Kerala High Court
Sarathkumar.K vs State Of Kerala on 30 November, 2020
Equivalent citations: AIRONLINE 2020 KER 1131
Author: Shaji P. Chaly
Bench: S.Manikumar, Shaji P.Chaly
O.P(KAT) No. 506/2019 & batch : 1:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
MONDAY, THE 30TH DAY OF NOVEMBER 2020 / 9TH AGRAHAYANA, 1942
OP(KAT).No.506 OF 2019
AGAINST THE ORDER/JUDGMENT IN OA 1535/2019 OF KERALA
ADMINISTRATIVETRIBUNAL, THIRUVANANTHAPURAM
PETITIONERS/APPLICANTS:
1 SARATHKUMAR.K
AGED 39 YEARS
S/O. KRISHNANKUTTY NAIR, MELECHIL VEEDU, ANNOOR,
THIRUMALA P.O., THIRUVANANTHAPURAM-695 006. NOW
WORKING AS SENIOR GRADE ASSISTANT, GENERAL
ADMINISTRATION DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
2 HARIKUMAR K.
AGED 48 YEARS
S/O. KARUNAKARAN NAIR, KARUNAKARA VILASOM,
NETHAJIPURAM, SANTHIGIRI, VENJARAMOODU P.O.,
THIRUVANANTHAPURAM-695 589 NOW WORKING AS SECTION
OFFICER, GENERAL ADMINISTRATION DEPARTMENT,
SECRETARIAT, THIRUVANANTHAPURAM-695 001.
BY ADVS.
SRI.R.T.PRADEEP
SRI.V.VIJULAL
SMT.M.BINDUDAS
SRI.K.C.HARISH
SRI.S.SREEKUMAR (SR.)
RESPONDENTS/RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY CHIEF SECRETARY, GOVERNEMNT OF KERALA,
SECRETARIAT, THIRUVANANTHAPURAM-695 001.
2 SECRETARY TO GOVERNMENT
PERSONNEL AND ADMINISTRATIVE REFORMS DEPARTMENT,
SECRETARIAT, THIRUVANANTHAPURAM-695 001.
O.P(KAT) No. 506/2019 & batch : 2:
3 ABHILASH RAVEENDRAN
AGED 40 YEARS
S/O. M.C.RAVEENDRAN, ACCOUNTS OFFICER, FINANCE
DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695 001, RESIDING AT SAAFALYA, KRA
181, THARATTAYIL, NALANCHIRA P.O., THIRUVANANTHAPURAM,
KERALA-695 015.
4 SUSIKUMARY S
AGED 38 YEARS
D/O. SUKUMARAN, ASSISTANT SECTION OFFICER, TRANSPORT
DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695 001, RESIDING AT RAMA BHAVAN,
KOTTANKARA, KOLLAM-691 005.
5 VIPIN SHYAM V.V.
AGED 33 YEARS
S/O. VIJAYAN, SENIOR ASSISTANT, FINANCE DEPARTMENT,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001,
RESIDING AT VIPIN NIVAS, MADATHIL NADA, THIRUVALLAM
P.O., THIRUVANANTHAPURAM-695 027.
6 ADDL.R6 IMPLEADED:
KERALA PUBLIC SERVICE COMMISSION
REPRESENTED BY ITS SECRETARY, OFFICE OF KERALA PUBLIC
SERVICE COMMISSION, PATTOM P.O., THIRUVANANTHAPURAM-
695 004.
(ADDL.R6 IMPLEADED AS PER ORDER DATED 05.12.2019 IN I.A.
NO. 2/2019)
R5 BY ADV. SRI.K.SIJU
R5 BY ADV. SRI.S.ABHILASH
R5 BY ADV. SMT.S.SEETHA
R5 BY ADV. SMT.ANJANA KANNATH
R6 BY SRI.P.C.SASIDHARAN, SC, KPSC
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY
HEARD ON 30.11.2020, ALONG WITH OP(KAT).58/2020,
WP(C).31428/2019), WP(C).20322/2020, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
O.P(KAT) No. 506/2019 & batch : 3:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
MONDAY, THE 30TH DAY OF NOVEMBER 2020 / 9TH AGRAHAYANA, 1942
OP(KAT).No.58 OF 2020
AGAINST THE ORDER DATED 28.11.2019 IN OA (EKM) 2009/2019 OF KERALA
ADMINISTRATIVETRIBUNAL, THIRUVANANTHAPURAM
PETITIONERS/APPLICANTS 3 & 4:
1 REEJA N.,
AGED 46 YEARS
WORKING AS SECTION OFFICER IN GENERAL ADMINISTRATION
DEPARTMENT, GOVERNMENT SECRETARIAT, W/O.SUNIL
KUMAR.P.V., RESIDING AT PUTHIYA VEETTIL, OPP.RAJAS HSS,
CHIRAKKAL R.S.(PO), KANNUR-670 011, (MOBILE NO.-
9446178655).
2 DHANESH.P.N., AGED 35 YEARS,
WORKING AS SENIOR GRADE ASSISTANT IN GENERAL
ADMINISTRATION DEPARTMENT, GOVERNMENT SECRETARIAT,
S/O.NARAYANAN NAIR, RESIDIN AT PARUTHIPARAMBIL HOUSE,
PUTHENCRUZ (PO), ERNAKULAM-682 308, (MOBILE
NO.9746825979).
BY ADVS.
SRI.K.P.DANDAPANI (SR.)
SRI.MILLU DANDAPANI
SRI.PREMCHAND R.NAIR
SRI. SIRAJ ABDUL SALAM
RESPONDENTS/RESPONDENTS AND APPLICANTS 1 AND 2 (AND SUPPLEMENTAL
RESPONDENT TO BE IMPLEADED:
1 STATE OF KERALA,
REPRESENTED BY CHIEF SECRETARY TO STATE, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM-695 001.
2 THE PRINCIPAL SECRETARY,
PERSONNEL AND ADMINISTRATIVE REFORMS DEPARTMENT,
O.P(KAT) No. 506/2019 & batch : 4:
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.
3 THE COMMITTEE CONSTITUTED FOR FORMULATING KERALA
ADMINISTRATIVE SERVICE
BY GO(RT) NO.322/2016/P AND ARD DATED 16.08.2016
REPRESENTED BY ITS CHAIRPERSON, ADDITIONAL CHIEF
SECRETARY (HOME AND VIGILANCE), GOVERNMENT
SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
4 THE ADMINISTRATIVE REFORMS COMMISSION
REPRESENTED BY ITS MEMBER SECRETARY, ADMINISTRATIVE
REFORMS COMMISSION, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
5 M.SHEEBU, BA, B.ED,
AGED 43 YEARS
WORKING AS ASSISTANT SECTION OFFICER IN GENERAL
ADMINISTRATION DEPARTMENT, GOVERNMENT SECRETARIAT,
S/O.K.BHARATHAN, RESIDING AT MOOLAKANDY HOUSE,
PACHAPOIKA P.O., KOOTHUPARAMBA (VIA), KANNUR-670 643,
(MOBILE NO.9495942402).
6 VINEETH.T.C., BA
AGED 31 YEARS
WORKING AS SENIOR GRADE ASSISTANT IN GENERAL
ADMINISTRATION DEPARTMENT, GOVERNMENT SECRETARIAT,
S/O.CHANDRAN.T.R., RESIDING AT THACHARAYIKKAL HOUSE,
CHELAKKODE P.O., THRISSUR-680 587, (MOBILE
NO.9446889825).
7 ADDL.R7 IMPLEADED:
KERALA PUBLIC SERVICE COMMISSION,
REPRESENTED BY ITS SECRETARY, OFFICE OF KERALA PUBLIC
SERVICE COMMISSION, PATTOM P.O., THIRUVANANTHAPURAM-
695 004.
(ADDL.R7 IMPLEADED AS PER ORDER DATED 30.11.2020 IN I.A.
NO. 1 OF 2020)
R7 BY SRI.P.C.SASIDHARAN, SC, KPSC
R1 & R2 BY SRI. ANTONY MUKKATH, GOVERNEMNT PLEADER
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY
HEARD ON 30.11.2020, ALONG WITH OP(KAT).506/2019 & BATCH, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
O.P(KAT) No. 506/2019 & batch : 5:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
MONDAY, THE 30TH DAY OF NOVEMBER 2020 / 9TH AGRAHAYANA, 1942
WP(C).No.31428 OF 2019(S)
PETITIONER/S:
SAMASTHA NAIR SAMAJAM (SNS)
REP. BY ITS GENERAL SECRETARY, KALYANI BUILDINGS,
PADANAYARKULANGARA NORTH, KARUNAGAPPALLY, KOLLAM
DISTRICT.
BY ADVS.
SRI.R.SUNIL KUMAR
SMT.A.SALINI LAL
SHRI.ARUN KRISHNA
RESPONDENT/S:
1 STATE OF KERALA
REP. BY CHIEF SECRETARY, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM - 695 001.
2 DEPARTMENT OF PERSONNEL AND ADMINISTARATIVE REFORMS
REP. BY PRINCIPAL SECRETARY, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM - 695 001.
ADDL.R3 & R4 IMPLEADED:
3 MINORITY INDIANS PLANNING AND VIGILANCE COMMISSION
TRUST,
REPRESENTED BY ITS CHAIRMAN V.K. BEERAN,
11/147, HOLY GHOST CONVENT ROAD, ALUVA KERALA-683 108.
[ADDL. R3 IS IMPLEADED AS PER ORDER DATED 12/12/2019 IN
IA.1/2019]
O.P(KAT) No. 506/2019 & batch : 6:
4 PATTIKAJATHI KSHEMA SAMITHY (PKS)
REG. NO.TVM/TC725/2018 TC 27/2253(3),
STATUE-GENERAL HOSPITAL ROAD, THIRUVANANTHAPURAM,
PIN-690 001, REPRESENTED BY ITS STATE SECRETARY,
MR.K. SOMAPRASAD M.P., S/O.KARUMPAN, AGED 62 YEARS,
VAISHNAVAM, MUTHUPILAKKADU WEST, PORUVAZHY P.O.,
KOLLAM, PIN-690 520.
[ADDL. R4 IS IMPLEADED AS PER ORDER DATED 15/01/2020 IN
IA. NO.1/2020]
R3 BY ADV. SMT.O.A.NURIYA
R3 BY ADV. HARIS BEERAN
R4 BY ADV. K.SIJU
R4 BY ADV. SRI.S.ABHILASH
R4 BY ADV. SMT.S.SEETHA
R4 BY ADV. SMT.ANJANA KANNATH
SRI.ANTONY MUKKATH GP FOR R1 AND R2,
SRI. HARIS BEERAN FOR R3,
SRI. K.SIJU FOR R4
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
30.11.2020, ALONG WITH OP(KAT).506/2019 & BATCH,, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
O.P(KAT) No. 506/2019 & batch : 7:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
MONDAY, THE 30TH DAY OF NOVEMBER 2020 / 9TH AGRAHAYANA, 1942
WP(C).No.20322 OF 2020(S)
PETITIONER/S:
SAMASTHA NAIR SAMAJAM (SNS),
REP. BY ITS GENERAL SECRETARY, KALYANI BUILDINGS,
PADANAYARKULANGARA NORTH, KARUNAGAPPALLY, KOLLAM
DISTRICT.
