Samraj P vs State Of Kerala on 25 April, 2005

[Cites 10, Cited by 0]

Kerala High Court

Samraj P vs State Of Kerala on 25 April, 2005

Bench: S.Siri Jagan

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT :

THE HONOURABLE MR. JUSTICE S.SIRI JAGAN

FRIDAY, THE 19TH AUGUST 2011 / 28TH SRAVANA 1933

WP(C).No. 21381 of 2006(U)
--------------------------

PETITIONER :
---------------------

SAMRAJ P.,
OVERSEER - FIRST GRADE,
PUBLIC WORKS DEPARTMENT (ELECTRICAL WING),
OFFICE OF THE CHIEF ENGINEER (BUILDINGS AND
LOCAL WORKS), THIRUVANANTHAPURAM-695 033.

BY ADVS. SRI.B.RAGUNATHAN
SRI.V.V.MATHEW

RESPONDENT(S):
--------------------------

1. STATE OF KERALA, REPRESENTED BY
SECRETARY TO GOVERNMENT,
PUBLIC WORKS DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695 001.

2. CHIEF ENGINEER (ADMINISTRATION),
PUBLIC WORKS DEPARTMENT,
THIRUVANANTHAPURAM-695 033.

3. KERALA PUBLIC SERVICE COMMISSION,
REPRESENTED BY SECRETARY,
KERALA PUBLIC SERVICE COMMISSION,
PATTOM, THIRUVANANTHAPURAM-695 004.

4. SHRI. D.S.SHYAMKUMAR,
OVERSEER - FIRST GRADE,
PWD ELECTRICAL DIVISION, NEAR PMG OFFICE,
THIRUVANANTHAPURAM-695 033.

R1 & R2 BY GOVT. PLEADER SRI. ANTONY MUKKATH
R3 BY ADV. SRI. P.C. SASIDHARAN, SC
R4 BY ADVS. SRI.D.KISHORE
SRI.K.R.B.KAIMAL, SENIOR ADVOCATE
SRI.B.UNNIKRISHNA KAIMAL
SRI.V.MADHUSUDHANAN
SRI.ANIL K.NAIR

THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 05/08/2011, ALONG WITH WPC NO. 25988 OF 2006 & WPC NO. 20342 OF 2008
THE COURT ON 19/8/2011 DELIVERED THE FOLLOWING:

Mn
...2/-

WP(C).No. 21381 of 2006(U)

APPENDIX

PETITIONER'S EXHIBITS:

EXT.P1 : COPY OF THE CERTIFICATE DT. 21.8.04 ISSUED BY THE UNIVERSITY OF
KERALA.

EXT.P2 : COPY OF THE PSC BULLETIN DT. 15.5.06.

EXT.P3 : COPY OF THE SERVICE CERTIFICATE DT. 20.6.06 ISSUED BY THE 2ND
RESPONDENT.

EXT.P4 : COPY OF THE RECEIPT DT. 20.6.06 ISSUED BY THE 2ND RESPONDENT.

EXT.P5 : COPY OF G.O.(RT) NO. 430/06/PWD DT. 16.6.06.

EXT.P6 : COPY OF THE ORDER DT. 6.10.2004 IN WP(C) NO. 27556 OF 2004 -E.

EXT.P7 : COPY OF THE STATEMENT OF SELF FINANCING COLLEGES UNDER THE
ANNA UNIVERSITY (RELEVANT PORTION).

RESPONDENT'S EXHIBITS:

EXT.R4(a) : COPY OF THE ORDER NO. ECI-74994/90 DATED 25.4.2005 OF THE CHIEF
ENGINEER PWD. ADMN.

EXT.R4(b) : COPY OF THE NOTIFICATION ISSUED BY THE PSC.

EXT.R4(c) : COPY OF THE MEMO NO. GRIC(3)11765/05/DATED 21-2-2007 ISSUED BY
THE PSC TO THE APPLICANT.

EXT.R4(d) COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN W.A. NO. 1011/04
DATED 13-6-2005.

EXT.R4(e) COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WP(C) NO.
24527/04 DATED 25-10-2006.

EXT.R4(f) COPY OF NOTIFICATION SHORT LIST NO. 18/2008/ERVIIA/952/07/EW
DATED 28-2-2008 ISSUED BY THE PSC.

EXT.R4(g) COPY OF NOTIFICATION NO. ERVIIA/952/07/EW DATED 29-4-2008 ISSUED
BY THE 4TH RESPONDENT.

EXT.R4(h) COPY OF THE MEMO NO. GRIC (3)11765/05/GW DATED 25-4-2008 ISSUED
BY THE 4TH RESPONDENT TO THE APPLICANT.

//TRUE COPY//

P.S. TO JUDGE

S. Siri Jagan, J.
=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-=
W.P(C) Nos. 21381 & 25988 of 2006
and
W.P(C) No. 20342 of 2008
=-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=
Dated this, the 19th day of August, 2011.

J U D G M E N T

These three writ petitions relate to the selection to the

post of Assistant Engineer (Electrical) in the Public Works

Department of the Government of Kerala by direct recruitment

from among First and Second Grade Overseers/Draftsman

(Electrical) and Clerks in the quota set apart for them as per

Note-2 Rule 3(3) of the Kerala Engineering Service (Radio and

Electrical Branches) Rules. In W.P(C) Nos. 25988 and 21381 of

2006, the petitioners are challenging the selection of the 4th

respondent by granting exemption to him from the service

qualification of two years as First and Second Grade

Draftsman/Overseer in the Electrical wing of the Public Works

Department prescribed under the said Rule in exercise of

powers of the Government under Rule 39 of tie Kerala State and

Subordinate Service Rules. The other writ petition is filed by the

petitioner in W.P(C) No. 25988/96 challenging her exclusion

from the short list on the ground that she did not secure the

minimum cut off marks in the written test and also challenging

the inclusion of the 4th respondent on the ground that he is not

eligible to be considered for the post. Although W.P(C) No.

20342/2008 has to be considered separately from the other two,

all the three are being heard together and disposed of by this

common judgment, since in both the same selection is involved.

