Kerala High Court
Sherry M.S vs Kerala Public Service Commission on 9 June, 2015
Author: Dama Seshadri Naidu
Bench: P.R.Ramachandra Menon, Dama Seshadri Naidu
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
&
THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU
TUESDAY, THE 28TH DAY OF FEBRUARY 2017/9TH PHALGUNA, 1938
OP(KAT).No. 149 of 2015 (Z)
----------------------------
AGAINST THE ORDER/JUDGMENT IN OA 739/2015 of KERALA
ADMINISTRATIVETRIBUNAL, THIRUVANANTHAPURAM
PETITIONER(S):
-------------
SHERRY M.S., AGED 34 YEARS,
W/O.SREEKANTH, OFFICE ATTENDANT,
VIGILANCE AND ANTI CORRUPTION BUREAU, SPECIAL CELL, KALOOR,
KOCHI, ERNAKULAM DISTRICT,
PIN-683 017, RESIDING AT MULANKARA HOUSE, EDAVANAKKAD,
EDAVANAKKAD P.O., ERNAKULAM DISTRICT-682 502,
MOB:9447030386.
BY ADVS.SRI.P.K.IBRAHIM
SMT.K.P.AMBIKA
SMT.A.A.SHIBI
RESPONDENT(S):
---------------------
1. KERALA PUBLIC SERVICE COMMISSION
THULASI HILLS, PATTOM PALACE P.O., THIRUVANANTHAPURAM,
PIN: 695 004, REPRESENTED BY ITS SECRETARY.
2. THE VIGILANCE AND ANTI CORRUPTION BUREAU
SPECIAL CELL, KALOOR, KOCHI,
ERNAKULAM DISTRICT-682 017,
REPRESENTED BY THE SUPERINTENDENT OF POLICE.
ADDL.R3 TO R5 IMPLEADED:
3. THE STATE OF KERALA REPRESENTED BY THE
OP(KAT).No. 149 of 2015 (Z)
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: 2 :
SECRETARY, DEPARTMENT OF HOME AFFAIRS,
SECRETARIAT, THIRUVANANTHAPURAM -1,
REPRESENTED BY ITS SECRETARY.
4. THE STATE POLICE CHIEF,
POLICE HEAD QUARTERS,
THIRUVANANTHAPURAM -1.
5. THE DIRECTOR, THE VIGILANCE AND
ANTI CORRUPTION BUREAU, OPPOSITE VIKAS BHAVAN,
THIRUVANANTHAPURAM - 33.
(ADDL.R3 TO R5 IMPLEADED AS PER ORDER DATED 09.06.2015 IN
I.A. NO. 7460 OF 2015 IN O.P. (KAT) NO. 149/2015)
R1 BY ADV. SRI.P.C.SASIDHARAN, SC, KPSC
R1-R2 BY ADV. SRI.K.A.JALEEL, ADDL. ADVOCATE GENERAL
R BY GOVERNMENT PLEADER
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY
HEARD ON 28-09-2016, ALONG WITH OP(KAT) NOS. 168 & 169 OF 2015,
THE COURT ON 28.02.2017 DELIVERED THE FOLLOWING:
OP(KAT).No. 149 of 2015 (Z)
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: 3 :
APPENDIX
PETITIONER(S)' EXHIBITS:
------------------------------
EXT.P1.COPY OF THE OA ALONG WITH ITS ANNEXURES.
ANNEXURE A1 IN EXT.P1: TRUE COPY OF THE GAZETTE NOTIFICATION OF THE 1ST
RESPONDENT DATED 12.06.2014 FOR VARIOUS POSTS INCLUDING TO THE POST
UNDER CATEGORY NO.254/2014.
ANNEXURE A2 IN EXT.P1: TRUE COPY OF THE SERVICE CERTIFICATE ISSUED BY
THE 2ND RESPONDENT DATED 17.03.2015.
ANNEXURE A3 IN EXT.P1: TRUE COPY OF THE PRINT OUT OF THE APPLICATION
DETAILS OF THE APPLICANT DATED 07.07.2014 FROM THE WEBSITE OF THE 1ST
RESPONDENT.
ANNEXURE A4 IN EXT.P1:TRUE COPY OF THE PROVISIONAL SHORTLIST OF THE
ELIGIBLE CANDIDATES FOR INTERVIEW PUBLISHED BY THE 1ST RESPONDENT
DATED 27.02.2015.
ANNEXURE A5 IN EXT.P1: TRUE COPY OF THE INTIMATION DATED 31.03.2015
RECEIVED FROM THE 1ST RESPONDENT CALLING FOR INTERVIEW SCHEDULED ON
10.04.2015.
ANNEXURE A6 IN EXT.P1: TRUE COPY OF THIS COMMUNICATION OF THE 1ST
RESPONDENT DATED 06.04.2015
ANNEXURE A7 IN EXT.P1: RELEVANT PARAGRAPHS OF THE WORK STUDY REPORT
CONDUCTED IN THE VIGILANCE AND ANTI CORRUPTION BUREAU IN 2004.