BY ADVS.
SRI.R.SUNIL KUMAR
SMT.A.SALINI LAL
RESPONDENT/S:
1 STATE OF KERALA
REP. BY CHIEF SECRETARY, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695001.
2 DEPARTMENT OF PERSONNEL AND ADMINISTRATIVE REFORMS,
REP. BY PRINCIPAL SECRETARY, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695001.
R1-2 BY ADV. SRI.V.TEKCHAND
R1-2 BY GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
30.11.2020, ALONG WITH OP(KAT).506/2019, OP(KAT).58/2020,
WP(C).31428/2019(S), THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
O.P(KAT) No. 506/2019 & batch : 8:
'CR'
Dated this the 30th day of November, 2020.
JUDGMENT
[OP(KAT) Nos. 506/2019 & 58 of 2020 & W.P.(C) Nos.
31428/2019 & 20322/2020 SHAJI P. CHALY, J.
The captioned Original Petitions are filed challenging the common order dated 28.11.2019 passed by the Kerala Administrative Tribunal, Thiruvananthapuram in O.A. Nos. 1535 of 2019 and 2009 of 2019, whereby the Administrative Tribunal dismissed the Original Applications and declined the challenge made against the amendment to the Kerala Administrative Service Amendment Rules, 2019 ('Amendment Rules, 2019' for short) made by the State Government as per notification dated 11.07.2019 amending certain provisions of the Kerala Administrative Service Rules, 2018 ('Rules, 2018' for short), and further held that the caste and community reservation made by the State Government for the recruitment of the employees to the Kerala Administrative Service from streams 2 and 3 as per the Amendment Rules, 2019 and reservation made to Stream 1 direct recruitment as it stood originally in the Rules, 2018 was O.P(KAT) No. 506/2019 & batch : 9: in accordance with law. The writ petitions tagged on are public interest litigations filed by a registered society basically challenging the caste and community reservation made by the State Government in Rules, 2018 as amended by Rules, 2019. Therefore, on agreement, we heard them together and proposed to pass this common judgment.
2. The prime and basic question originated for consideration is, whether the caste reservation made in the direct recruitment to the Kerala Administrative Service in accordance with the Amendment Rules, 2019 under streams 2 and 3 of the Rules, 2018, from among the employees of the various services under the Government is in accordance with law?. Incidentally, it is made clear that in O.P (KAT) No. 58 of 2020, caste reservation under Stream 1 by direct recruitment from open category is also under challenge. In order to answer the said question, relevant facts available from OP(KAT) No. 506 of 2019 is relied upon. The contentions in the writ petition and its maintainability would be considered separately .
3. Petitioners in OP(KAT) Nos. 506 of 2009 and 58 of 2020 are apparently applicants to the Kerala Administrative Service (KAS) and they are challenging Rules 2(1), 3(i), and 3(ii)(c) of the Amendment Rules, 2019, which was brought into force by O.P(KAT) No. 506/2019 & batch : 10: notification dated 11.07.2019, by which caste reservation and age relaxation are extended to streams 1, 2 and 3 of the Kerala Administrative Service Rules. According to the petitioners, they are qualified to aspire for by-transfer recruitment to KAS envisaged in the stream 2 under Rule 12 of the Rules, 2018. Which thus means, the petitioners are working in various disciplines of the State Government service, who are entitled to apply for Kerala Administrative Service Rules and they belong to non-reserved category.
4. Rules, 2018 was brought into force as per G.O.(P) No. 12/2017/P & ARD dated 29.12.2017 and published as per SRO No. 861 of 2017 by the State Government in exercise of the powers conferred by sub-Section (1) of Section 2 of Kerala Public Service Act, 1968, hereinafter called Act, 1968 r/w Section 3 thereof and in partial supersession and consequent amendments specified in the Rules to the Kerala Civil Service Executive Special Rules dated 21.08.1963, on and with effect from 01.01.2018. The objects sought to be achieved was to build a cadre of public servants as a second line of managerial talent for Government for effective implementation of the Government policies and programmes, to provide opportunities for growth for bright, talented and committed officers in Government Service and O.P(KAT) No. 506/2019 & batch : 11: prepare them for senior level administrative and managerial posts in public service, and to constitute the feeder category for the recruitment of the Indian Administrative Service Officers in Kerala cadre through appointment by promotion from State Civil Service category superseding the existing Rules in that regard.
5. The cadre strength at the entry level in KAS shall be limited to 10% of the sanctioned strength of the second gazetted post in the departments and equivalent posts in the common categories of posts in all departments as specified in Schedule I. The 10% gazetted post so set apart shall include higher grade posts and posts on account of ratio promotion also. Common Category posts shall include the posts of Administrative Officer, Administrative Assistant, Accounts Officer, financial assistant and posts earmarked for by-transfer appointment through KPSC in the cadre of the financial assistant. The 10% of the all promotion posts in the promotion posts for the second gazetted posts onwards in the departments in Schedule 1 and promotion posts for the equivalent common categories of posts onwards in all departments that are specified in Schedule I shall be set apart for promotion for officers in the KAS. Other provisions are also made in the Rules for computation of the total cadre strength, quinquennial review of O.P(KAT) No. 506/2019 & batch : 12: the cadre strength and the Government reserves the right to decide the total cadre strength of KAS from time to time by creating additional posts, if necessary and also to include/delete any department in schedule 1 from time to time.
6. As per Rule 5, the rules of reservation of appointment (General Rules 14 to 17) shall apply to the appointment by direct recruitment to KAS envisaged in stream 1 under Rule 12 -- method of appointment and qualification. Rule 6 deals with 'Constitution' and it specifies that KAS shall consist of the following category of officers: (i) KAS Officer (Junior Time Scale)
(ii) KAS Officer (Senior Time Scale); (iii) KAS Officer (Selection Grade Scale); and (iv) KAS Officer (Super Time Scale). The issue revolves around Rule 12 of the Rules, 2018, as it stood before amendment, which reads thus:
"12. Method of appointment and qualification.
(a) A candidate for appointment in KAS shall be in the manner specified in Column-2 and shall possess the qualification prescribed in the corresponding entry in Column-3 in Table below.O.P(KAT) No. 506/2019 & batch : 13:
Category Manner of Qualifications
Appointment
(1) (2) (3)
(1) KAS Officer By Direct (1) Must have completed 21 years
(Junior Time Scale) and must not have completed 32
Recruitment years of age as on 1st January of
STREAM 1 the year in which applications for
appointment are invited.
Relaxation of upper age limit will
be three years in the case of OBC
and five years in the case of
SC/ST.
(2) Must have obtained a
Bachelor Degree including
professional course in any
subject from a University
recognized by a University
established by Government of
Kerala or UGC or awarded by
National Institutes established by
the Government of India.
O.P(KAT) No. 506/2019 & batch : 14:
STREAM 2 By Transfer Recruitment (1)Must have completed 21
years and must not have
(from regular employees completed 40 years of age as on or Approved the first of January of the probationers in any year in which applications for Government appointment are invited.
Departments) Relaxation of upper age limit will be three years in the case of OBC and five years in the case of SC/ST.
(2) Must have obtained a
Bachelor Degree including
professional course in any
subject from a University
recognized by a University
established by Government of
Kerala or UGC or awarded by
National Institutes established by
the Government of India.
(3) Must be a regular
employee or an approved
probationer in any Government
Department and must not be a 1st
Gazetted officer or above in the
Departments in Schedule - 1
(4) Must have been regularized in
service in any cadre as per
Rule 10 (b) in the Kerala
State & Subordinate Services
Rules, 1958 or must have
served for a period of not less
than two years in a
supernumerary post in
Government and against
whom no major penalty has
been imposed or proceedings for
major penalty or criminal
proceedings is in progress.
O.P(KAT) No. 506/2019 & batch : 15:
STREAM 3 By transfer appointment (1) Must not have completed 50
(From candidates years of age on the 1st
st
holding 1 Gazetted post January of the year in which
or above in Departments application for appointment are
in the Schedule 1 and invited.
equivalent posts in
Common Categories (2) Must have obtained a
listed in Schedule I) Bachelor Degree in any subject
including professional course from
a University recognized by a
University established by
Government of Kerala or UGC or
awarded by National Institutes
established by the Government of
India.
(3)Must have satisfactorily
completed probation in any
Cadre in Government or
probation has not been declared
in the current post even after the
period of probation, due to
administrative delay but
against whom no major
penalty has been imposed or
proceedings for major penalty
or criminal proceedings is in
progress.
2) KAS Officer By Promotion (1)Must have satisfactorily
(Senior Time Scale) completed the probation in the
post of KAS (Junior Time Scale)
(2)Must have completed 8
years in the post of KAS
(Junior Time Scale)
(3)KAS Officer By Promotion Must have completed 6 years in
(Selection Grade the post KAS (Senior Time Scale)
Scale)
O.P(KAT) No. 506/2019 & batch : 16:
(4) KAS Officer By Promotion Must have completed 8 years
(Super Time Scale) in the post of KAS (Selection
Grade Scale)
Note: The recruitment to the KAS (Junior Time Scale) from the three streams shall be in the proportion of 1:1:1)
(b) One third of the posts in the KAS at the Junior Time Scale to which recruitment is made shall be set apart for each of the three streams, shown in Table above viz. By Direct Recruitment, By Transfer Recruitment (from all Government Departments), By Transfer Appointment from officers from Schedule I Departments and equivalent Common Categories in Table in Sub-Rule above.
(c) From among the candidates selected from the three categories against Category I (KAS-Junior Time Scale), the inter-se seniority shall be determined in the following manner:
(i) Every first, second and third positions in the seniority List of a batch selected for appointment in the KAS shall be in the order of merit from the candidates selected (1) by Direct Recruitment (Stream 1), (2) By Transfer Recruitment (Stream 2), (3) By Transfer Appointment from Schedule I Departments and Common Categories (Stream 3) respectively.
(ii) The above order of assignment from each of the three Streams above shall be followed for filling up the rest of the posts in KAS identified for recruitment.
(iii) The rank list in each of these three Streams shall be separately prepared.
(iv) Seniority in entry cadre shall be fixed as per Rule 27 (c) Part 2 of the Kerala Subordinate Service Rules.