W.P(C) Nos. 21381 & 25988 of 2006
& W.P(C) No. 20342 of 2008 -: 2 :-

W.P(C) Nos. 25988 & 21381 of 2006.

2. Rule 2(a)(3) of Branch II-Electrical of the Kerala

Engg. Service (Radio and Electrical Branches) Rules

prescribes the method of appointment to the post of

Assistant Engineer (Electrical) thus:

"2. Appointment (a) - Appointment to the two categories shall

be made as follows:

Category Method of appointment

1. xx xx

2 xx xx

3. Assistant Engineer 1. By direct recruitment.

( Electrical) 2. By transfer from
category of
Overseer/Draftsman
Grade I and Overseer
(Generator Mechanic)
in the Kerala
Engineering
Subordinate Service
(Electrical Branch)."

The qualifications for the post are prescribed in Rule 3(3)

thereof thus:

3. Qualifications - No person shall be eligible for
appointment to the category mentioned in column (1) of the
table below unless he possesses the qualification prescribed
in the corresponding entry in column (2) thereof.

Category Qualifications
(1) (2)

1. xx xx

2. xx xx

3 "Assistant 1. Direct Recruitment:-
Engineer
(Electrical) Degree in Electrical Engineering of
the Kerala University or other
qualifications recognised as
equivalent thereto.

W.P(C) Nos. 21381 & 25988 of 2006
& W.P(C) No. 20342 of 2008 -: 3 :-

2. Recruitment by transfer:-

(i) Degree in Electrical
Engineering of a recognised
University or equivalent
qualification;

(ii) Diploma in electrical
Engineering awarded by the Director
of Technical Education, Kerala or
equivalent qualification with a total
service of three years of which two
years shall be as I Grade Overseer;

(iii) Minimum educational
qualification of S.S.L.C or equivalent
and certificate in Electrical
Engineering after undergoing a
course of two years in an Institution
recognised by Government and a
total service of 10 years of which 2
years should be First Grade
Overseer.

Note 1.- 25% of the posts in category 3 shall be filled up by
direct recruitment and the rest 75% recruitment by transfer from
Overseer/Draftsman Grade I in the ratio of 3:2 as between
Diploma holders and Certificate holders provided that no Senior
Diploma Holder is superseded by a Junior Certificate holder.

Note 2.- Subject to the provision of Note 1, in making
appointment to the post of Assistant Engineer by direct
recruitment, appointment to one post out of five shall be made by
direct recruitment from among First and Second Grade
Overseers/Draftsman (Electrical) and Clerks in Public Works
Department of the Government of Kerala, provided--

(i) that they possess a Degree in Electrical Engineering
of the Kerala University or its equivalent or a pass in Section A
and B of A.M.I.E (India) in Electrical Engineering and that in the
case of First Grade/Second Grade Draftsman/Overseer

W.P(C) Nos. 21381 & 25988 of 2006
& W.P(C) No. 20342 of 2008 -: 4 :-

(Electrical) they should have rendered a minimum service of two
years as First or Second Grade Draftsman/Overseer (Electrical)
in the Electrical Wing of the Public Works Department and in the
case of Clerks a minimum period of service of six years as Clerks
in the Public Works Department, and

(ii) that if at any time, qualified candidates are not
available from among those in the service of Government as laid
down above, appointment to the vacancies in the quota shall be
made by direct recruitment of candidates from the open market.

Note 3.- The candidate for direct recruitment from service, in
the above mentioned quota, shall be exempted from the upper
age limit fixed for direct recruitment to the category.

Note.- For candidates belonging to Scheduled Caste and
Scheduled Tribes, the requirement of experience wherever
prescribed for direct recruitment shall not be insisted upon.
Such candidates shall be given training for six months during the
period of probation after appointment to the posts."

(Underlining supplied)

3. By notification dated 11.5.206 (Ext.P1 in

25988/2006), the Public Service Commission invited

applications for selection to the said post. The last date for

submission of application was 21.6.2006. 28 persons

applied. The 4th respondent did not possess the service

qualification of 2 years as First or Second Grade

Draftsman/Overseer(Electrical) in the Electrical Wing of the

PWD, he having entered service as Overseer Grade I

(Electrical) through Public Service Commission only on

28.4.2005. He filed a representation dated 23.5.2006

before the Government seeking exemption from the service

qualification, which was forwarded to the Government by

the 2nd respondent recommending grant of exemption and

by Ext.P2 order dated 16.6.2006, the Government granted

W.P(C) Nos. 21381 & 25988 of 2006
& W.P(C) No. 20342 of 2008 -: 5 :-

exemption to the 4th respondent from the requirement of 2

years' service as 1st or 2nd Grade Draftsman/Overseer

(Electrical). Out of the 28 applicants only 4 were found

possessing the required qualifications, including the 4th

respondent on the strength of the exemption granted by the

Government. There were only 2 vacancies. The petitioners

are challenging the order (Ext.P2 in W.P(C) No.

25988/2006, which is the same as Ext.P5 in W.P(C) No.

21381/2006) of the Government granting exemption to the

4th respondent from the requirement of service qualification

of two years and his consequent consideration for selection.

4. The contention of the petitioners is that there was

no circumstances warranting exercise of powers under Rule

39 of the K.S and S.S.R by the Government to grant

exemption to the 4th respondent from the required service

qualification as per the Special Rules, which powers have to

be used by the Government only sparingly, for very

compelling reasons. According to them, the petitioners had

12 and 10 years' service respectively as Overseers,

whereas the 4th respondent had only less than one year's

service. There was sufficient senior candidates available for

consideration for the two vacancies. The 4th respondent did

not have any special qualifications or experience warranting

his consideration granting exemption, they submit. Their

contention is that the only reason stated in the impugned

order is that he had 3 years and 8 months' service as

Lecturer in an Engineering College under Anna University.

