arose after the notification and all the vacancies were filled up by promotion from other categories of last grade servants in the department, on the basis of the amendment introduced to Rule 5 of the Special Rules, as per Ext.P7 notification.
4. A counter affidavit has been filed on behalf of the Government. According to the Government, prior to the pay revision introduced as per G.O(P) No. 480/1989 dated 01.11.1989, the posts of Process Server and Peon in the Judicial Department were on the same scale of pay. Consequently, the Peons in the Judicial Department could claim appointment by transfer as Process Server as per the rules existed prior to the amendment introduced as per Ext.P7 W.P(C) No. 28749 of 2012 5 notification. However, as per the pay revision order referred to above, the post of Process Server was placed on a higher time scale of pay. Consequently, the Peons in the Judicial Department could not claim appointment as Process Server as per the Rules, though they were having the requisite qualification, until they acquire the higher scale of pay prescribed for Process Server. Ext.P7 amendment was introduced in the Rules, in the circumstances, to enable the qualified persons in the Last Grade Service in the judicial Department, who were eligible to be considered for appointment as Process Server prior to the introduction of the pay revision, to claim appointment to the said post.
5. Heard the learned counsel on either side. The jurisdiction of this Court to entertain this writ petition has not been disputed at the time of hearing.
6. The learned counsel for the petitioners W.P(C) No. 28749 of 2012 6 contended that the amendment introduced to the Special Rules as per Ext.P7 notification is against the scheme of the Special Rules for the Kerala Last Grade Service. According to him, the scheme of the Special Rules is such that it does not provide for inter category promotion and by virtue of the amendment, inter category promotion was introduced, by providing for promotion from among other qualified persons in the Last Grade Service. According to the counsel, the amendment is, therefore, unreasonable and ultra vires, as the legislature had not intended to give authority to make such Rules to the rule making authority. The learned counsel for the petitioners has also relied on the decision of this Court in N.C. Narayanan Nair v. State of Kerala [1988(1)KLT 894] in support his argument.
7. It is true that a Rule made under a statute can be questioned on the ground that it is W.P(C) No. 28749 of 2012 7 unreasonable, not in the sense of not being reasonable, but in the sense that it is manifestly arbitrary, implying thereby want of authority to make such a rule. The said ground may not be available to the petitioners to challenge Ext.P7 amendment, for, I do not find any scheme in the said Special Rules, which prohibits inter category promotion. Merely because the Rules do not provide for inter category promotion, it cannot be said that the Rules prohibit inter category promotion. In this case, inter category promotion was introduced to the Rules within the same department. In N.C. Narayanan Nair v. State of Kerala (supra), relied on by the petitioners, the Court found on the facts that the amendment introduced to the Special Rules for the Last Grade Service, which was under challenge before this Court in that case was unworkable in its operation, leading to the reasonable conclusion that it is manifestly arbitrary and hence W.P(C) No. 28749 of 2012 8 beyond the powers conferred under the statute to make rules. Petitioners do not have a case that the amendment introduced to the Special Rules as per Ext.P7 notification is unworkable in its operation or uncertain in its language. As such the said decision may not have any application to the facts of the present case.
There is, therefore, no merit in the writ petition. Writ petition is, accordingly, dismissed.
Sd/-
P.B. SURESH KUMAR, JUDGE smv