(v) Any shortfall in the availability of candidates in any list shall be assigned to the candidates available in the other Streams in the same order indicated above (viz) Direct Recruitment (Stream 1), By Direct Recruitment (Stream 2) By Transfer Appointment - Schedule I Departments and Common Categories)"O.P(KAT) No. 506/2019 & batch : 17:
7. Therefore, it can be seen that in accordance with Rule 12 as it stood originally, Stream 1 is by direct recruitment from among the candidates who are qualified as per column No.3. Stream 2 is by-transfer Recruitment (from regular employees or approved probationers in any Government Departments) who are qualified as per column 3 in the table above. Stream 3 is by-transfer appointment from among candidates holding first Gazetted post or above in Departments in the Schedule 1 and equivalent posts in Common Categories listed in Schedule 1, who satisfies the qualifications as per column 3 in the table above. Therefore, it is evident that as per the notification dated 29.12.2017, community and caste reservation for appointment as per General Rules 14 to 17 of Part I1 of the Kerala State and Subordinate Services Rules, 1958 (KS&SSR) are provided to the candidates applying under stream 1 alone.
8. While so, as per the gazette notification dated 11.07.2019, G.O.(P) No. 4/2019/P&ARD was published as SRO 464/2019, by the State Government amending the Rules, 2018 issued as per G.O.(P) No. 12/2017/P&ARD dated 29.12.2017. As per Rule 2 of the Amendment Rules 2019 which came into force immediately, throughout the Rules 2018, except in sub-Rule (a) of Rule 4, Rule 11 and sub-Rule (c) of Rule 13 for the words "By transfer appointment" and "By transfer Recruitment" wherever they O.P(KAT) No. 506/2019 & batch : 18: occur, the words "By direct recruitment" shall be substituted. As per Rules 3 of the Amendment Rules, in Rule 5,- (i) the existing provision, shall be lettered as sub-Rule (a) of that Rule and in that sub-Rule for the words, letters, symbols and figure "appointment by direct recruitment to KAS envisaged in STREAM-I under Rule 12-- Method of appointment and qualification" the words and letters "the appointments to all Streams of KAS" shall be substituted; (ii) after sub-Rule (a) as so lettered, the following sub-rules shall be inserted, namely:-
"(b) The provisions regarding reservation of appointments for differently abled persons under the Rights of Persons with Disabilities Act, 2016 (Central Act 49 of 2016) shall apply to appointments by direct recruitment.
(c) The relaxation of age limit to eligible categories as provided in General Rules and Government Orders, shall be applicable to the appointments under KAS. The maximum age limit shall, in no case, exceed fifty years".
9. Likewise, as per Rule (4) of the Amendment Rules, in Rule 8, in sub-Rule (c), for the words "by transfer", the words "from STREAM 2 and STREAM 3" shall be substituted. As per clause (b) of Rule 7 of the Amendment Rules, in Rule 11, the words " by direct recruitment or by transfer" shall be omitted. As per Rule 8, in Rule 12, in the column against the entry "STREAM 1" under category (1), in the entries in item (1) of column (3), under the heading O.P(KAT) No. 506/2019 & batch : 19: "Qualifications‟, the words "Relaxation of upper age limit will be three years in the case of OBC and five years in the case of SC/ST." shall be omitted. Other amendments are also made. However, the above specified amendments are challenged by the petitioners contending that the reservation is confined to direct recruitment and Rules 14 to 17 of Part I of KS & SSR, which provide working out of reservation to backward classes and Scheduled Castes /Scheduled Tribes, apply only to direct recruitment and which will not apply to appointment by transfer/promotion.
10. It is further submitted that in the State of Kerala, no reservation is provided for appointment by transfer or promotion. Therefore, if reservation is made to streams 2 and 3, that would have wide ramifications for the reason that clamouring for reservation for all other posts under the State which are filled up by promotion or by-transfer appointment would arise. Thus, it is the submission that it will tantamount to the discrimination of employees, if post is filled up by promotion or by-transfer, which do not have reservation when pitted against the aspirants for streams 2 and 3. It is also the case of the petitioners that by-transfer appointment/promotion is reckoned as a condition of service and therefore, it falls within the realm of Article 16(1) of the Constitution of India under the phraseology 'in the matters relating to employment which conceive the concept of equality' and outside O.P(KAT) No. 506/2019 & batch : 20: the scope of Article 16(4). Therefore, according to the petitioners, as has been held by the Apex Court in Indira Sawhney v. Union of India[1], Article 16(4) makes a departure only to the extent it permits the State Government to make any provision for the reservation of appointments of post at the initial stage of appointment and not in the process of promotion. The sum and substance of the contention is that the reservation made to the recruitment by the State Government to the KAS ie recruitment by transfer and recruitment by promotion as originally stood in the Rules, 2018 as amended as per Amendment Rules, 2019 amounts to a constitutional uprising under Article 16(4-A) and in that circumstances, alone it was held by the Apex Court in Indira Sawhney that the State is justified in implementing reservation for promotion to the Scheduled Castes/Scheduled Tribes only on compelling reason of inadequacy of representation with quantifiable data, which position was reiterated, in Sooraj Ban Meena v. State of Rajasthan and others [(2011 (1) SCC 467] and again in B.K. Pavitra and others v. Union of India [(2017) 4 SCC 620]. Therefore, the paramount contention advanced by the petitioners is that implementation of reservation for streams 2 and 3 is against the concept of having meritorious middle level supervisory cadre.
11. Thus, it was contended that it was out of the paramount consideration to maintain efficiency and administration, reservation O.P(KAT) No. 506/2019 & batch : 21: was kept out of streams 2 and 3 as per Rules, 2018. That apart, it was submitted that the Advocate General of the State has provided necessary legal advice to the Chief Minister in that regard also. However, in total disregard to the advice given by the Advocate General, the State implemented reservation to the streams 2 and 3 for by-transfer appointment by amending Rule 5, and Rule 5(c) was inserted providing age relaxation for candidates for reservation as is contemplated under KS&SSR. Therefore, according to the petitioners, by insertion of Rule 5 (c), the age relaxation for reserved candidates for direct recruitment provided under Rule 10 of the KS&SSR would ipso facto apply to the reserved candidates aspiring for by-transfer appointment, which is also legally unsustainable.
12. The substantive and predominant contention put forth by the petitioners in that regard is that the connotation of by-transfer recruitment" of stream 2 and 'by-transfer appointment" of stream 3 substituted with "by direct recruitment" has got only cosmetic effect without affecting the edifice of by-transfer appointment. It is also submitted that the change in the nomenclature will not change the manner or method of appointment contemplated under streams 2 and 3, which is nothing but a 'by-transfer appointment'. These are the basic contentions raised by the petitioners before the Tribunal. Anyhow, the Tribunal upheld the amendment by dismissing original O.P(KAT) No. 506/2019 & batch : 22: applications on the ground that by changing the method of appointment to direct recruitment for streams 2 and 3, Rules 14 to 17 and Rule 10 of Part II KS&SSR would imperatively apply for streams 2 and 3. Therefore, according to the learned Tribunal, there is no constitutional impermissibility to apply reservation and age relaxation to streams 2 and 3 by changing the method of appointment to direct recruitment. It was further held that by changing the method of appointment to direct recruitment, there is no legal hurdle for having reservation and relaxation of qualification as applicable to direct recruitment in terms of KS&SSR. According to the Original Petitioners, the conclusion arrived at by the Tribunal that the three streams can be clubbed together by the uniform nature of selection is per se illegal and improper. The source of selection of stream 1 is from open market; whereas, the source of selection for streams 2 and 3 are specified and enumerated feeder categories in Government service and therefore, it was submitted that the order passed by the Tribunal is ex facie illegal, arbitrary, perverse and unreasonable, and thus, violative of Article 14 and 16(1) of the Constitution of India.
13. The learned Senior counsel has advanced arguments referring to Rules 2(12) and 2(13) of Part I KS&SSR which are definitions dealing with 'direct recruitment and recruitment by transfer'. According to the learned senior counsel, the essential O.P(KAT) No. 506/2019 & batch : 23: criteria for recruitment by transfer under Rules 2(13)(i) and (ii) is that, if his appointment to the service is in accordance with the orders issued or rules prescribed for recruitment by transfer to the service; and if at the time of his first appointment thereto- a) he is a full member or an approved probationer in any other service, the Rules for which prescribe a period of probation for members thereof, or under Rule 2(13)(ii)(b) he is the holder of a post in any State Service for which no probation has been prescribed, and has put in satisfactory service in that post for a period of two years on duty within a continuous period of three years. That apart, it was contended that streams 2 and 3 are defined under Rule 12 of Rules, 2018 and stream 2 pertains to the regular employees or approved probationers in any Government departments, which peremptory aspect squarely fit in Rule 2(13)(ii)(a) of the KS&SSR, and that stream 3 pertains to candidates holding first gazetted post or above in departments in the schedule 1 and equivalent post in common categories listed in schedule-1, which scrupulously conform to Rule 2(13)(ii)(b). The paramount contention advanced relying upon the said Rule is that there is no change to the descriptions of streams 2 and 3 under Rule 12 of the Rules, 2018, but only the heading to the descriptions of streams 2 and 3 have been amended to 'direct recruitment' as per amendment Rules 2019. Therefore, it is submitted that so long as the description of the streams 2 and 3 O.P(KAT) No. 506/2019 & batch : 24: stands as such under Rule 12 of Rules, 2018 in conformity with Rule 2 of Part I of KS&SSR, the method of appointment to streams 2 and 3 is only recruitment by transfer notwithstanding the uniform manner of selection. Other provisions of KS&SSR are also relied upon to buttress the contentions, which would be considered hereafter.