W.P(C) Nos. 21381 & 25988 of 2006
& W.P(C) No. 20342 of 2008 -: 6 :-

They would point out that the 4th respondent's teaching

experience is not under Anna University, but only from a

self-financing college affiliated to that University, the

veracity of which certificate is very much in doubt and the

Government has granted the exemption without verifying

the genuineness of the certificate, hastily without applying

mind. They would also point out that experience as lecturer

in an engineering college is not comparable to the service

as Overseer (Electrical) of P.W.D and the Government was

not right in granting exemption on that sole ground. They

would further contend that the Government cannot in

exercise of Rule 39 of the K.S. and S.S.R grant relaxation

from the basic qualifications prescribed. They rely on the

Division Bench decision of this Court in Koyit Joseph and

others v. Subash George and others, ILR 2006(3) Kerala

162 and that of the Supreme Court in Suraj Parkash

Gupta and others v. State of Jammu & Kashmir and

others (2000) 7 SCC 561.

5. The respondents support the impugned order

justifying the exercise of power by the Government under

Rule 39 of the K.S and S.S.R with the help of Ext.R4(d)

(reported as K.P.S.C. v. Tessymole Sebastian and

another, ILR 2005(3) Kerala 486) and Ext. R4(e) judgments

of two Division Benches of this Court, wherein such

relaxation granted was upheld.

6. The petitioners would try to distinguish those

decisions on facts on the ground that the circumstances are

W.P(C) Nos. 21381 & 25988 of 2006
& W.P(C) No. 20342 of 2008 -: 7 :-

different, particularly since in those cases, there was no

challenge to the exemption granted in those cases, whereas

in this case, the very order granting exemption is under

challenge.

7. I have considered the rival contentions in detail.

8. Rule 39 of the K.S and S.S.R reads thus:

"39. Notwithstanding anything contained in these
rules or in the Special Rules or in any other Rules or
Government Orders the Government shall have power to
deal with the case of any person or persons serving in a
civil capacity under the Government of Kerala or any
candidate for appointment to a service in such manner as
may appear to the Government to be just and equitable:

Provided that where such rules or orders are
applicable to the case of any person or persons, the case
shall not be dealt with in any manner less favourable to him
or them than that provided by those rules or orders.

This amendment shall be deemed to have come into
force with effect from 17th December 1958."

The constitutional validity of that Rule was considered by a

Full Bench of this Court as early as in 1973, in the decision

of Sreedharan Pillai v. State of Kerala, 1973 KLT 151

(FB), wherein the Full Bench has laid down the scope and

ambit of that rule in the last part of paragraph 17 and

paragraphs 18 to 21 thereof thus:

"17. xx xx xx

The above observations of the Supreme Court lend full
support to our view that a rule cannot be validly framed
under the proviso to Art.309 conferring an arbitrary
discretion on the State Government or any other authority to
totally ignore the existing rules governing any aspect of the

W.P(C) Nos. 21381 & 25988 of 2006
& W.P(C) No. 20342 of 2008 -: 8 :-

service conditions and to mete out special treatment to any
particular officer or groups of officers in such a way as to
totally nullify the operation and effectiveness of the rules.
Hence, if R.39 is to be valid it has to be interpreted in such a
manner as would reader its provisions consistent with the
above legal position. If, as laid down by the Supreme Court in
the decision above cited, an action taken in contravention of
the existing rules cannot be validated by making a special
rule for that purpose under the proviso to Art.305, it is
equally clear that no such action can be authorised to be
done by any special provision made in that behalf under the
proviso to Art.309, such as R.39 of the Kerala State and
Subordinate Services Rules; much less can it be done by an
executive order passed pursuant to the power conferred by
such a rule.

18. R.1 to 38 contained in Part I of the Kerala State
and Subordinate Services Rules 1958, the Government as on
the officers in its service. While framing those rules in would
appear to have been, however, recognised by the rule making
authority that instances may sometimes occur where a strict
and rigorous application of the aforementioned rules may
result in manifest injustice or inequity and it is only to deal
with such an extraordinary situation that the power has been
conferred under R.39. It goes without saying that the said
power is to be sparingly exercised and its use must be
restricted to cases of a very exceptional nature. If due regard
he had to the real nature and purpose of the power as
explained above, there can be no difficulty in seeing that it
can be exercised only in those individual cases where the
authority finds that on account of special circumstances a
separate or differential treatment is justified and that such
action is necessary in order to mete out justice and equity.
The actual exercise of the power must therefore be preceded
by a careful application of the mind of the authority to all the
relevant facts and circumstances and a satisfaction being
arrived at by it to the effect indicated above. In this context it
is necessary to remember that the service rules framed under
the proviso to Art.309 most ordinarily be taken to be in
perfect conformity with accepted notions of justice and
equity.' It could not, therefore, have been the intention of the
rule-making authority in framing R.39 that the power
conferred by the said rule is to be utilised whenever it is
found that the enforcement of any particular service rule
results in some hardship to any officer or groups of officers.
The remedy for such a situation, if it is found to exist, will be
only to amend the offending rule and the power under R.39

W.P(C) Nos. 21381 & 25988 of 2006
& W.P(C) No. 20342 of 2008 -: 9 :-

cannot be resorted to as an easy substitute.

19. We have already pointed out that it is not the
purpose of R.39 to empower the authority designated in it to
arbitrarily deal out special treatment to any officer or officers
according to its sweet will and pleasure by passing orders in
direct contravention of any of the Rules Nos. 1 to 38. The non
obstante clause occurring in R.39 cannot be construed as
enabling the authority designated in the Rule to nullify by an
executive order the provisions contained in the remaining
rules. The expression `notwithstanding anything contained in
these rules' occurs in various other rules contained in Part II
also for example,see R.3(c), R.9(c), R.9(d), R.13AA. R.17A,
R.30, R.35(f) and R.37. An examination of the context in
which these ((identical words have been used in the other
rules reveals that the object underlying the incorporation of
the non obstante clause is only to declare that in regard to
the particular topic dealt with in the concerned rule, where
the clause occurs, the provisions of the said rule shall prevail,
notwithstanding anything to the contrary contained in any of
the other rules contained in Part II or in the special rules. In
other words, the intention is not that the particular rule
where the clause occurs will override the provisions of all the
remaining rules in respect of all matters; it only means that
for the limited purpose of effectuating the provision of that
particular rule in relation to its subject-matter the other rules
would not stand in the way. In our view, it is this restricted
interpretation that is to be given to the non obstante clause
occurring in R.39 also and it will not be correct to understand
the said rule as giving a carte blanche to the authority named
in it to cast to the winds the provisions contained in the
general or special rules and in dealing with the cases of any
set of officers. As pointed out by the Supreme Court in S. G.
Jaisinghani v. Union of India & Others (AIR. 1967 S. C.
1427), "the absence of arbitrary power is the first essential of
the rule of law upon which our whole constitutional system is
based. In a system governed by rule of law, discretion, when
conferred upon executive authorities, must be confined
within clearly defined limits. The rule of law from this point of
view means that decisions should be made by the application
of known principles and rules and, in general, such decisions
should be predictable and citizen should know where he is."

