Kerala High Court
Shamej Kumar P.M vs State Of Kerala on 26 February, 2020
Bench: K.Vinod Chandran, P.V.Kunhikrishnan
O.P(KAT) No.306 of 2018 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM "[CR]"
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
WEDNESDAY, THE 26TH DAY OF FEBRUARY 2020 / 7TH PHALGUNA, 1941
OP(KAT).No.306 OF 2018(Z)
AGAINST THE ORDER IN OA 1890/2016 DATED 24-01-2018 OF KERALA
ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM
PETITIONERS:
1 SHAMEJ KUMAR P.M.
AGED 45, S/O. KANAVAN K.M., RESIDING
ATKIZHAKKEMANAYANGOTH, IRINGAL P.O., PAYYOLI,
KOZHIKODE, PIN - 673 521, PHONE : 8281540247,
WORKING AS LEADING FIREMAN, FIRE & RESCUE STATION,
THALASSERY, KANNUR DISTRICT, PIN - 670 101.
2 V.K. BABU
S/O. CHANDU, AGED 48 YEARS, RESIDING AT VEYAM
KANDY, IRINGATHU P.O., PAYYOLI, KOZHIKODE DISTRICT,
PIN - 673 523, PHONE : 9544721621, WORKING AS
LEADING FIREMAN, FIRE & RESCUE STATION, KANNUR, PIN
- 670 001.
3 PAUL DAVID P.
S/O. P.P.DEVASSY, AGED 48 YEARS, RESIDING AT
PUTHIYAVEETTIL HOUSE, SOUTH CHITTOOR P.O.,
ERNAKULAM, PIN - 682 027, PHONE : 9846009093,
WORKING AS LEADING FIREMAN, FIRE & RESCUE STATION,
HIGH ROAD, THRISSUR, PIN - 680 001.
4 P.B. PREMKUMAR
S/O. G.PUSHPAKARAN NAIR, AGED 44, RESIDING AT
PUSHPALAYAM, OLATHANNI, NEYYATTINKARA P.O.,
THIRUVANANTHAPURAM - 695 121, WORKING AS LEADING
FIREMAN, FIRE & RESCUE STATION, NEYYATTINKARA P.O.,
THIRUVANANTHAPURAM DISTRICT, PIN - 695 121.
BY ADVS.
SRI.ELVIN PETER P.J.
SRI.K.R.GANESH
O.P(KAT) No.306 of 2018 2
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY SECRETARY TO GOVERNMENT, HOME
DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM - 695 001.
2 DIRECTOR GENERAL
FIRE & RESCUE SERVICES HEADQUARTERS,
THIRUVANANTHAPURAM - 695 001.
3 M. NOUSHAD
AGED 46 YEARS, S/O. MUHAMMED HANEEFA, "ASIFARIS",
T.C.94/708(1) FIRST LEFT ROAD, AYYANKALI ROAD,
PATTOOR, VANCHIYOOR P.O., TRIVANDRUM, L.F.NO. 4671,
FIRE AND RESCUE STATION, CHACKAI, TRIVANDRUM - 695
007.
4 G.K. BYJU
AGED 46 YEARS, S/O. B. GOPALAN, ANJANEYAM, KONCHIRA
P.O., TRIVANDRUM - 695 615, L.F.NO. 4545, FIRE AND
RESCUE STATION, CHACKAI, TRIVANDRUM - 695 007.
5 K. SATHEESH
AGED 47 YEARS, S/O. P.NARAYANAN, PULIKKODANVEEDU,
KUNDUKARA, MADIKKAI P.O., NEELESWARAM VIA.,
KASARCODE - 671 314, L.F.NO. 4538, FIRE & RESCUE
STATION, KASARCODE - 671 121.
6 S. JAYAKUMAR
AGED 47 YEARS, S/O. S. KUMARAN NAIR, UMASANKAROM,
T.C.2/1054/6, HOUSE NO. A51, KOONAMKULAM LANE,
MEDICAL COLLEGE P.O., PIN - 695 011, L.F.NO. 4556,
FIRE & RESCUE STATION, CHACKAI, TRIVANDRUM - 695
007.