14. That apart, it was contended that the conduct of selection by the Kerala Public Service Commission and the inter se merit of in-service candidates is assessed through a competitive examination for all the three streams together and the seniority in the feeder category has no say in the matter of selection and it will not overturn the method of appointment from streams 2 and 3 to the entry cadre post of KAS, to direct recruitment. Therefore, it was submitted that the legal position is no more res integra, that reservation cannot be applied for appointment/recruitment by transfer, which is essentially promotion of Government servants by assessing their merit through a test conducted by the KPSC as laid down by the Apex Court in Indira Sawhney (supra) and heavily relied upon paragraph 822 of the said judgment. So also, it was contended that to tide over the situation concerning Scheduled Castes and Scheduled Tribes in the matter of promotion alone, Articles 16(4-A) and 16(4-B), subject to inadequate representation, were incorporated in the Constitution of India enabling the O.P(KAT) No. 506/2019 & batch : 25: Government to provide reservation for promotion and to protect their consequential seniority. According to the petitioners, the said legal position is concluded in terms of the judgment rendered by the Apex Court in M. Nagaraj and others v. Union of India and others (2006) 8 SCC 212] and finally reiterated in Jarnail Singh and others v. Lachmi Narain Gupta and others (2018) 10 SCC 396] . It was also the submission of the learned senior counsel that reservation cannot be implemented even for Scheduled castes/Scheduled Tribes at the threshold of the formation of the new service, due to the sole reason that inadequacy of representation cannot be gauged at the inception of service. Hence, it was contended that Rules 3(1) and 3(2)(c) of Amendment Rules, 2019 are violative of Article 16(4-A) of the Constitution of India. It was further pointed out that the Kerala Administrative Tribunal has not considered the questions raised by the petitioners taking into account the provisions of the Constitution of India and KS&SSR. In the above backdrop, the petitioners seek to set aside the order passed by the KAT in the aforesaid proceedings and to set aside Rules 2(1), 3(i), and 3(ii)(c) of the Amendment Rules, 2019 brought into force as per the Gazette notification of the State Government dated 11.07.2019. The petitioners also seek to quash Ext. P4 notification issued by the Kerala Public Service Commission inviting application to streams 1 O.P(KAT) No. 506/2019 & batch : 26: to 3 of Rules, 2018.
15. The learned senior Government Pleader made his submissions basically relying upon the reply filed before the Kerala Administrative Tribunal, that persistent demands from various organisations for reconsideration of the decision of the Government to make reservation applicable only to stream 1 in the selection to KAS were made, and it was pointed out that exclusion of reservation against streams 2 and 3, which will constitute 2/3 of the cadre strength of KAS, will result in practically no representation for SC/ST in the service. It was also submitted that yet another reason for advancing the demand for reservation in streams 2 and 3 was that KAS will form the feeder category of Indian Administrative Service (IAS). That apart, the Kerala State Scheduled Castes and Scheduled Tribes Commission had issued order dated 05.07.2018 with elaborate reasons directing the Government to make reservation applicable to streams 2 and 3 of KAS and ensure social justice to the oppressed communities, evident from Annexure R1(a). So also, the Kerala State Minority Commission had also issued Annexure R1(b) order recommending the Government for providing reservation in streams 2 and 3. The Government has, therefore, examined the matter from all angles, including efficiency in service and the objectives of constituting the KAS and thought it fit to introduce necessary amendments in the Rules, 2018, which O.P(KAT) No. 506/2019 & batch : 27: provided reservation only in the case of stream 1, with a view to implement the mandate of social justice enshrined in the Constitution without violating the law declared by the Apex Court, based on which legal opinion was received from the learned Advocate General on 15.03.2018. Other contentions are also raised taking into account Article 16 of the Constitution of India and the relevant provisions of the KS&SSR.
16. Other party respondents in the Original applications have also submitted counter affidavits supporting the stand adopted by the State Government. The kerala Administrative Tribunal have considered the questions raised by the petitioners taking into account the constitutional mandates as well as the judgments rendered by the Apex Court as stated supra, however, dismissed the original applications holding that the manner of appointments made for streams 1 to 3 of Rules, 2018 as amended by the Amendment Rules, 2019 providing direct recruitment for open category candidates as well as in-service candidates is not hit by Article 14 of the Constitution of India and therefore, the irresistible conclusion is that the provision for reservation, and making applicable Rules 14 to 17 of the KS&SSR are not ultra vires of Articles 14, 16(1), 16(4) and 16(4-A) of the Constitution of India. It thus means, the challenge made to the Amendment Rules, 2019 by the original petitioners failed absolutely.
O.P(KAT) No. 506/2019 & batch : 28:
17. Now, we come to the Public Interest writ petitions filed by Samastha Nair Samajam, apparently a society formed with the members of a forward community, challenging the Rules, 2018 and Amendment Rules 2019 in regard to the reservation policy of the Government as such, and they also seek to issue a writ of certiorari declaring that the reservation policy adopted by the State of Kerala for the appointments to the post of KAS is unconstitutional. Therein also, the basic contentions are raised relying upon Article 16(4) of the Constitution of India and it was submitted that before making any provision for reservation, the State has to form an opinion that backward classes are not adequately represented in the post to which the reservation is proposed. The said petitioner also relies upon the proposition of law laid down by the Apex Court in the aforesaid judgments. To a primary question posed by this Court, as to whether in service matters, a Public Interest writ petition is maintainable in law, learned counsel submitted that it is in the larger interest of a forward community that is being affected consequent to the Amendment Rules, 2019, the writ petitions are filed, and therefore, the petitioner is an aggrieved person. However, the learned Senior Government Pleader appearing for the respondents, relying upon the submissions made in the counter affidavit filed by the State, has submitted that the subject issue raised in the writ petitions are O.P(KAT) No. 506/2019 & batch : 29: absolutely a service matter and it is very well settled that no Public Interest writ petition can be maintained. It was also submitted that since the petitioner in the writ petitions is a society, it can never be said to be an aggrieved person. Both sides have also relied upon various judgments of the Apex Court and this court in that regard.
18. We have heard learned senior counsel for the petitioners in the original petition, Sri. S. Sreekumar assisted by Adv. R.T. Pradeep, and Sri. Prem Chand R. Nair, Sri. R. Sunil Kumar for the writ petitioners and learned Senior Government Pleader, Sri. Antony Mukkath and Sri. P.C Sasidharan for the KPSC, and perused the pleadings and the materials on record and two argument notes submitted by the counsel in the Public Interst Litigation.
19. Respective counsel have addressed their arguments on the basis of the submissions recorded above. The paramount contention advanced by the learned Senior counsel, Sri. S. Sreekumar, is relying upon Rule 2(11) dealing with promotion which is defined to mean 'the appointment of a member of any category or grade of a service or a class of service to a higher category or grade of such service or class' and it is submitted that so far as the candidates under streams 2 and 3 are members of a service, whatever be the nomenclature given under the Amendment Rules, 2019 in the matter of recruitment of in-service candidates, it is nothing but a promotion in terms of the said provision. Learned O.P(KAT) No. 506/2019 & batch : 30: counsel has also relied upon sub-Rule (12) thereto dealing with "recruited direct", specifies that a candidate is said to be recruited direct to a service, class, category or post when, in case the appointment has to be done in consultation with the commission, on the date of the notification by the Commission inviting applications for the recruitment and in any other case at the time of appointment. Clauses (i) to (iii) of Rule 2(12)read thus:
(i) he is not in the service of the Government of India or the Government of a State; or
(ii) being in the service of the Government of India or the Government of a State, he satisfies all the qualifications (including age) and other conditions prescribed for such recruitment to that service, class, category or post and is permitted to apply for such recruitment by the competent authority; or
(iii) he holds a post, the conditions of service of the holder of which have been declared to be matters not suitable for regulation by rule.
20. Learned senior counsel had also relied upon Sub-Rule 13(i) dealing with "recruited by transfer", which states that a candidate is said to be "recruited by transfer" to a service, if his appointment to the service is in accordance with the orders issued or rules prescribed for recruitment by transfer to the service.
21. Relying upon the said provisions, it was contended that the upper age limit prescribed in the Special Rules, 2018 as O.P(KAT) No. 506/2019 & batch : 31: amended by amendment Rules, 2019 as 5 years in the case of candidates belonging to Scheduled Castes and 3 years in the case of candidates belonging to other backward classes and making reservations for the members of the Scheduled castes/Scheduled Tribes being a promotion, is totally illegal and violative of Articles 16(4) and 16 (4A) of the Constitution of India. On the other hand, as we have pointed out above, the stand of the Government was that the amendments made to Rules, 2018 by the Amendment Rules, 2019 provide the method of appointment as direct recruitment in all the streams and being a direct recruitment the rules of reservation will apply. That apart, it was submitted that Rule 2(12)(ii) of Part I of KS&SSR clearly specifies that a direct recruitment takes in the employees of the Government of India or the Government of a State, if he satisfies all the qualifications, including the age and other conditions prescribed for such recruitment to that service, class, category or post and is permitted to apply for such recruitment by the competent authority.
22. That apart, our attention was invited to Rule 2 of Part II of KS&SSR, which deals with the Special Rules which stipulates that if any provision in the general Rules contained in the Part is repugnant to a provision in the Special Rules applicable to any particular service contained in Part III, the latter shall, in respect of that service, prevail over the provision in the General Rules in this O.P(KAT) No. 506/2019 & batch : 32: part. So also, our attention was invited to Rule 14 of Part II KS&SSR, which deals with reservation of appointments, which specifies that where the Special Rules laid down that the principle of reservation of appointments shall apply to any service, class or category, or where in the case of any service, class or category for which no Special Rules have been issued, the Government have, by notification in the gazette, declared that the principle of reservation of appointments shall apply to such service, class or category, appointments by direct recruitment to such service, class or category shall be made in accordance with the prescriptions contained thereunder. So also, our attention was drawn to Rule 17A of Part II KS&SSR dealing with 'special recruitment from among the Scheduled Castes or Scheduled Tribes', which states that notwithstanding anything contained in these Rules or in the Special Rules, the State Government may reserve a specified number of posts in any service, class, category or grade to be filled by direct recruitment exclusively from among the members of Scheduled Castes and Scheduled Tribes.
23. In the process of hearing and formulating our views, we also realise that Rule 28(b)(i) only deals with 'promotion and appointment by transfer according to merit and ability', which takes in appointments to posts in a selection category or grade in a service or class other than Heads of Department, which shall be O.P(KAT) No. 506/2019 & batch : 33: made under Rule 28A from a select list from among the members of eligible for appointment to such category in accordance with the Rules, and the Special Rules on the basis of merit and ability, seniority being considered only when merit and ability are approximately equal. So also, Rule 28(a) of Part II KS&SSR deals only with 'promotion' and the contention advanced by the learned Government Pleader was that those rules have nothing to do with the direct recruitment method incorporated in the Rules, 2018 as also amended by the Amendment Rules, 2019. Same is the situation with Rule 28(b)(ii) of Part II of KS&SSR, dealing with 'promotion and appointment by transfer to higher posts according to seniority'. Therefore, the sum and substance of the contentions advanced based on the relevant provisions of KS&SSR we are of the considered opinion that the arguments put forth by the learned counsel for the petitioners that even though the nomenclature is changed as per the Amendment Rules, 2019 to direct recruitment, the streams 2 and 3 have the characteristics of promotion and therefore recruitment by transfer/appointment, cannot be sustained under law, since Rule 2(12(ii) clearly takes in a situation of a direct recruitment from among the service of the Government of India or the Government of a State, if a candidate satisfies all the qualifications or other conditions prescribed for such recruitment to that service. Thinking so, there is every power vested with the O.P(KAT) No. 506/2019 & batch : 34: State Government to constitute Special Rules so as to make appointments to a class of service and provide reservation as is provided under the Rules discussed above, especially Rule 10(c) dealing with 'age relaxation' and Rules 14 to 17 dealing with 'reservation of appointments' and its consequences .