20. Ordinarily, therefore, it is not expected that the
power under R.39 should be resorted to merely for the
purpose of getting round the provision contained in any of the
general rules or special rules. R.39 is to be invoked only to

W.P(C) Nos. 21381 & 25988 of 2006
& W.P(C) No. 20342 of 2008 -: 10 :-

meet exceptional situations where gross injustice or inequity
is seen to result from the application of the rules in all their
rigour. In such cases and such cases alone, R.39 empowers
the designated authority to mete out equity and justice by
passing appropriate orders in relaxation of the provisions of
the rules concerned.

21. We may now summarise the conclusions that
emerge from the preceding discussion. We hold that R.39 is
valid and that it does not suffer from the vice of arbitrariness
or excessive delegation. We are of the view that the said Rule
does not warrant the passing of any general order with
respect to any undefined or large group of persons exempting
them from the operation of any existing rule or granting a
relaxation of the rules in favour of such a group. The rule only
authorises the authority designated therein to deal with any
specific case or cases of individual officers and to pass orders
in a just and equitable manner after a full application of the
mind of the authority to all the relevant facts and
circumstances necessary for a proper determination of the
question as to what would constitute justice and equity. In
exercising this power it is open to the authority to relax the
rigour of the rules to such extent as may be necessary to
ensure justice and equity, but it cannot completely nullify the
operation and effectiveness of the rules in the guise of
relaxing their rigour. If, however, special circumstances do
exist warranting a valid classification of the particular case or
cases it will also be open to the authority exercising the
power under R.39 to accord a special treatment in respect of
such exceptional cases even by exempting the person or
persons concerned from the operation of any particular rule.
In saying this we consider it necessary to emphasise that
such a course will be permissible only in those rare cases
where very strong grounds exist justifying a valid
classification of the cases of the officers in question for the
purposes of Art.14 and 16 of the Constitution. In determining
what is `just and equitable' the authority should take into
account the overall effect that the proposed order would have
in relation not merely to the particular officers whose cases
are specifically dealt with by it but also to all others
belonging to the same service, category or class. The mere
fact that the enforcement of a rule creates hardship to an
officer or a group of officers will be no ground for invoking
the power under R.39, because it must be assumed that the
possibility of the causation of any such hardship must have
been duly taken into account at the time when the rule in

W.P(C) Nos. 21381 & 25988 of 2006
& W.P(C) No. 20342 of 2008 -: 11 :-

question was made and the rule-making authority has
nevertheless thought it fit to enact such a provision.

(Underlining supplied)

The Full Bench further held thus in paragraphs 25 and 26

thus:

"25. The possibility of the proposed order having an
adverse effect on the rights of other employees is, however,
a matter vitally relevant for determining whether the course
of action proposed would be `just and equitable". It is
mandatory on the part of the authority exercising the power
under R.39 to apply its mind to this important aspect also
before taking a final decision to invoke R.39 in each specific
case, because it will not be "just or equitable" if for the
purpose of relieving some genuine hardship that may exist
in the case of an individual officer, undue prejudice or
hardship is caused to others.

26. We have already made it clear that R.39 cannot
be regarded as conferring an arbitrary power to ignore the
existing service rules and to deal with cases of any officer or
officers in violation of the existing rules. Its main purpose,
as we see it, is to invest the authority designated in it with
the power to relax the rigour of the rule in regard to
matters that are merely procedural or incidental in nature
and which do not go to the root of any of the substantive
service conditions dealt with in the rules. We have also
indicated that in rare and exceptional cases where there are
valid grounds for a reasonable classification, it is
permissible under R.39 to accord a special treatment by
granting a partial or even total relaxation of a substantive
provision contained in the rules."

(Underlining supplied)

9. After referring to the Full Bench decision, a Division

Bench of this Court held thus in paragraph 23 of Koyit

Joseph's case (supra) thus:

W.P(C) Nos. 21381 & 25988 of 2006
& W.P(C) No. 20342 of 2008 -: 12 :-

"We have to understand R.39 of the K.S.S.R. as
giving power to the Government to set right matters, when
otherwise there was imminent hardship or illegalities. What
was contemplated was a relaxation in public interest.
Appointments to the Police Force are to be made with
reference to the rules framed under Public Services Act and
it should not be mistaken that R.39 of the K.S.S.R. by itself
confers a special sui juris or exclusive power than that is
prescribed by the Special Rules. The Special Rules as well
as the general rules are to be deemed as issued under the
Public Services Act, vide S.2 read with S.3 of the Act. It is
not as if the Public Services Act is subservient to R.39 of
the K.S.S.R. in fact the parent Act requires full obedience.
The foundation for invocation of power under the Rule is
justice and equity. The petitioner in the O. P. cannot
contend that what was proposed to be given to him was a
fresh appointment he being a serving officer. So much so,
Government was obliged to recognise the presence of third
persons, and claims of his seniors. This is because the
petitioner do only come within the first category spoken to
by the Rules viz., a case where it deals with a person
already in service. Of course, in the case of a fresh
candidate, who is yearing for appointment, Government has
power to relax, as could be gatherable from the latter part
of the Rules, but the petitioner cannot claim that he belongs
to this general. Therefore, we have to notice that the
principles laid down by the Full Bench in Sreedharan
Pillai's case would have relevance. The loss of seniority
which was to befall on the appellants therefore could not
have been overlooked. Such persons were likely to be
seriously affected and prejudiced. The judgment and
consequential order Annexure.A therefore offended
principles of fair play, natural justice and requires to be
annulled."