ANNEXURE A8 IN EXT.P1: TRUE COPY OF THE GO(MS) NO.106/2012/HOME DATED
13.04.2012 CREATING ADDITIONAL MINISTERIAL STAFF FOR INDIA RESERVE
BATTALION.
ANNEXURE A9 IN EXT.P1: TRUE COPY OF THE IDENTITY CARD ISSUED TO SMT.
JANCY MATHEW WHO IS AN OFFICE ATTENDANT AT THE DISTRICT POLICE OFFICE,
KANNUR AND WHO WAS AN APPLICANT TO THE POST NOTIFIED UNDER CATEGORY
NO.254/2014.
ANNEXURE A10 IN EXT.P1: TRUE COPY OF THE GAZETTE NOTIFICATION OF THE 1ST
RESPONDENT DATED 30.11.2013 INVITING APPLICATIONS TO LOWER DIVISION
TYPIST IN THE KERALA STATE ELECTRICITY BOARD UNDER CATEGORY
NO.463/2013.
OP(KAT).No. 149 of 2015 (Z)
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ANNEXURE A11 IN EXT.P1: TRUE COPY OF THE OFFICE UNDER ORDER NO.1/2014
ISSUED IN MARCH, 2014 BY THE 2ND RESPONDENT.
EXT.P2.COPY OF THE ORDER DATED 6/5/2015 DISMISSING OA NO.739/2015.
EXT.P3.COPY OF THE MA NO.1119/2015 IN OA NO.739/2015.
ANNEXURE A12 IN EXT.P3: TRUE COPY OF THE MA PRODUCING THE LETTER DATED
04.05.2015 OF THE STATE POLICE CHIEF ADDRESSED TO THE GOVERNMENT.
EXT.P4.COPY OF THE RELEVANT PAGES OF THE HAND BOOK ON POLICE
DEPARTMENT PUBLISHED IN THE WEBSITE BY THE STATISTICAL CELL.
EXT.P5.COPY OF THE PRINTOUT TAKEN FROM THE WEB SITE OF THE SIKKIM
VIGILANCE ORGANIZATION.
EXT.P6.COPY OF THE G.O.(MS) NO.358/68/HOME DATED 12/11/1968 PRODUCED AS
ANNEXURE-A11 IN OA 585/2015 AND RELIED BY THE TRIBUNAL.
EXT.P7: TRUE COPY OF THE RELEVANT PAGES OF THE REPORT, NAMELY PAGES 1
AND 302.
EXT.P8: TRUE COPY OF THE PRINT OUT TAKEN FROM THE WEB SITE OF THE KERALA
POLICE MINISTERIAL STAFF ASSOCIATION, KOCHI CITY.
EXT.P9: TRUE COPY OF THE INFORMATION OBTAINED BY THE HUSBAND OF THE
PETITIONER MR. SREEKANTH DATED 25.05.2015.
EXT.P10: TRUE COPY OF G.O.(MS)NO.358/68/HOME DATED 12.11.1968.
EXT.P11: TRUE COPY OF THE G.O.(MS) NO. 27/72/HOME DATED 08.03.1972
ALONG WITH TYPED COPY.
EXT.P12: TRUE COPY OF THE G.O (MS) NO. 36/74/HOME DATED 23.03.1974.
EXT.P13: TRUE COPY OF G.O. (MS) NO. 99/76/HOME DATED 28.07.1976 ALONG
WITH TYPED COPY.
RESPONDENT(S)' EXHIBITS: NIL
--------------------------------
/True Copy/
P.A to Judge.
rv
OP(KAT).No. 149 of 2015 (Z)
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'CR'
P.R.RAMACHANDRA MENON &
DAMA SESHADRI NAIDU, JJ.
-------------------------------------------
OP (KAT) Nos.149, 168 & 169 of 2015
--------------------------------------------
Dated this the 28thday of February 2017
JUDGMENT
Dama Seshadri Naidu, J.
The petitioner in OP (KAT) No.149 of 2015 is the unsuccessful applicant in OA No.739 of 2015 before the Kerala Administrative Tribunal, Thiruvananthapuram. The two unsuccessful applicants in OA No.585 of 2015 have filed individual OPs: OP (KAT) Nos.168 and 169 of 2015. All three are aggrieved by the Orders, dated 06.05.2015 and 08.04.2015. Because the issue in all the three OPs is identical, we are disposing them of through a common judgment. Though we have taken the pleadings and documents in OP (KAT) No.149 of 2015 as the bases for our discussion, we will refer to the facts of the other cases, too, wherever it is necessary. OP (KAT) No.149 of 2015:
2. Sherry M. S., the petitioner, is a graduate who joined the Department of Vigilance and Anticorruption Bureau on 02.04.2012 as O.P.(KAT) No.149/2015 & batch -2- an office attendant. In the course of time, the employer issued Annexure A1 notification, dated 12.06.2014, inviting applications for the post of Sub-Inspector of Police from "the Graduate Ministerial Staff of Police and Vigilance Department" with two-years' service.
3. Sherry, claiming to have been qualified, applied for the post notified online through Annexure A1. She faced a written test and was qualified; thereafter, she faced physical efficiency test and was qualified in that, too. Thus, she found herself among the candidates shortlisted for interview.