R2 BY GOVERNMENT PLEADER
R3-4 BY ADV. VISHAK.K.JOHNSON
R3-4 BY ADV. DR.M.ABDUL SAMAD
R3-4 BY ADV. S.NITHIN
OTHER PRESENT:
SR.GP SRI.T.RAJASEKHARAN NAIR
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN
FINALLY HEARD ON 26-02-2020, THE COURT ON 26-02-2020
DELIVERED THE FOLLOWING:
"CR"
K.VINOD CHANDRAN & P.V.KUNHIKRISHNAN, JJ
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O.P(KAT) No.306 of 2018
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Dated this the 26th day of February, 2020
JUDGMENT
P.V.Kunhikrishnan, J The above Original Petition is filed by the petitioners in O.A.No.1890/2016 on the file of Kerala Administrative Tribunal, Thiruvananthapuram (for short Tribunal) with following prayers:
" a) To call for the records leading to Ext P3 order and set aside the same to the extent it directs in paragraph 4 that further promotions shall be made based on the seniority in the category of leading fireman;
b) To issue a direction to the respondents to make promotion to the category of Assistant Section Officer from a select list of successful candidates who have completed the Assistant Station Officers course based on the date of first appointment of each candidate in the service as laid down in the Special Rules;
c) To declare that the petitioners are entitled to be promoted as Assistant Station Officers in accordance with the O.P(KAT) No.306 of 2018 4 date of their first appointment as Fireman in the Kerala Fire & Subordinate Service;
d) to issue such other directions or orders as this Hon'ble Court deems fit and proper in the interest of justice and circumstances of the case."
2. The petitioners are working as Leading Fireman in the Fire & Rescue Services of the Government of Kerala. The applicants were recruited through Kerala Public Service Commission (For short KPSC) as Fireman and later promoted as Leading Fireman on satisfying the norms prescribed for the said promotion.
3. The petitioners approached the Tribunal with a prayer to include their names in the final list of successful candidates to attend the 29th batch of Assistant Station Fire Officers Course. The Kerala Fire Subordinate Service Rules, 1988 (hereinafter mentioned as Special Rules) is the Special Rules applicable to the members of the Kerala Fire Subordinate Service. As per Rule 2, the post of 'Assistant Station Officer' is included in Category
2. Method of appointment as per Rule 3 of the Special Rules for filling up the post of Assistant Station Officer is O.P(KAT) No.306 of 2018 5 by promotion from Category 3 Leading Fireman and Category 4 Driver Mechanic. As per the Note to Category 2 of Rule 3 of the Special Rules, it is stated that the vacancies in the category of Assistant Station Officer shall be filled up in the ratio 9:1 from among the category 3 Leading Fireman and Category 4 Driver Mechanic. It is also stated in the Note that the first vacancy should be filled up from Category 3. Hence the next avenue for promotion available to the petitioners who are working as Leading Fireman which is included as Category 3 is to the category of Assistant Station Officer. Category 2 of Annexure to Rule 6(b) of the Special Rules lays down the qualification to the post of Assistant Station Officer. The said provision reads as follows:
"2. Assistant Station Officer.
Successful completion of the qualifying course for Assistant Station Officer at Fire Service Training School for a period of 4 months and a pass in the examination in the subjects prescribed for the course.
Note: Candidates for the course shall be selected according to their seniority in O.P(KAT) No.306 of 2018 6 the feeder categories. Leading Fireman who have completed three years service as Leading Fireman and Driver Mechanics who have completed eight years of service in the Department are eligible for selection to the course. Select lists of successful candidates in the course shall be prepared on the basis of the date of first appointment of each candidate in the service."
(emphasis supplied)
4. From the above provision contained in Special Rules, it can be seen that, one of the qualification prescribed for the post of Assistant Station Officer is successful completion of the qualifying course for Assistant Station Officer at Fire Service Training School for a period of 4 months and a pass in the examination in the subjects prescribed for the course. The Note to the Special Rules lays down that, candidates undergoing the above course shall be selected according to their seniority in the feeder category. This is the first limb of the Note. Therefore, the candidate for the course is to be selected according to their seniority in the feeder category. But the last limb of the above Note will clearly O.P(KAT) No.306 of 2018 7 show that select list of successful candidate in the course shall be prepared "on the basis of the date of first appointment of each candidate in the service".