24. The provisions pointed out by the learned senior counsel for the petitioners dealing with promotion, recruitment by transfer etc as contained under Part I and II of KS&SSR discussed above are only dealing with the manner in which the promotions are to be made from the category in which a person was appointed. Here is a case where the State Government, apart from making an opportunity to the open category to apply to the posts under the KAS Rules, provides opportunity to the employees under its services to participate in a competitive procedure to form a service or class by itself. To put it otherwise, in order to constitute a class of service, different sources are made by the Government, thus giving an opportunity to the qualified persons in the service also to compete and to attain a position in any of the services under the Rules, 2018 as amended by the Amendment Rules, 2019, that's all, and that can, under no circumstances, be termed promotion so as to non-suit eligible persons entitled for reservation in contemplation of the relevant provisions of the Constitution of India and the laws. Therefore, the contention advanced by the O.P(KAT) No. 506/2019 & batch : 35: petitioners that the proposed recruitment from service can only be treated as a promotion is not a correct proposition of law put forth. The contention that the amendment made as per the Amendment Rules, 2019 is only an amendment of the marginal notes of Rules, 2018, cannot be sustained for the reason that the process of recruitment itself was altered by the Government so as to ensure the objects of the Government sought to be achieved and incidentally as mandated under the Constitution, protection is provided to the members of the SC/ST and backward classes. Therefore, the attempt of the Government by that process was not to change the marginal note or the nomenclature used as predominantly contended by the petitioners. This we say because, Article 16(1) of the Constitution of India, though dealing with equality of opportunity in the matters of public employment or appointment to any office, under the State, clause (4) of Article 16 endows the State with the power for making any provision for the reservation of appointments or posts in favour of any backward class citizens, which, in the opinion of the State, is not adequately represented in the services under the State.
25. That apart, Article 335 of the Constitution of India specifies that the claims of the members of the Scheduled Castes/Scheduled Tribes shall be taken into consideration consistently with the maintenance of efficiency of administration, in O.P(KAT) No. 506/2019 & batch : 36: the making of appointments to services and the posts in connection with the affairs of the Union or of a State. That said, as per 82 nd Amendment Act, 2000, a proviso was added to Article 335 on and with effect from 08.09.2000, which provides that nothing in the Article shall prevent in making of any provision in favour of the members of the Scheduled Castes/Scheduled Tribes for relaxation in the qualifying marks in any examination or lowering the standards of evaluation, for reservation in matters of promotion to any class or classes of service or posts in connection with the affairs of the Union or of a State. Therefore, relying upon Article 16(4-A) of the Constitution of India, it was submitted by the petitioners that reservation can be provided in the matters of promotion with consequential seniority to any class or classes of posts in the services under the State in favour of Scheduled Castes/Scheduled Tribes, which in the opinion of the State, are not adequately represented in the services under the State. The sum and substance of the contention advanced by the petitioners in that background was that the recruitment to streams 2 and 3 being in the nature of promotion, the State will have to first ascertain by making appropriate enquiry/study as to whether the members of SC/ST are not adequately represented and having not undertaken any such exercise, the reservation made and the relaxation given to the age limit as per Amendment Rules, 2019 cannot be legally O.P(KAT) No. 506/2019 & batch : 37: sustained.
26. Taking stock of the rival submissions, we are of the view that when the State has made reservation to Scheduled Castes and Scheduled Tribes and the backward community, we could only legally presume that the State was having sufficient data to satisfy itself that such class would not be represented adequately in the concerned service, if the reservation was not provided. Therefore, it was the duty and the responsibility of the petitioners to prove otherwise, since it is a presumption available in favour of the Government as per Section 114 (e) of the Indian Evidence Act, that there has been a transgression of the constitutional provisions and the principles of law. When the relevant aspects and the issues raised are so understood, the petitioners are not entitled to interpret the law so as to presume or suppose that, the appointment made by direct recruitment is a promotion when the State intended the service under the Rules as a class by itself and the appointments made are to an entry cadre, thus enabling reservation in accordance with law. It is also to be understood that the provisions of the Rules as amended is a reality as opposed to illusion in order to contain the arguments of the petitioners, which is a well settled proposition in law. Which thus means, the action of the State was very conscious and deliberate to form an efficient service force to protect its policies and affairs to the bestest O.P(KAT) No. 506/2019 & batch : 38: advantage of the people at large. It is also well settled that it is for the Government to decide its policy in the matter of making a rule for any special recruitment, and to sustain its objectives, it may decide to incorporate any rule, but it would be subject to the test of constitutionality and that alone. To put it otherwise, a writ court considering constitutionality shall initially presume that the rule is valid and in the process of adjudication, the court has to bear in mind the reality leading to the making of rules, the common course of events, the objectives of the legislation, the good intentions, the framework of the constitution as to the manner in which the process of selection has to be made, the reservation to be made and the prescriptions already existing in any statute or rules. Thinking so, we are of the view that the petitioners are not prejudiced in any manner or treated differently from others similarly situated, other than submitting that the scope of the open category candidates to secure employment in the KAS is reduced due to the reservation made, which, according to us, is not at all an argument when the constitution of India has made appropriate provisions to deal with such significant aspects taking into account the reasonable classification to be made to protect the interest of the members of the Scheduled Castes and Scheduled Tribes and other backward communities. That said, we also do not think that the candidates appearing for the competitive examination are not at all aggrieved O.P(KAT) No. 506/2019 & batch : 39: persons in the real sense, since the aggrieved persons can only be identified after the entire selection process is complete and the successful candidates are shortlisted in accordance with the Rules. We are fortified by a plethora of decisions of the Apex Court in relation to the interference of a writ court in Legislations made by a State.
27. In State of West Bengal and others v. E.I.T.A. India Ltd., and others [(2003) 5 SCC 239], it was held by the Apex Court that no legislation can be declared to be illegal, much less unconstitutional on the ground of being unreasonable or harsh on the anvil of Article 14 of the Constitution except, of course, when it fails to clear the test of arbitrariness and discrimination which would render it violative of Article 14 of the Constitution.
28. In Arun Kumar and others v. Union of India (UOI) and others [(2007) 1 SCC 732], it was held by the Apex Court at paragraph 56 as follows:
"56. As observed by this Court in CST v. Radhakrishan [(1979) 2 SCC 249: 1979 SCC (Tax) 108] in considering the validity of a statute the presumption is always in favour of constitutionality and the burden is upon the person who attacks it to show that there has been transgression of constitutional principles. For sustaining the constitutionality of an Act, a court may take into consideration matters of common knowledge, reports, preamble, history of the times, object of the legislation and all other facts which are O.P(KAT) No. 506/2019 & batch : 40: relevant. It must always be presumed that the legislature understands and correctly appreciates the need of its own people and that discrimination, if any, is based on adequate grounds and considerations. It is also well settled that the courts will be justified in giving a liberal interpretation in order to avoid constitutional invalidity. A provision conferring very wide and expansive powers on authority can be construed in conformity with legislative intent of exercise of power within constitutional limitations. Where a statute is silent or is inarticulate, the court would attempt to transmutate the inarticulate and adopt a construction which would lean towards constitutionality albeit without departing from the material of which the law is woven. These principles have given rise to rule of "reading down" the provisions if it becomes necessary to uphold the validity of the law."
29. In Government of Andhra Pradesh and others v. P. Laxmi Devi [(2008) 4 SCC 720], the Apex Court held thus:
"A. Do courts have the power to declare an Act of the legislature to be invalid?
32. The answer to the above question is: Yes. The theoretical reasoning for this view can be derived from the theory in jurisprudence of the eminent jurist Kelsen (The Pure Theory of Law).
B. How and when should the power of the court to declare the statute unconstitutional be exercised?
37. Since, according to the above reasoning, the power in the courts to declare a statute unconstitutional has to be accepted, the question O.P(KAT) No. 506/2019 & batch : 41: which then arises is how and when should such power be exercised.
38. This is a very important question because invalidating an Act of the legislature is a grave step and should never be lightly taken. As observed by the American Jurist Alexander Bickel "judicial review is a counter-majoritarian force in our system, since when the Supreme Court declares unconstitutional a legislative Act or the Act of an elected executive, it thus thwarts the will of the representatives of the people; it exercises control, not on behalf of the prevailing majority, but against it." (See A. Bickel's The Least Dangerous Branch.)
39. The court is, therefore, faced with a grave problem. On the one hand, it is well settled since Marbury v. Madison [(1978) 1 SCC 248 : AIR 1978 SC 597] that the Constitution is the fundamental law of the land and must prevail over the ordinary statute in case of conflict, on the other hand the court must not seek an unnecessary confrontation with the legislature, particularly since the legislature consists of representatives democratically elected by the people.
40. The court must always remember that invalidating a statute is a grave step, and must therefore be taken in very rare and exceptional circumstances.
41. We have observed above that while the court has power to declare a statute to be unconstitutional, it should exercise great judicial restraint in this connection. This requires clarification, since, sometimes courts are perplexed as to whether they should declare a statute to be constitutional or unconstitutional.
30. In contradistinction, the learned Senior counsel has O.P(KAT) No. 506/2019 & batch : 42: invited our attention to Indira Sawhney (supra) and particularly to paragraph 822, wherein it was held that the reservation in the case of promotion is normally made only where the promotion is by selection i.e., on the basis of merit, and that if the promotion is on the basis of seniority, such a Rule may not be called for. And in such a case, the position obtained in the lower category will reflect in the higher category (promotion category) also. However, it was stated that if the promotion is based on merit, it may happen that members of backward classes may not get selected in the same proportion as is obtained in the lower category. But, it is significant to note that while holding so, it was held that with a view to ensure similar representation in the higher category also, reservation is thought of even in the matter of promotion based on selection, which is, of course, in addition to the provision for reservation at the entry (direct recruitment). Therefore, the question considered there was whether Article 16(4) contemplates and permits reservation only in the matter of direct recruitment or whether it also warrants provision being made for reservation in the matter of promotions as well. Therefore, one thing is clear that a reservation at the entry i.e., direct recruitment level was very well protected in India Sawhney (supra). It was following the judgment in Indira Sawhney alone, M. Nagaraj as well as Jarnail Sing supra were rendered by the Apex Court.
O.P(KAT) No. 506/2019 & batch : 43:
31. So also, learned Senior counsel has brought our attention to the judgment of the Apex Court in Suraj Bhan Meena and another v. State of Rajasthan and others [(2011) 1 SCC 467], wherein the earlier judgments rendered by the Apex Court with regard to Article 16(4-A) were taken into account and it was held as follows at paragraphs 63 to 65 .