(Underlining supplied)

10. The validity of the order impugned in these cases

has to be tested in the light of the law laid down thus. Here,

in this case, the 4th respondent has just entered service. In

W.P(C) No. 21381/2006, the petitioner has stated in

paragraph 5 that recruitment to 2 vacancies earmarked

under Note 2 of Rule 3(3) was pending for a long time. The

W.P(C) Nos. 21381 & 25988 of 2006
& W.P(C) No. 20342 of 2008 -: 13 :-

petitioners have already put in 12 years and 10 years

respectively. It is not as if there were large number of

vacancies and dearth of qualified candidates proportionate

to the vacancies. As laid down by the Full Bench, the

guiding principle in the exercise of the powers under Rule

39 is that it must be just and equitable or in other words

gross injustice and inequity must be seen to result from the

application of the rules in all its rigour. The 4th respondent

was at the relevant time just 34 years old and just entered

service. He does not have any exceptional merit or other

qualifications. In fact, if recruitment was made at the

appropriate time for the 2 vacancies immediately after the

vacancies arose, he would not have been in service even to

enable him to apply for the post, let alone to seek

exemption, whereas the petitioners had already acquired

all the qualifications at the time of arising of the vacancies.

Therefore, no injustice and inequity would result from the

application of the rule of requirement of two years' service

qualification if the 4th respondent is not given exemption

from that qualification. His service as lecturer in an

engineering college, that too, in a self financing one, is not

comparable to that of Overseer in P.W.D, so as to give

exemption solely based on his qualification as lecturer. I am

not satisfied that non-consideration of the 4th respondent for

selection would result in gross injustice or inequity of any

kind.

11. Further, I find considerable merit in the contention

W.P(C) Nos. 21381 & 25988 of 2006
& W.P(C) No. 20342 of 2008 -: 14 :-

of the petitioner of non-application of mind by the

Government while passing the impugned order, which reads

thus:

"Government of Kerala

ABSTRACT

PWD - Establishment - Sri. D.S. Shyamkumar, Ist Grade
Overseer - Exemption from minimum service condition for
direct recruitment as Assistant Engineer - Orders Issued -
------------------------------------------------------------------------------------------
PUBLIC WORKS (A) DEPARTMENT
GO(Rt) No.430/06/PWD Dated, Thiruvananthapuram,16.6.06
------------------------------------------------------------------------------------------
ORDER

Sri. D.S. Shyamkumar, Ist Grade Overseer, PWD Electrical Division, Thiruvananthapuram who is a graduate in Electrical and Electronics Engineering has requested for exemption from the condition regarding minimum service of two years required for appointment as Assistant Engineer against the quota to be filled up by direct recruitment from among the departmental candidates since he has 3 years and 8 months service as Lecturer in Engineering College under Anna University. The Chief Engineer, PWD Admn. has recommended the request.

Government having examined the request in detail are pleased to exempt Sri. D.S. Shyamkumar Ist Grade Overseer from the condition regarding minimum requirement of two years service as Ist Grade Draftsman in PWD prescribed in Note 2 (i) under Rule 2 of the Kerala Engineering Subordinate Service, Electrical Branch - Special Rules for applying for the post of Assistant Engineer (Electrical) under departmental quota in PWD as a special case." The last date for submitting application was 21.6.2006. The 4th respondent filed his representation seeking exemption on 23.5.2006. The 2nd respondent recommends his case for exemption on 27.5.2006. The Government passes the impugned order on 16.6.2006. No attempt was made to W.P(C) Nos. 21381 & 25988 of 2006 & W.P(C) No. 20342 of 2008 -: 15 :- verify the genuineness of the certificate produced by the 4th respondent. The respondent seems to have simply accepted the same as under the Anna University. No attempt seems to have been made to compare the two services to consider whether the same are comparable. There is no mention whatsoever in the impugned order as to what are the exceptional circumstances available in favour of the 4th respondent to exercise the powers under Rule 39, failing which gross injustice and inequity would result. There is no mention of the gross injustice and inequity which would result if the rigour of the rules is allowed to apply to the 4th respondent. The Full Bench has categorically held that the possibility of the order of exemption having an adverse effect on the rights of other employees is vitally relevant for determining whether the course of action proposed would be just and equitable. In the impugned order, it is not even adverted to. In fact, the rules themselves are misquoted as Kerala Engineering Subordinate Service, whereas the post is borne on the Kerala Engineering Service. Of course, it is true that formerly the post was in the Subordinate Service and it was later made part of the State Service by bodily lifting the rule from Subordinate Service Rules and incorporating the same verbatim in the State Service Rules. But the mistake points to the lack of application of mind by the Government while granting the exemption, which is contrary to the Full Bench decision in Sreedharan Pillai's case (supra). In fact, from the order, it appears that the W.P(C) Nos. 21381 & 25988 of 2006 & W.P(C) No. 20342 of 2008 -: 16 :- Government granted the exemption only because the Chief Engineer recommended the exemption. The reason stated by the 4th respondent for exemption is only that he has 3 years and 8 months of service as Lecturer in Engineering College under the Anna University. That hardly qualifies for exemption and lack of application of mind is writ large on the order since none of the relevant considerations have gone into the decision as to what is the injustice and inequity if exemption is not granted to the 4th respondent.

12. In this connection, I find it necessary to refer to paragraph 27 of Sreedharan Pillai's case (supra), which reads thus:

"27. We shall now deal with the further contention advanced on behalf of the petitioners that even if R.39 is to be regarded as authorising the making of an order which will adversely affect other persons in the service, natural justice requires that any such order should be passed only after affording to all the persons likely to be affected an opportunity to make their representations. As pointed out by the Supreme Court in A. K. Kaipak & Others v. Union of India & Others (AIR. 1970 SC. 150), the rules of natural justice are not embodied rules nor can they be straight-jacketed into a rigid formula. What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case. Without intending to be exhaustive, we may state that the obligation to give a hearing to persons likely to be affected will arise in all cases where the order proposed to be passed under R.39 will have the direct consequence of affecting the settled seniority or rank of any of the other persons in the service or of upsetting promotions already given to them. It appears to us beyond doubt that any such order can be validly passed only after giving to those persons likely to be affected an opportunity of making their representations concerning the matter."