5. The 2nd respondent as per Annexure A1 letter dated 11.3.2016 produced along with the Original Application published a provisional seniority list of officers who are found eligible for the Assistant Station Officers posts. In the seniority list appended to Annexure A1, the petitioners were included as Sl.Nos.28, 32, 70 and 174 respectively. Rank of the petitioners in the feeder category of Assistant Station Officer (Leading Fireman) as shown in Annexure A1 is 4068, 4184, 4250 & 4435 respectively. But the case of the applicants before the Tribunal was that when the final list of officers entitled to be deputed to the Assistant Station Officers post was published as per Annexure A5, the name of the petitioners were excluded. At the same time, the name of their juniors were included. Based on Annexure A5, it was contended that rank up to 4447 were included in the O.P(KAT) No.306 of 2018 8 said list and the petitioners were excluded even though the rank of the petitioners in the seniority list were much above rank no.4447. In such circumstances, the petitioners approached the Tribunal by filing O.A No.1890 of 2016 seeking for a direction to include the name of the petitioners in the list appended to Annexure A5 and to depute the petitioners for the 28th batch of Assistant Station Officers course.
6. The Tribunal passed an interim order dated 31.8.2016 directing the respondents to admit the petitioners for training in the 28th batch, provisionally, subject to further orders in the Original Application. Thereafter, the Tribunal passed an order dated 2.12.2016 on completion of the training, the course certificate shall be issued only after getting permission from the Tribunal. Subsequently, the Tribunal considered the Original Application itself and as per Ext P3 order dated 24.1.2018 allowed the Original Application directing to release the certificate of the course to the O.P(KAT) No.306 of 2018 9 petitioners. But the Tribunal issued a further direction in Ext P3 in the last sentence of paragraph 4, which is extracted here under:
"However, it is made clear that their further promotions shall be strictly based on their seniority in the cadre of Leading Fireman".
7. The petitioners are challenging this part of Ext P3 order. According to the petitioners, the said order is issued in the teeth of the statutory provisions contained in the Special Rules.
8. Heard the learned counsel for the petitioner and the learned Government Pleader.
9. We are of the view that, there is force in the contention of the petitioner. Category 2 of Annexure 1 of the sub rule which is extracted earlier, it is clear that, the qualification for the post of Assistant Station Officer is the successful completion of the qualifying course at Fire Service Training School for a period of four months and a pass in the examination in the subject prescribed for the course. The Note to the above category deals about the O.P(KAT) No.306 of 2018 10 'selection of candidates for the course' and preparation of select list of the successful candidates in the course. Leading Fireman who had completed 3 years of service as Leading Fireman and Driver Mechanic who have completed 8 years of service in the department are eligible for selection to the course. It is clear that there are two limbs in the Note. The first limb deals with the selection of candidates to the course. According to the Note, the selection of candidate to the course should be according to their seniority in the feeder category. This is since from each of the category there is a ratio for appointment by promotion. The last limb of the Note to Category 2 says that preparation of select list of the successful candidate in the course shall be prepared on the basis of the date of first appointment of each candidate in the service. Therefore, it is clear that while selecting candidate for the course, as per the Note to the Category 2 of the Special Rules, the criteria is seniority in the feeder category. O.P(KAT) No.306 of 2018 11 On the other hand, select list of successful candidate in the course should be prepared on the basis of the date of first appointment of each candidate in the service.
10. The Tribunal, in the last sentence of paragraph 4 of Ext P3 impugned order it is stated that, "However it is made clear that their further promotions shall be strictly based on their seniority in the cadre of Leading Fireman". This is contrary to the last limb of Note to the category 2 of Annexure 1 of the Special Rules. When the Special Rules is clear that the select list of successful candidate in the course shall be prepared on the basis of the date of first appointment of each candidate in the service, it is improper on the part of the Tribunal to observe that the further promotion shall be strictly based on the seniority of the applicants in the cadre of Leading Fireman. Hence, this part of the order of the Tribunal is unsustainable in the light of the specific provision in the Special Rules.