"63. It was further held that the impugned Constitution Amendments, introducing Articles 16(4-A) and 16(4-B), had been inserted and flow from Article 16(4), but they do not alter the structure of Article 16(4) of the Constitution. They do not wipe out any of the constitutional requirements such as ceiling limit and the concept of creamy layer on one hand and Scheduled Castes and Scheduled Tribes on the other hand, as was held in Indra Sawhney case [1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385] .
64. Ultimately, after the entire exercise, the Constitution Bench held that the State is not bound to make reservation for Scheduled Caste and Scheduled Tribe candidates in matters of promotion but if it wished, it could collect quantifiable data touching backwardness of the applicants and inadequacy of representation of that class in public employment for the purpose of compliance with Article 335 of the Constitution.
65. In effect, what has been decided in M. Nagaraj case [(2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] is part recognition of the views expressed in Virpal Singh Chauhan case [(1995) 6 SCC 684 : 1996 SCC (L&S) 1 : (1995) 31 ATC 813] , but at the same time O.P(KAT) No. 506/2019 & batch : 44: upholding the validity of the Seventy-seventh, Eighty-first, Eighty-second and Eighty-fifth Amendments on the ground that the concepts of "catch-up" rule and "consequential seniority" are judicially evolved concepts and could not be elevated to the status of a constitutional principle so as to place them beyond the amending power of Parliament. Accordingly, while upholding the validity of the said amendments, the Constitution Bench added that, in any event, the requirement of Articles 16(4-A) and 16(4-B) would have to be maintained and that in order to provide for reservation, if at all, the tests indicated in Articles 16(4-A) and 16(4-B) would have to be satisfied, which could only be achieved after an inquiry as to identity."
32. In our considered opinion, the recruitment made to streams 2 and 3 as per Rules, 2018 as amended by Amendment Rules, 2019 is a direct recruitment and is not having any characteristics of a promotion, firstly for the reason that all the qualified candidates in the service are applying to a post and are to participate in a preliminary and final competitive examination and to come out successful and if in that process one fails to achieve that target, he has to continue in the service held by him, and secondly, no manner of prejudice is caused to anyone belonging to SC/ST or any backward or any forward community, since when a person uprooted himself from a service and recruited in a different service, one post in the service held by him becomes vacant, which could be occupied by another person of the same caste or community. That O.P(KAT) No. 506/2019 & batch : 45: apart, since it is a recruitment made afresh from different sources of candidates directly by conducting competitive examinations, it is a direct recruitment guided by the constitutional protection contained under Article 16(4)of the Constitution of India. Which thus means, the recruitment of the candidates to the service, on being successful in the competitive examination from streams 2 and 3 is an entry point direct recruitment, which is entitled for reservation in contemplation of Article 16(4) of the Constitution of India, which, according to us, is not watered down in any of the decisions of the Apex Court referred to supra, even though faint attempts are made to establish so.
33. In that regard, the learned Government Pleader has invited our attention to the judgment of the Apex Court in Y. Najithamol and others v. Soumya S.D and others [(2016) 9 SCC 352, where the question considered was whether the recruitment of extra-departmental agents in the Postal Department to the cadre of postman through Departmental examination was direct recruitment or by promotion, and it was held that promotion to the post can only happen when promotional post and the post being promoted from are part of same service or class of service and finally it was held as follows at paragraphs 15 and 20 to 22.
"15. Promotion to a post, thus, can only happen when the promotional post and the post being promoted from are a part of O.P(KAT) No. 506/2019 & batch : 46: the same class of service. Gramin Dak Sevak is a civil post, but is not a part of the regular service of the Postal Department. In Union of India v. Kameshwar Prasad [Union of India v. Kameshwar Prasad, (1997) 11 SCC 650 : 1998 SCC (L&S) 447] this Court held as under: (SCC p. 652, para 2) "2. The extra-departmental agents system in the Department of Posts and Telegraphs is in vogue since 1854. The object underlying it is to cater to postal needs of the rural communities dispersed in remote areas. The system avails of the services of schoolmasters, shopkeepers, landlords and such other persons in a village who have the faculty of reasonable standard of literacy and adequate means of livelihood and who, therefore, in their leisure can assist the Department by way of gainful avocation and social service in ministering to the rural communities in their postal needs, through maintenance of simple accounts and adherence to minimum procedural formalities, as prescribed by the Department for the purpose. [See Swamy's Compilation of Service Rules for Extra-Departmental Staff in Postal Department, p. 1.]"
20. The Division Bench of the High Court placed reliance on the wording of Column 11(1) to conclude that since the extra- departmental agents being appointed as provided under Column 11(1) can be called as promotees, then the extra-departmental agents under Columns 11(2)(i) and (ii) also must be treated on a par. The said reasoning of the High Court also cannot be sustained. It is nobody's case that the extra-departmental agents being appointed under Column 11(1) be called promotees. The language of Column 11(1) itself makes this crystal clear. The use of the words "failing which" makes it obvious that there is a O.P(KAT) No. 506/2019 & batch : 47: distinction between those candidates who are being selected by way of promotion, and the candidates who are extra-departmental agents and have cleared the departmental examination, and that the latter will be considered for appointment only if there are no eligible candidates under the former category. Thus, the appointment of GDS to the post of Postman can only be said to be by way of direct recruitment and not promotion.
21. Further regard may be had to the Notification dated 11-8-2009 issued by the Office of the Postmaster General, Department of Posts, notifying the examination for recruitment to the cadre of Postman/Mail Guard. Under the Head of "Eligibility", it states as under:
"(i) Group D-- ***
(ii) GDS--For GDS, the upper age-limit shall be 50 years with 5 years relaxation for SC/ST candidates and 3 years relaxation for OBC candidates as on 1-7-2008 and he/she should have completed a minimum of 5 years regular satisfactory services as on 1-1-2008. There is no restriction on number of GDS to be permitted to take the examination under the 25% merit quota. All eligible GDS will be allowed to appear in the examination.
Note (i).--Reservation will be provided for OBCs in recruitment of GDS as Postman as is being done in the case of SCs/STs." The said notification also makes it evident that reservations for candidates belonging to the OBC category were very much in contemplation at the time the departmental examination was conducted. Even if a mere reading of Columns 11(1) and 11(2)(i) and (ii) of the Recruitment Rules as well as the Notification issued while notifying the departmental examination is not enough, the O.P(KAT) No. 506/2019 & batch : 48: subsequent legislative developments leave no scope for doubt as to the legislative intent.
22. The relevant Column of the Department of Posts (Postman and Mail Guard) Recruitment Rules, 2010, reads as under:
"11. (a)-(b) ***
(c) 25% by recruitment on the basis of competitive examination limited to Gramin Dak Sevaks [ Gramin Dak Sevaks are holders of civil posts but they are outside the regular civil service due to which their appointment will be by direct recruitment.] of the recruiting division who have worked for at least five years in that capacity as on the 1st day of January of the year to which the vacancy(ies) belong failing which by direct recruitment;"
Even though the said Rules are not meant to apply retrospectively, and neither are we suggesting that they do, this makes the position of the Gramin Dak Sevaks crystal clear. Their appointment as Postman is only by way of direct recruitment and not by way of promotion."
34. So also, the judgment of the Apex Court in P.U Joshi and others v. Accountant General, Ahmedabad and others [(2003) 2 SCC 632] was pressed into service by the learned Government Pleader to contend and canvass the proposition that the Rules, 2018 and the Amendment Rules, 2019 are matters of policy of the State Government depending upon the administrative exigencies and are exclusively within the jurisdiction of the Government, which could neither be challenged. Paragraph 10 of O.P(KAT) No. 506/2019 & batch : 49: the said judgment is relevant to the context, which reads thus:
"10. We have carefully considered the submissions made on behalf of both parties. Questions relating to the constitution, pattern, nomenclature of posts, cadres, categories, their creation/abolition, prescription of qualifications and other conditions of service including avenues of promotions and criteria to be fulfilled for such promotions pertain to the field of policy is within the exclusive discretion and jurisdiction of the State, subject, of course, to the limitations or restrictions envisaged in the Constitution of India and it is not for the statutory tribunals, at any rate, to direct the Government to have a particular method of recruitment or eligibility criteria or avenues of promotion or impose itself by substituting its views for that of the State. Similarly, it is well open and within the competency of the State to change the rules relating to a service and alter or amend and vary by addition/subtraction the qualifications, eligibility criteria and other conditions of service including avenues of promotion, from time to time, as the administrative exigencies may need or necessitate. Likewise, the State by appropriate rules is entitled to amalgamate departments or bifurcate departments into more and constitute different categories of posts or cadres by undertaking further classification, bifurcation or amalgamation as well as reconstitute and restructure the pattern and cadres/categories of service, as may be required from time to time by abolishing the existing cadres/posts and creating new cadres/posts. There is no right in any employee of the State to claim that rules governing conditions of his O.P(KAT) No. 506/2019 & batch : 50: service should be forever the same as the one when he entered service for all purposes and except for ensuring or safeguarding rights or benefits already earned, acquired or accrued at a particular point of time, a government servant has no right to challenge the authority of the State to amend, alter and bring into force new rules relating to even an existing service."
35. In that regard, learned senior Government Pleader has also invited our attention to an unreported judgment of a Division Bench of this Court in O.P(KAT) No. 12 of 2015 dated 04.11.2019, wherein it was held as follows at paragraphs 3 and 4:
"3. We further notice the contention raised by both sides on the aspect of reservation. Reliance is placed by the learned Government Pleader and the learned counsel appearing for the respondents on Rule 14 of Part II. Rule 14 has the nominal heading 'reservation of appointments'. It indicates that where Special Rules lay down the principle of reservation it shall apply to any service, class or category and where in the case of any service, class or category, there are no Special Rules, the Government may, by notification in the Gazette, declare that the principle of reservation of appointments apply to such service, class or category; the appointments specified as being by direct recruitment.
4. In the present case the appointments were to be made by direct recruitment from the candidates 'in-service' for whom 10% was set apart. In the Special Rules, Rule 7 provides for a reservation. The learned counsel for the petitioners would take us to the O.P(KAT) No. 506/2019 & batch : 51: definition of 'direct recruitment' in Rule 2(12) of the KS & SSR, 1958 to draw a distinction in the case of the instant appointments of 'in-service' candidates. By clause (i), any person in the service of the Government of India or Government of a State is excluded from the definition is the contention. However, we notice clause
(ii) which enables the recruitment of a person in the service of the Government of India or the Government of a State to be deemed a direct recruitment if the candidate satisfies all the qualifications and other conditions prescribed for such recruitment to that service and is permitted to apply for such recruitment by the competent authority. Here the Special Rules specifically provide for a quota to the insiders to be appointed on direct recruitment.
The Special Rules also provide for the reservation to be followed in the case of such recruitment.