Here, granting of exemption from qualification and W.P(C) Nos. 21381 & 25988 of 2006 & W.P(C) No. 20342 of 2008 -: 17 :- consideration for appointment of the 4th respondent would affect the chances of senior claimants like the petitioners and if the 4th respondent is appointed, he would steal a march over the petitioners in service. That being so, going by the Full Bench decision quoted above, the petitioners were entitled to be heard on the question of grant of exemption to the 4th respondent, which was not granted by the Government, which would violate the impugned order. But, after the said decision, the Supreme Court has, in Venkateswaralu v. Government of A.P, (1996) 5 SCC 167, held that when relaxation is granted to an individual officer from the period of service required for promotion, it is not necessary to give any notice to all the affected parties before exercising the power under the Rule. But that certainly emphasizes the necessity of the Government giving anxious consideration as to how the same would affect others in service and to keep in mind the comparative hardships as between the 4th respondent and others who already have all the qualifications. In this case, there is nothing on record to show that the Government had considered this aspect before passing the impugned order. Rather a reading of the order shows that all what the Government considered as relevant is that the 4th respondent had experience as a lecturer in an Engineering College in Tamilnadu. In fact, the Government had not even considered as to whether such experience is comparable to the service as Overseer in the P.W.D. As such, there is total W.P(C) Nos. 21381 & 25988 of 2006 & W.P(C) No. 20342 of 2008 -: 18 :- non-application of mind in passing the impugned order. On the other hand, it peters out into an act of conferring of an undeserved benefit on the 4th respondent to unduly favour him, without considering comparative hardship or whether it is just and equitable, which is the essence of Rule 39 as laid down in Sreedharan Pillai's decision (supra) of the Full Bench. Further, in the decision of Ashok Kumar Uppal v. State of J & K, (1998) 4 SCC 179, the Supreme Court held that the Government can exercise the power to relax the Rules in all those cases in which hardship is caused in the implementation of those Rules to meet a particular situation, where injustice has been caused to either individual employee or class of employees. It was further cautioned that the power cannot be exercised to give undue advantage or favour to an individual employee. Here, what the Government had done was to do exactly what the Supreme Court held that the Government cannot do.

13. I also find considerable merit in the reliance by the petitioners on the decision of the Supreme Court in Suraj Parkash Gupta's case (supra), in paragraph 28 of which, it is held thus:

28. The decisions of this Court have recently been requiring strict conformity with the Recruitment Rules for both direct recruits and promotees. The view is that there can be no relaxation of the basic or fundamental rules of recruitment. In Keshav Chandra Joshi v. Union of India (1992 Supp (1) SCC 272 : 1993 SCC (L&S) 694 :

1993 (24) ATC 545) the Rule permitted relaxation of the conditions of service and it was held by the three Judge Bench that the Rule did not permit relaxation of Recruitment Rules. The words "may consult W.P(C) Nos. 21381 & 25988 of 2006 & W.P(C) No. 20342 of 2008 -: 19 :- PSC" were, it was observed, to be read as "shall consult PSC" and the Rule was treated as mandatory. In Syed Khalid Rizvi v. Union of India (1993 Supp (3) SCC 575 : 1994 SCC (L&S) 84 : 1994 (26) ATC

192) decided by a three Judge Bench, a similar strict principle was laid down. The relevant Rule -- R.3 of the Residuary Rules (see p.

603, para 33) in that case did permit relaxation of the "Rules". Even so, this Court refused to imply relaxation of Recruitment Rule and observed:

"The condition precedent, therefore, is that there should be an appointment to the service in accordance with rules and by operation of the rule, undue hardship has been caused, .... It is already held that conditions of recruitment and conditions of service are distinct and the latter is preceded by an appointment according to rules. The former cannot be relaxed.""

Here, 2 years' service as overseer in PWD is a requisite qualification prescribed in the Special Rules. Going by the Supreme Court decision, that qualification could not have been validly relaxed as done by the impugned order of the Government.

14. The 4th respondent heavily relies on Exts.R4(d) and R4(e) decisions of two Division Benches of this Court.. But, as pointed out by the counsel for the petitioners, the said decisions are clearly distinguishable on facts. First of all, in both cases, the validity of the exercise of powers under Rule 39 in favour of the person in whose favour the exemption was granted was not an issue at all. In both cases, it is the person in whose favour exemption was granted who approached this Court, in the first case, challenging the order of the Public Service Commission refusing to grant the exemption on the ground that Public Service Commission was not consulted before granting the W.P(C) Nos. 21381 & 25988 of 2006 & W.P(C) No. 20342 of 2008 -: 20 :- exemption and in the second case, since the petitioner therein was denied selection because as on the last date of submitting applications, he was not qualified as the petitioner therein applied for exemption after the last date for submitting applications. In Ext. R4(d) judgment, the only issue arising therein was whether the Public Service Commission required to be consulted before issue of the order under the Rule. There, the Division Bench found that there were 37 vacancies available to be filled up by departmental candidates, but only 26 were filled up. Such a situation is not available in this case. in Ext. R4(e) judgment also, the number of candidates that could be selected from the departmental quota was 13, out of which including the petitioner in that case, who was granted exemption the employees selected were only 11. Further, in that case, that person had comparable service in an identical post in Kerala State Electricity Board. Apart from the same, in this case, the petitioners are challenging the very exercise of the power under Rule 39 by the Government in favour of the 4th respondent unlike in those decisions, where the person who was granted exemption approached this Court challenging the action of the Public Service Commission in not granting selection despite the exemption granted. Therefore, I am of opinion that those decisions, which are clearly distinguishable on facts, cannot be pressed into service for supporting the impugned order in this case.