11. At this stage, the Government Pleader pointed O.P(KAT) No.306 of 2018 12 out that, in a similar situation Note to category 2 of Annexure 1 of the Special Rules is interpreted by a learned Single Judge of this court in judgment dated 23.7.2009 in WP(C) No.23622 of 2009. According to the learned Government Pleader, the learned Single Judge observed that the last sentence in the Note makes no sense and that will not over ride the first sentence which is to the effect that the candidate for the course shall be selected according to their seniority in the feeder category. The relevant portion of the judgment dated 23.7.2009 in W.P(C) No. 23622 of 2009 is extracted here under:
10. Going by the Special Rules read with Rule 28(b)(ii) of KS and SSR, I am of opinion that clearly the promotion to the post of Assistant Station Officer has to be based on the seniority position of the eligible persons in the category of Driver Mechanic. No doubt, the second and and third sentences in the Note to Special Rules applicable to the post of Assistant Station Officer have created some confusion in the matter. However, that cannot override the first sentence which is to the effect that candidates for the course shall be selected according to O.P(KAT) No.306 of 2018 13 their seniority in the feeder categories.
The same read with the method of appointment and Rule 28(b)(ii) of the K.S and S.S.R do not give room for any doubt whatsoever regarding the fact that promotion to the post of Assistant Station Officer can only be on the basis of seniority in the category of Driver Mechanic. There cannot be any difficulty in reading the second sentence in conformity with that legal position. The second sentence only enables the Driver Mechanic who have completed 8 years of service in the Department for selection to the training course. But, such selection should also be on the basis of seniority as provided in the first sentence.
Therefore, if there are no other person senior to respondents 2 and 3 who are eligible to be deputed for training, the respondents 2 and 3 would be eligible for deputation for training although they have not completed 8 years in the cadre of Driver Mechanic, since they had completed 8 years of service in the Department. According to me, the last sentence in the Note makes no sense. I am at a loss to understand the purpose of preparing the so called select list as per the third sentence in the Note. Insofar as the promotion is by seniority, the question of preparation of a select list of persons who have undergone the training does not arise in the case of Assistant Station Officer. The question of preparing a select list arises only when the method of promotion is by selection. Therefore, no purpose would be served by preparing a O.P(KAT) No.306 of 2018 14 select list of successful candidates for the training course on the basis of date of first appointment of each candidate in the service. In any event, that cannot make any difference as between the petitioners and respondents 2 and 3 since they have undergone the training course in two different batches. Even going by the 3rd sentence in the Note, the so called select lists have to be prepared separately for the 19th and 20th batches. Since the petitioners would be included in the select list for the 19th batch, I am of opinion that the petitioners would have to be preferred ahead of respondents 2 and 3 for promotion to the post of Assistant Station Officer, since they can be included only in the select list for the 20th batch.
12. We are not in a position to accept the interpretation laid down by the learned Single Judge in the above decision. When in the Note to the Category 2 of Annexure 1 of the Special Rule it is clearly stated that while selecting for the course the seniority in the feeder category is to be considered and for preparing the select list of successful candidate the basis should be the date of first appointment of each candidate in the service, this Court or the Tribunal cannot interpret the Note or O.P(KAT) No.306 of 2018 15 observe that the 2nd limb of the Note makes no sense. When there is no ambiguity in the Special Rule, the Court or the Tribunal cannot interpret the same and use the same for the convenience of the cases. The learned Single Judge also relied on Rule 28(b)(ii) of KS & SSR, while interpreting the Note in Category 2 of Annexure 1 of the Special Rules. When the Special Rules is clear and there is no ambiguity in the Special Rules, we cannot rely on a provision in the General Rule especially because, the Special Rules are framed after the General Rules. In this case, Note to category 2 of Annexure 1 of the Special Rule, it is clear that, while preparing select list of successful candidates in the course shall be prepared on the basis of the date of first appointment of each candidate in the service. This Court or the Tribunal cannot sit in appeal over the wisdom of the Rule making authority, unless the Rule or Note itself is under challenge. In such circumstances, the findings of the learned Single Judge about the interpretation of Note to O.P(KAT) No.306 of 2018 16 the category 2 of Annexure 1 of the Special Rules is not correct interpretation and hence the same is overruled.
13. In the light of our findings in the earlier paragraphs, the findings of the Tribunal in the last sentence of paragraph 4 of the impugned order is unsustainable.
Hence this OP(KAT) is allowed. The last sentence in paragraph 4 of Ext P3 is set aside. The respondents are free to make promotion to the post of Assistant Station Officer in accordance with the Special Rules. No order as to costs.
Sd/-
K.VINOD CHANDRAN, JUDGE Sd/-
P.V.KUNHIKRISHNAN, JUDGE cms xxx O.P(KAT) No.306 of 2018 17 APPENDIX PETITIONERS EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE O.A.NO. 1890/2016 BEFORE THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM.