In the circumstances, we do not find any reason to interfere with the order of the Tribunal. The original petition is therefore dismissed upholding the order of the Tribunal, also on the additional ground stated by us."
36. So also, judgment in O.P(KAT) No. 239 of 2019 dated 16.11.2019 was brought to our notice, which considered the question as to whether the General Rule in the KS&SSR for consideration of merit and suitability for promotion would survive in the context of Section 101(6) of the Kerala Police Act, 2011; only insofar as the penalties in items (a) to (j) of Section 101(4) of Act, 2011 and it was held as follows at paragraphs 19:
"19. In the present case, we are dealing with quite a contrary O.P(KAT) No. 506/2019 & batch : 52: circumstance, in which event, Rule 2 of the KS&SSR applies. Rule 2 of the KS&SSR is as under:
"2. Relation to the Special Rules.- If any provision in the General Rules contained in the part is repugnant to a provision in the Special Rules applicable to any particular service contained in Part III, the latter shall in respect of that service, prevail over the provision in the General Rules in this Part".
Here, the situation is not of a Special Rules framed subsequently to the General Rules, it is an enactment inter alia regulating the service of the police personnel, viz., the Kerala Police Act, 2011. The power to regulate the service conditions, as we noticed, has to be sourced to Article 309 of the Constitution. The Legislature having enacted such provisions, it overrides the provisions in the KS&SSR. The principle applicable here is : generaliabus specialia derogant (i.e., special things derogate from general things) and not generalia specialibus non derogant, which later principle was applied in S.Prakash and Prasad Kurien."
Therefore, considering the above aspects, we have no hesitation to say that the Special Rules framed is not violative of any of the provisions of the KS&SSR. But, on the other hand, the enabling provisions of Part II KS&SSR dealing with special Rules and the reservations provided thereto to backward classes and communities, would apply to the facts and circumstances of the instant Original Petitions.
37. That apart, we find force in the contention advanced by the learned Senior Government Pleader that the Rules, 2018 and the Amendment Rules, 2019 are introduced by the State Government by invoking the powers conferred under Article 309 of the Constitution of India and thereby, the Government is vested O.P(KAT) No. 506/2019 & batch : 53: with powers subject to the provisions of the Constitution to regulate the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the state. In our view, it is clear that it is by virtue of the powers conferred under Article 309 that Rules, 2018 and the Amendment Rules, 2019 are made by the Government prescribing conditions of service in the matter of recruitment to the post created thereunder. The Rules are made by the Government by virtue of the powers conferred under the Act, 1968. Therefore, we are unable to agree with the contentions put forth by the counsel for the petitioners and are also of the opinion that the method of recruitment, qualifications, both educational as well as technical, for appointment or conditions of service and reserving posts and providing age relaxation are in terms of Article 309 of the Constitution of India read along with the other provisions discussed above. That apart, the petitioners are not having any case that the Amendment Rules, 2019 are made to protect the vested interest of any person or tailor-made to suit the convenience of any particular person or class of persons. But, in our view, it was done to protect the interest of the State as is said above and in that process the interest of a class of persons, who are protected under Article 16(4) of the Constitution of India is taken care of by virtue of the imperative requirement of the Constitution of India. Therefore, once it is found that the recruitment made is a O.P(KAT) No. 506/2019 & batch : 54: direct recruitment to the entry cadre, as of right, the eligible candidates are entitled to get protection in terms of Article 16(4) on the basis of the data available with the State Government. This distinction was also drawn by the Apex Court in the case of Indira Sawhney, M. Nagaraj, Jarnail Singh etc. Therefore, once it is found that the action of the State amending the Rules was in accordance with the law, then this court need apply only the direct impact theory evolved by the Apex Court in R.C Cooper v. Union of India [(1970) 1 SCC 248] and followed in Bennet Coleman v. Union of India [(1972) 2 SCC 788], whereby it was held that in such circumstances the court need only look into the question of infringement of the fundamental rights, and the true test was the direct effect of the impugned State action on a particular fundamental right and the word 'direct' goes to the quality or character of the effect and not to the subject matter. Later, in Maneka Gandhi v. Union of India [(1978) 1 SCC 248], the Apex Court held that what the court must consider is the direct and inevitable consequence of the State action and further held that if the test were merely of direct or indirect effect, it would be an open ended concept and the criterion of inevitable consequence of effect helps to quantify the extent of directness of effect necessary to constitute infringement of a fundamental right. And that if the effect of State action on a fundamental right is direct and inevitable, O.P(KAT) No. 506/2019 & batch : 55: then fortiori, it must be presumed to have been intended by the authority taking the action and hence, this doctrine of direct and inevitable effect, has also been described as the doctrine of intended or real effect.
38. The next question that comes up for our consideration is whether the Public Interest writ petitions filed challenging the Rules, 2018 and the Amendment Rules, 2019 in the very same background are maintainable at all, since the issue involved is a pure and simple service matter. Learned counsel for the petitioner society submitted that the judgment of the Apex Court in Indira Sawhney and M. Nagaraj were all public interest litigations filed under Article 32 of the Constitution and therefore, the petitioner society cannot be non-suited on the ground that the Public Interest Litigation is not maintainable in a service matter. However, we are of the considered opinion that Indira Sawheny and M. Nagaraj were individuals who would have been affected by the reservation policy in the matter of promotion. Here is a case where a society has filed writ petitions stating that its members are affected due to the reservation policy of the State Government in the matter of recruitment to the Kerala Administrative Service. We have no hesitation to hold that a society cannot be termed to be an 'aggrieved person', especially in a service matter, because any member of the said community is entitled, as of right, to challenge O.P(KAT) No. 506/2019 & batch : 56: the same before the Tribunal, if they are really aggrieved persons. In order to fortify the said aspect, learned Government Pleader has invited our attention to the judgment of a Seven Member Constitution Bench of the Apex Court in L. Chandra Kumar v. Union of India and others [(1997) 3 SCC 261], wherein it was held that it would be open for the litigants to raise constitutional issues before the Tribunals, especially in relation to Articles 14, 15 and 16 of the Constitution of India, failing which it would not serve the purpose for which Tribunals were constituted. Therefore, it is amply clear that an aggrieved person is entitled to approach the Administrative Tribunal and it is not a case where there is no forum available for an aggrieved person to adjudicate his grievances.
39. In Central Electricity Supply Utility of Odisha v. Dhobei Sahoo and others [(2014) (1) SCC 161], the Apex Court considered the scope of public interest litigations in service matters invoking Articles 226 and 32 of the Constitution of India and after conducting an elaborate survey of the decisions on the point, held as follows at paragraphs 23, 24 and 31:
23. Mr P.P. Rao, learned Senior Counsel, has commended us to the decision in Hari Bansh Lal v. Sahodar Prasad Mahto [Hari Bansh Lal v. Sahodar Prasad Mahto, (2010) 9 SCC 655 : (2010) 2 SCC (L&S) 771] , where the learned Judges referred to the principles laid down in Duryodhan Sahu v. Jitendra Kumar Mishra [Duryodhan Sahu O.P(KAT) No. 506/2019 & batch : 57: v. Jitendra Kumar Mishra, (1998) 7 SCC 273 : 1998 SCC (L&S) 1802] , Ashok Kumar Pandey v. State of W.B. [Ashok Kumar Pandey v. State of W.B., (2004) 3 SCC 349 : (2011) 1 SCC (Cri) 865] , B. Singh v. Union of India [B. Singh v. Union of India, (2004) 3 SCC 363 : (2007) 1 SCC (L&S) 616] , Dattaraj Nathuji Thaware v. State of Maharashtra [(2005) 1 SCC 590] and Gurpal Singh v. State of Punjab [(2005) 5 SCC 136 : 2005 SCC (L&S) 636] and expressed the view thus: (Hari Bansh Lal case [Hari Bansh Lal v. Sahodar Prasad Mahto, (2010) 9 SCC 655 : (2010) 2 SCC (L&S) 771] , SCC p. 661, para 15) "15. The above principles make it clear that except for a writ of quo warranto, public interest litigation is not maintainable in service matters."
24. Ordinarily, after so stating we would have proceeded to scan the anatomy of the Act, the Rules, the concept of the Scheme under the Act and other facets but we have thought it imperative to revisit certain authorities pertaining to public interest litigation, its abuses and the way sometimes the courts perceive the entire spectrum. It is an ingenious and adroit innovation of the Judge-made law within the constitutional parameters and serves as a weapon for certain purposes. It is regarded as a weapon to mitigate grievances of the poor and the marginalised sections of the society and to check the abuse of power at the hands of the executive and further to see that the necessitous law and order situation, which is the duty of the State, is properly sustained; the people in impecuniosity do not die of hunger; the national economy is not jeopardised; the rule of law O.P(KAT) No. 506/2019 & batch : 58: is not imperilled; human rights are not endangered; and probity, transparency and integrity in governance remain in a constant state of stability. The use of the said weapon has to be done with care, caution and circumspection. We have a reason to say so, as in the case at hand there has been a fallacious perception not only as regards the merits of the case but also there is an erroneous approach in issuance of direction pertaining to recovery of the sum from the holder of the post. We shall dwell upon the same at a later stage.
31. Thus, from the aforesaid authorities it is quite vivid that the public interest litigation was initially evolved as a tool to take care of the fundamental rights under Article 21 of the Constitution of the marginalised sections of the society who because of their poverty and illiteracy could not approach the court. In quintessence it was initially evolved to benefit the have-nots and the handicapped for protection of their basic human rights and to see that the authorities carry out their constitutional obligations towards the marginalised sections of people who cannot stand up on their own and come to court to put forth their grievances. Thereafter, there have been various phases as has been stated in Balwant Singh Chaufal [State of Uttaranchal v. Balwant Singh Chaufal, (2010) 3 SCC 402 :
(2010) 2 SCC (Cri) 81 : (2010) 1 SCC (L&S) 807] . It is also perceptible that the Court has taken note of the fact how the public interest litigations have been misutilised to vindicate vested interests for the propagated public interest. In fact, as has been seen, even the people who are in service for their seniority and promotion have preferred public interest litigations. It has also come to the notice of this Court that some persons, who O.P(KAT) No. 506/2019 & batch : 59: describe themselves as pro bono publico, have approached the Court challenging grant of promotion, fixation of seniority, etc. in respect of third parties.
40. The same was the proposition laid down by the Apex Court in Ayaaubkhan Noorkhan Pathan and others v. State of Maharashtra and others [(2013) 4 SCC 465 and Girjesh Shrivasthava and others v. State of Madhya Pradesh and others [(2010) 10 SCC 707]. That Apart, a Division Bench of this Court in Jaleel P.P. v. Muralikrishnan P.K and others [(2014) 1 ILR 894] considered the question of entertaining the Public Interest Litigation in service mattes and held that courts must take care and caution to see that under the guise of public interest, an ugly private malice, vested interest or cheap publicity is not being achieved and further that in service matters, a third party having no concern with the case at hand does not have the locus standi to raise any grievance by way of Public Interest Litigation.