W.P(C) Nos. 21381 & 25988 of 2006 & W.P(C) No. 20342 of 2008 -: 21 :-

15. For all the aforesaid reasons, I am not satisfied that the Government has exercised their powers under Rule 39 of the K.S and S.S.R to grant exemption to the 4th respondent from the requisite service qualification under the Special Rules validly. Accordingly, the impugned order in the two writ petitions are quashed. It is declared that the exemption granted to the 4th respondent from the service qualification of 2 years as Overseer Grade I or II is invalid and therefore the common 4th respondent in both cases is not eligible to be considered for selection to the post of Assistant Engineer (Electrical) in the Public Works Department, pursuant to Ext.P1 notification issued by the Public Service Commission, for want of the service qualification prescribed in the Rules.

W.P(C) No. 20342/2008

16. This writ petition is also filed by the petitioner in W.P(C) No. 25988/2006, but for different reliefs against a different respondent. In the selection process pursuant to the notification inviting applications issued by the Public Service Commission, the petitioner and three others including the 4th respondent in this writ petition wrote the written examination. But the petitioner was not called for interview on the ground that the petitioner did not secure the minimum cut off marks. According to the petitioner, the Public Service Commission is not competent to fix cut off marks for the written examination or in the oral W.P(C) Nos. 21381 & 25988 of 2006 & W.P(C) No. 20342 of 2008 -: 22 :- examination without mentioning the same in the notification or the procedure. In support of this contention, the petitioner relies on the decision of a Division Bench of this Court in Ajayan v. State of Kerala, 2006(3) KLT 854. Therefore, the petitioner challenges her exclusion from the further selection process after the written test. She challenges the inclusion of the 4th respondent in the selection process also, on the ground that the 4th respondent being an Overseer (Generator Mechanic) is not eligible for consideration for appointment by direct recruitment in the department quota, since such direct recruitment can be made only from among First and Second Grade Overseers/Draftsmen (Electrical) and Clerks in the Public Works Department and Overseer (Generator Mechanic) can aspire only for appointment by transfer. The petitioner therefore seeks the following reliefs:

"i. call for the records leading to Exts.P3 and P4 and quash them by the issuance of a writ of certiorari or any other appropriate writ, order or direction.

ii. declare that the 4th respondent is not qualified and eligible to apply for selection to the post of Assistant Engineer (Electrical) in the Public Works Department under the Departmental quota and to get selected and appointed, pursuant to Ext.P1 notification.

iii. issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents not to admit the application submitted by the 4th respondent pursuant to Ext.P1 and consider him for selection and appointment pursuant to Ext.P1.

iv. declare that fixation of cut off marks of 50 for the selection pursuant to Ext.P1 is illegal and without W.P(C) Nos. 21381 & 25988 of 2006 & W.P(C) No. 20342 of 2008 -: 23 :- jurisdiction.

v. issue a writ of mandamus or any other appropriate writ, order or direction commanding the 3rd respondent to waive the cut off mark for the written test pursuant to Ext.P1 since there were only two qualified candidates as against the two notified vacancies.

vi. issue a writ of mandamus or any other appropriate writ, order or direction commanding the 3rd respondent to advise the petitioner for appointment as Assistant Engineer (Electrical) pursuant to Ext.P1 and the 2nd respondent to appoint her, within a time limit to be fixed by this Hon'ble Court."

17. The first respondent State of Kerala, the 3rd respondent Public Service Commission and the 4th respondent have filed counter affidavits. All three of them justify the inclusion of the 4th respondent in the selection process on the basis of an amendment to the Rule 2(a)(3) by G.O(P) No. 42/94/PW & T dated 3.6.1994. The Public Service Commission justifies the exclusion of the petitioner from interview on the basis of Rule 11(iii) of the Public Service Commission Rules of Procedure, as per which, the Public Service Commission is empowered to take a decision on the minimum marks for inclusion in the ranked list.

18. I have considered the rival contentions in detail. I shall first deal with the issue of exclusion of the petitioner from interview on the basis of cut off marks in the written test. In the counter affidavit of the Public Service Commission, the averments of the petitioner are answered in paragraph 10 thereof, thus:

W.P(C) Nos. 21381 & 25988 of 2006 & W.P(C) No. 20342 of 2008 -: 24 :- "It is submitted that regarding the contention of the petitioner in fixing cut off marks it is stated that as per Rules of Procedure Part I Rule II (iii) 'A decision regarding the minimum or minima of marks or inclusion in the ranked list shall be taken by the Commission in respect of all selections made by them. It is further respectfully submitted that the ranked list is ready for publication but has been deferred in obedience to the interim orders issued by this Hon'ble Court in W.P(C) No.(C)25988/06"

Strangely, the Public Service Commission does not state as to whether the Commission had taken any decision to fix any minimum marks for inclusion in the short list or in the ranked list before the selection process started. They do not even state as to what was the cut off marks adopted and what were the marks scored by the petitioner and others.

But, in the counter affidavit of the Public Service Commission in W.P(C) No. 25988/206, they have stated that candidates who secured 38 marks and above were included in the short list and that the petitioner was not called for interview as she failed to score sufficient marks in the written test, without stating as to what marks she scored.

19. The issue as to the circumstances under which and the manner in which the Public Service Commission can fix cut off marks is no more res integra. A Division Bench of this Court has in Ajayan's case (supra) following several Supreme Court decisions on the subject, held thus in paragraphs 5 and 6 thus:

"5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . It is true that when number of vacancies are very large, W.P(C) Nos. 21381 & 25988 of 2006 & W.P(C) No. 20342 of 2008 -: 25 :- PSC can make a procedure for screening for eliminating undeserving candidates and taking into account the number of vacancies to be filled up. In the absence of fixation of cut off marks in the notification and in the rules, fixation of cut off marks cannot be made as a criteria, especially as was done in this case. Here, the short list was prepared as can be seen from Ext.P9 and petitioners' names were not included as they obtained only 64% marks. We also agree that in order to improve the quality of service, PSC will be entitled to fix cut off marks in the written examination or in the oral examination to weed out incompetent candidates provided the PSC shall make it clear in the notification itself. But, cut off marks cannot be prescribed without mentioning it in the notification or in the procedure. Averments will show that PSC decided about the cut off marks after written examination was over. To avoid interviewing large number of candidates and as held in Manjit Singh's case, screening can be done by eliminating persons in the lower rank. If 100 vacancies are there, PSC can eliminate all candidates below 300 or 500 in the ranking in written examination. But, there should be some rationale. The counter affidavit in this case shows that 100 vacancies were advised before 15-3-2005 and the list will continue for another two years. If anticipated vacancies also are taken into account, 139 candidates selected will not be sufficient and cut off marks prescribed after written examination was over considering the number of candidates required is against the norms mentioned by the Supreme Court.