ANNEXURE A1 TRUE COPY OF THE 2ND RESPONDENT'S LETTER NO.316/16 DATED 11/03/2016 ADDRESSED TO ALL DIVISIONAL OFFICERS.
ANNEXURE A2 TRUE COPY OF THE 2ND RESPONDENT'S ORDER NO.E4-4762/2016 DATED 20/04/2016.
ANNEXURE A3 TRUE COPY OF THE 2ND RESPONDENT'S ORDER NO.E4-4762/2016 DATED 27/04/2016.
ANNEXURE A4 TRUE COPY OF THE 2ND RESPONDENT'S LETTER NO.E4-9667 DATED 23/07/2016 ADDRESSED TO ALL ASSISTANT DIVISIONAL OFFICERS.
ANNEXURE A5 TRUE COPY OF THE 2ND RESPONDENT'S ORDER NO. E4-9667/2016.
ANNEXURE A6 TRUE COPY OF THE 1ST APPLICANT'S REPRESENTATION DATED 08/08/2016 ADDRESSED TO THE 1ST RESPONDENT.
ANNEXURE A6(A) TRUE COPY OF THE 1ST APPLICANT'S POSTAL RECEIPT DATED 08/08/2016.
ANNEXURE A7 TRUE COPY OF THE 2ND APPLICANT'S REPRESENTATION DATED 08/08/2016 ADDRESSED TO THE 1ST RESPONDENT.
ANNEXURE A7(A) TRUE COPY OF THE 2ND APPLICANT'S POSTAL RECEIPT DATED 08/08/2016.
ANNEXURE A8 TRUE COPY OF THE 3RD APPLICANT'S REPRESENTATION DATED 08/08/2016 ADDRESSED TO THE 1ST RESPONDENT.
ANNEXURE A8(A) TRUE COPY OF THE 3RD APPLICANT'S POSTAL RECEIPT DATED 08/08/2016.
ANNEXURE A9 TRUE COPY OF THE 4TH APPLICANT'S REPRESENTATION DATED 08/08/2016 ADDRESSED TO THE 1ST RESPONDENT.O.P(KAT) No.306 of 2018 18
ANNEXURE A9(A) TRUE COPY OF THE 4TH APPLICANT'S POSTAL RECEIPT DATED 08/08/2016.
EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT FILED BY THE RESPONDENTS 3 TO 6 IN EXT.P-1 O.A. ANNEXURE R1 COPY OF SERVICE ORDER NO.149/2016 DATED 14/07/2016 (THE SENIORITY LIST).
ANNEXURE R2 COPY OF SPECIAL RULE : NOTIFICATION GO(P) NO.99/88/HOME DATED 17TH AUGUST, 1988.
ANNEXURE R3 COPY OF THE INFORMATION NO. G4401/16 DATED 19/04/2016.
ANNEXURE R4 COPY OF ORDER NO. E4-9667/2016 DATED 05/09/2016.
ANNEXURE R5 COPY OF INTERIM ORDER DATED 20/09/2016 IN OA NO.2163/2016.
ANNEXURE R6 COPY OF ORDER NO.E-4-4762/2016 DATED 19/11/2016.
EXHIBIT P3 TRUE COPY OF THE ORDER DATED 24.01.2018 IN O.A.NO. 1890/2016 OF THE HON'BLE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM.
EXHIBIT P4 TRUE COPY OF THE COMMUNICATION DATED 23.11.2016 ISSUED BY THE 2ND RESPONDENT TO THE GOVERNMENT.
RESPONDENTS EXHIBITS:
EXHIBIT R2(A) A TRUE PHOTOCOPY OF THE LETTER DATED 21/07/2017 ISSUED BY THE 1ST RESPONDENT TO THIS RESPONDENT.
EXHIBIT R2(B) A TRUE PHOTOCOPY OF THE JUDGMENT RENDERED BY THIS COURT IN WPC NO.23622/2007.
EXHIBIT R2(C) TRUE COPY OF THE ORDER DATED 08/12/15 PASSED BY THE KERALA ADMINISTRATIVE TRIBUNAL IN OA NO.906/2014.
cms /TRUE COPY/ P.S.TO JUDGE