41. Considering the above aspects, we are of the view that the petitioner in the writ petitions have not made out any case as that of an aggrieved person so as to entertain a Public Interest Litigation in a service matter.
Upshot of the above discussion is that the petitioners in the original petitions have not made out any case to interfere with the order passed by the Administrative Tribunal in the original O.P(KAT) No. 506/2019 & batch : 60: applications referred to above, since there is no jurisdictional error or other legal infirmities justifying interference in original petitions exercising the powers conferred under Article 227 of the Constitution of India. Needless to say, the original petitions and the writ petitions have no sustenance and they are, accordingly, dismissed.
S. MANIKUMAR, CHIEF JUSTICE.
SHAJI P. CHALY, JUDGE.
Rv O.P(KAT) No. 506/2019 & batch : 61: APPENDIX OF OP(KAT) 506/2019 PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE O.A.NO.1535/2019 DATED 25.7.2019 BEFORE KERALA ADMINISTRATIVE TRIBUNAL AT THIRUVANANTHAPURAM.
EXHIBIT P1(A1) TRUE COPY OF THE G.O.(RT) NO.7725/2013/GAD DATED 24.9.2013 BY WHICH THE COMMITTEE IS APPOINTED.
EXHIBIT P1(A2) TRUE COPY OF STUDY REPORT OF THE COMMITTEE APPOINTED BY ANNEXURE-A1.
EXHIBIT P1(A3) TRUE COPY OF G.O.(MS) NO.228/2014/GAD DATED 16.8.2014 BY WHICH THE GOVERNMENT DECIDED TO SET UP KERALA ADMINISTRATIVE SERVICE.
EXHIBIT P1(A4) TRUE COPY OF G.O.(MS) NO.1/2015/GAD DATED 5.1.2015.
EXHIBIT P1(A5) TRUE COPY OF G.O.(RT) NO.322/2016/P&ARD DATED 16.8.2016.
EXHIBIT P1(A6) TRUE COPY OF KAS RULES 2018 WITH EFFECT FROM 1.1.2018 NOTIFIED BY SRO, NO.861/2017 DATED 29.12.2017.
EXHIBIT P1(A7) TRUE COPY OF LEGAL ADVICE DATED 15.3.2018 OF ADVOCATE GENERAL TO CHIEF MINISTER.
EXHIBIT P1(A8) TRUE COPY OF G.O.(P) NO.4/2019/P&ARD BY WHICH THE KERALA ADMINISTRATIVE SERVICE (KAS) AMENDMENT RULES 2019 BROUGHT INTO FORCE WHICH IS PUBLISHED AS SRO NO.464/2019 DATED 11.7.2019.
EXHIBTI P2 TRUE COPY OF THE REPLY STATEMENT DATED 29.8.2019 BY IST AND 2ND RESPONDENTS IN O.A.NO.1535/2019.
EXHIBIT P2(R1(a)) TRUE COPY OF ORDER ISSUED BY THE KERALA STATE SCHEDULED CASTES AND SCHEDULED COMMISSION DATED 5.7.2018.
EXHIBIT P2(R1(b)) TRUE COPY OF THE ORDER ISSUED BY THE STATE MINORTIY COMMISSION RECOMMENDING THE GOVERNMENT FOR PROVIDING RESERVATION IN STREAMS II AND III.
O.P(KAT) No. 506/2019 & batch : 62:EXHIBIT P3 TRUE COPY OF REPLY STATEMENT DATED 30.1.2019 BY RESPONDENTS 3 AND 4.
EXHIBIT P4 TRUE COPY OF NOTIFICATION DATED 1.11.2019 AS CATEGORY NO.186-188/2019 FOR SELECTION AND APPOINTMENT TO THE ENTRY CADRE POST IN KERALA ADMINISTRATIVE SERVICE.
EXHIBIT P5 TRUE COPY OF ORDER DATED 28.11.2019 IN O.A.NO.1535/2019 BY KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM.
EXHIBIT P6: TRUE COPY OF THE ORDER DATED 20.02.2020 IN SLP NO. 4754/2020 BY SUPREME COURT.
EXHIBIT P7: TRUE COPY OF THE ORDER DATED 13.07.2020 IN SLP NO.6906/2020.
/True Copy/ PS to Judge.
rv O.P(KAT) No. 506/2019 & batch : 63: APPENDIX OF OP(KAT) 58/2020 PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE OA NO.2009 OF 2019 DATED 24.09.2019 ALONG WITH ANNEXURES.
ANNEXURE A1 TRUE COPY OF THE GO(MS) NO.377/1963/PD DATED 21.08.1963.
ANNEXURE A2 TRUE COPY OF THE GO(RT) NO.77 25/2013/GAD DATED 24/09/2013.
ANNEXURE A3 TRUE COPY OF THE REPORT OF THE COMMITTEE DATED 14.03.2014 CONSTITUTED FOR STUDYING THE FEASIBILITY OF CREATING STATE CIVIL SERVICE.
ANNEXURE A4 TRUE COPY OF THE GO(MS) NO.1/2015/GAD DATED 05.01.2015.
ANNEXURE A5 TRUE COPY OF THE GO(MS)NO.9/2015/GAD DATED 08.01.2015.
ANNEXURE A6 TRUE COPY OF THE GO(RT) NO.322/2016/P & ARD DATED 16.08.2016.
ANNEXURE A7 TRUE COPY OF THE REPORT ALONG WITH THE COVERING LETTER DATED 17.12.2016.
ANNEXURE A8 TRUE COPY OF THE GO(MS) NO.1/2017/P & ARD DATED 04.01.2017.
ANNEXURE A9 TRUE COPY OF THE MINISTERS' CABINET NOTE DATED 28.12.2016.
ANNEXURE A10 TRUE COPY OF THE REPRESENTATION DATED 10.01.2017 FILED BY THE ASSOCIATION FOR AND ON BEHALF OF ALL THE EMPLOYEES OF THE SECRETARIAT.
ANNEXURE A11 TRUE COPY OF THE GO(MS) NO.16/2016/P & ARD DATED 06.08.2016.
ANNEXURE A12 TRUE COPY OF THE GO(MS)NO.21/2016/P & ARD DATED 30.08.2016.
ANNEXURE A 13 TRUE COPY OF THE LETTER NO.23/GEN./2016/ARC DATED 19.12.2016.
ANNEXURE A14 TRUE COPY OF THE MINUTES OF THE MEETING DATED 21.11.2016.
O.P(KAT) No. 506/2019 & batch : 64:ANNEXURE A15 TRUE COPY OF THE GOVT. NOTE BEARING NO.361/SCI/2016/GA(SC) DATED 24.06.2016.
ANNEXURE A16 TRUE COPY OF THE DRAFTED SPECIAL RULES FOR KERALA ADMINISTRATIVE SERVICE.
ANNEXURE A17 TRUE COPY OF THE GOVT.LETTER BEARING NO.AR.12(1)/141/2017/P & ARD DATED 03.08.2017. ANNEXURE A18 TRUE COPY OF THE ORDER DATED 21.06.2019 IN OA NO.261 OF 2017.
ANNEXURE A19 TRUE COPY OF RELEVANT PAGES OF THE KERALA ADMINISTRATE SERVE RULES ISSUED BY GO(P)NO.12/2017/P & ARD DATED 29.12.2017 CAME INTO EFFECT ON 01.01.2018.
ANNEXURE A20 TRUE COPY OF THE KERALA ADMINISTRATIVE SERVICE (KAS) AMENDMENT RUELS, 2019 DATED 11.07.2019.
ANNEXURE A21 TRUE COPY OF THE CIRCULAR NO.19274/ADV.C3/2002/P & ARD DATED 04.03.2003. ANNEXURE A22 TRUE COPY OF THE CIRCULAR NO.11884/R1/07/P & ARD DATED 19.07.2010.
ANNEXURE A23 TRUE COPY OF THE REPRESENTATION DATED 26.07.2019 SUBMITTED BY THE ASSOCIATION BEFORE THE 1ST RESPONDENT.
ANNEXURE A24 TRUE COPY OF THE REPRESENTATION DATED 26.07.2019 FILED BY THE APPLICANTS 1, 2 AND 3 BEFORE THE 1ST RESPONDENT.
EXHIBIT P2 TRUE COPY OF THE NOTIFICATION DATED 01.11.2019 AS CATEGORY NUMBER 186-188/2019 FOR SELECTION AND APPOINTMENT TO THE ENTRY CADRE POST IN KERALA ADMINISTRATIVE SERVICE.
EXHIBIT P3 TRUE COPY OF THE ORDER DATED 28.11.2019 IN OA NO.2009 OF 2019.
/True Copy/ PS to Judge.
rv O.P(KAT) No. 506/2019 & batch : 65: APPENDIX OF WP(C) 31428/2019 PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF G.O.(P) NO.12/2017/P&ARD DATED 29.12.2017.
EXHIBIT P2 TRUE COPY OF THE ANSWER GIVEN BY CHIEF MINISTER BEFORE THE LEGISLATIVE ASSEMBLY ON 12.12.18.
EXHIBIT P3 TRUE COPY OF THE G.O.(P) NO.4/2019/P&ARD DATED 11.7.2019.
EXHIBIT P4 COPY OF THE REGISTRATION CERTIFICATE OF THE PETITIONER ORGANISATION.
EXHIBIT P5 COPY OF THE MINUTES DAYED 11.8.19
RESPONDENT'S/S EXHIBITS:
EXHIBIT R1(a): A PHOTOCOPY OF THE ORDER DATED 5.7.2018
WITH ENGLISH TRANSLATION
EXHIBIT R2(b): A PHOTOCOPY OF THE ORDER DATED 5.4.2018
WITH ENGLISH TRANSLATION
EXHIBIT R1(c): A PHOTOCOPY OF THE ORDER DATED 28.11.2019
IN OA NO.1535/2019
/True Copy/
PS To Judge.
rv
O.P(KAT) No. 506/2019 & batch : 66:
APPENDIX OF WP(C) 20322/2020
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE REGISTRATION CERTIFICATE OF
PETITIONER ORGANIZATION ALONG WITH
TRANSLATION.
EXHIBIT P2 TRUE COPY OF G.O.(P)NO.12/2017/P&ARD DATED
29.12.2017.
EXHIBIT P3 TRUE COPY OF THE G.O.(P)NO.4/2019/P&ARD DATED
11.7.2019.
RESPONDENTS' EXHIBITS: NIL
/True Copy/
PS To Judge.
rv