6. We also note that Manjit Singh's case was later quoted with approval by another three-member Bench decision of the Supreme Court in Inder Parkash Gupta v. State of Jammu and Kashmir & Ors. (AIR 2004 SC 2523) wherein it was held as follows:

"28. R.133 of the Jammu and Kashmir Medical (Gazetted) Service Recruitment Rules, 1979 admittedly were issued under S.124 of the Jammu and Kashmir Constitution which is in pari materia with Art.309 of the Constitution of India. The said Rules are statutory in nature. Public Service Commission is a body created under the Constitution. Each State constitutes its own Public Service Commission to meet the constitutional requirement for the purpose of discharging its duties under the Constitution. Appointment to service in a State must be in consonance with the constitutional provisions and in conformity with the autonomy and freedom of W.P(C) Nos. 21381 & 25988 of 2006 & W.P(C) No. 20342 of 2008 -: 26 :- executive action. 133 of the Constitution imposes duty upon the State to conduct examination for appointment to the services of the State. The Public Service Commission is also required to be consulted on the matters enumerated under S.133. While going through the selection process the Commission, however, must scrupulously follow the statutory rules operating in the field. It may be that for certain purposes, for example, for the purpose of shortlisting, it can lay down its own procedure. The Commission, however, must lay down the procedure strictly in consonance with the statutory rules. It cannot take any action which per se would be violative of the statutory rules or makes the same inoperative for all intent and purport. Even for the purpose of short-listing, the Commission cannot fix any kind of cut-off marks. (See: State of Punjab and others v. Manjit Singh & Ors.- ( (2003) 11 SCC 559)."

So, shortlisting should not be done in an arbitrary manner and it should relate not only to the existing vacancies, but also, to the anticipated vacancies and it is always better to prescribe the manner why shortlisting is done before the selection process starts."

(Underlining supplied)

20. In this case, there is no question of shortlisting insofar as there were only four qualified candidates for two vacancies. No cut off marks have been prescribed anywhere, not in the notification in any way. The Public Service Commission has no case that as contemplated in Rule 11(iii), the Commission had taken a decision on the minimum marks for inclusion in the short list or for the process of interview or for inclusion in the ranked list. In the counter affidavit in this writ petition, it is not even stated as to what was the cut off marks fixed and what marks the petitioner did score. A vague statement is made in the counter affidavit in W.P(C) No. 25988/2006 that W.P(C) Nos. 21381 & 25988 of 2006 & W.P(C) No. 20342 of 2008 -: 27 :- candidates who secured 38 marks and above were included in the short list and that the petitioner was not called for interview as she failed to score sufficient marks in the written test, without specifying as to what marks the petitioner scored. This is clearly contrary to the decision in Ajayan's case. Therefore, I have no hesitation to hold that the exclusion of the petitioner from further selection process after the written test is clearly illegal and unsustainable. It is declared so.

21. The next question is as to the validity of the inclusion of the 4th respondent in the selection process on the ground of eligibility. I have already quoted Rule 2(3) of the Special Rules applicable in this case in the beginning of this judgment. There are two sources of recruitment, (i) by direct recruitment and (ii) by transfer. The persons eligible to apply for appointment by transfer are Overseers/Draftsmen Grade I and Overseer (Generator Mechanic). For direct recruitment one post out of five are set apart for First and Second Grade Overseers/Draftsmen (Electrical) and Clerks in the PWD provided they have the qualifications prescribed in Note 2 of Rule 3(3). The amendment by Government Order dated 3.6.1994 is to Rule 2(a)(3) in respect of appointment by transfer. In paragraphs 6 and 7 of the counter affidavit of the Public Service Commission , it is stated thus:

"6. It is most respectfully submitted that the special rules have been amended by Govt. vide GO(P)No.42/94/PW & T W.P(C) Nos. 21381 & 25988 of 2006 & W.P(C) No. 20342 of 2008 -: 28 :- dt. 03-06-1994, and it is seen that there is a slight difference in the wordings in the original and amended Govt. Order. In the Original Govt. Order it is mentioned that appointment to the category of Assistant Engineer (Electrical) shall be made by (i) direct recruitment and (ii) "by promotion" from the categories of Overseer/Draftsman grade I and Overseer (Generator Mechanic) and in the amended Govt. Orders "by promotion is replaced by "by transfer".

7. It is most respectfully submitted that in response to the letter issued from the office of the Commission to clarify whether the category of Overseer (Generator Mechanic) can be considered for the post, the Chief Engineer, PWD in his letter No.ECI-10634/05 dated.06-08-08 has informed that as per the amended Govt. Order, Generator Mechanic is eligible for the post of Assistant Engineer by transfer method".

From the Special Rules, it is abundantly clear that the 4th respondent can aspire for selection only in the category of appointment by transfer, and not in the category of appointment by direct recruitment.

22. Nobody has any case that this selection is for appointment in the category of appointment by transfer. On the other hand, it is everybody's case that this selection is under Note 2 to Rule 3(3) which relates to direct recruitment from among First and Second Grade Overseers/Draftsmen (Electrical) and Clerks in the PWD in the 20% posts set apart for the said categories. The 4th respondent being a person not belonging to any one of those categories, is clearly not even eligible to apply for selection pursuant to Ext.P1 Notification issued by the Public Service Commission. Therefore, his inclusion in the selection process is clearly against the recruitment rules and is W.P(C) Nos. 21381 & 25988 of 2006 & W.P(C) No. 20342 of 2008 -: 29 :- therefore illegal and unsustainable. I am surprised to find that the Public Service Commission readily accepted the explanation furnished by the Government although they knew that the amendment referred to by them was only substituting 'by transfer' for 'by promotion'. I am of opinion that a constitutional body that the Public Service Commission is, ought not to have accept

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