4. Just one day before Sherry could be interviewed, she received Annexure A6 communication from the 1st respondent that her application was rejected: an office attendant cannot be considered an employee of the "ministerial wing". Sherry stood disqualified.
5. Aggrieved, Sherry filed O.A.No.739 of 2015 before the Kerala Administrative Tribunal, assailing Annexure A6. The Tribunal dismissed the O.A by Ext.P2 order, dated 06.5.2015.
OP (KAT) Nos.168 and 169 of 2015:
6. Jancy Mathew and Dini A.P., the petitioners in these Original O.P.(KAT) No.149/2015 & batch -3- Petitions, too, are graduates employed in Police Department and Vigilance & Anti-corruption Bureau respectively. They had also applied to the post with identical credentials as Sherry has, faced rejection, and finally lost their contest before the Tribunal.
The Tribunal's Findings:
The Tribunal dismissed Sherry's plea; it held that Sherry belongs only to the last grade, but not to the ministerial category. So was the finding against Jancy Mathew and Dini A.P., as well. The Submissions:
The Petitioners':
7. Sri Ibrahim, the learned counsel for Sherry M.S., has contended that Annexure A6 order is perverse and unsustainable. According to him, Intra-departmentally and inter-departmentally, an office attendant is treated, all along, as a "ministerial staff" member. If the first respondent had entertained any `genuine' doubt about the definitional dynamics of the term "ministerial staff", he ought to have, at least, consulted the second respondent about the petitioner's nature of duties.
O.P.(KAT) No.149/2015 & batch -4-
8. Sri Ibrahim has also brought to our notice GO [Ms] No. 5566/HOME, dated 11.02.1966, to hammer home his contention that this order does not exclude graduates employed in the department-- even in the cadre of office attendants--from being considered to the post. He has also brought to our notice G.O. dated 12.11.1968, which, according to him, clarifies that the vacancies set apart for in-service candidates are meant for "such members of the ministerial staff" who satisfy the qualification prescribed for the post.
9. The learned counsel for Jancy Mathew and Dini A.P., have adopted Sri Ibrahim's submissions.
Respondents':
The Second Respondent's:
10. The learned Government Pleader has contended that the post of Office Attendant is included in the "Last Grade Service" and does not come under "Ministerial Category" in the subordinate service. As per Rule 16A of KSR-Vol I, "Last Grade Service" means, the learned Government Pleader asserts, service in any post in the Kerala Last Grade Service, published under GO (P) No.82/public (Rules) O.P.(KAT) No.149/2015 & batch -5- Department, dated 08.03.1966, in part I of the Kerala Gazette No. 14, dated 05.04.1966. Rule 12 (20) of KSR Vol-I, according to the learned Government Pleader, defines the Ministerial Staff as "an officer of a subordinate service whose duties are entirely clerical and any other class of officer specially defined as such by general or special order of Government.''
11. Because Sherry is working as an Office Attendant in the Vigilance and Anti-corruption Bureau, she cannot claim to belong to ministerial staff; she belongs only to the last grade service, asserts the learned Government Pleader. He has, further, referred to a Government letter, dated 07.09.2015, addressed to the Director, Vigilance & Anticorruption Bureau: that Sherry was appointed a peon in Vigilance Department, that her post was included in the last grade according to the nature of work she does and the scale of pay she draws. So a post of peon cannot be treated as a post in the Ministerial Wing.
12. In the end, the learned Government Pleader has submitted that the Tribunal's impugned Order is unexceptional and does not O.P.(KAT) No.149/2015 & batch -6- suffer from any legal infirmities. He thus wants us to dismiss the OP. First Respondent's:
13. Sri P. C. Sasidharan, the learned Standing Counsel for the Kerala Public Service Commission, has adopted the Government's line of defence. That apart, he has stated that the PSC has found Sherry to have been disqualified because she has not been discharging clerical functions; on the contrary, she is only an office attendant. Sri Sasidharan took us through the provisions of the Kerala Service Rules, especially Rules 16A and 12 (20) of the Rules. He further refers to what is said to be the Police Chief's letter, dated 04.05.2015: As per Government Orders, graduate ministerial employees such as clerk, special branch assistant alone are eligible. The Tribunal's Order, according to him, needs no interference.
Issue:
14. An employee, working as an office attendant/peon, responds to a departmental notification, applies to a superior post as an in- service candidate in the open recruitment, gets selected, but fails to get appointed. The notification speaks of employees from "among the O.P.(KAT) No.149/2015 & batch -7- graduate ministerial staff of police and vigilance department . . ." with two years' service in the police department. The employee is an office attendant. Does she belong to the Ministerial Staff? Discussion:
The Tribunal's Rationale:
15. The Tribunal dismissed Sherry's plea; it held that the employee belongs only to the last grade, but not to the ministerial category. To begin with, it has acknowledged that the expression "ministerial staff' has not been defined anywhere. It has, however, drawn parallels between that expression and "ministerial officer", which, in fact, is found defined: Rule 12 (20) of Part I of the Kerala Service Rules (KSR) defines the expression.
16. Statutorily, a `ministerial officer' is an officer of a subordinate service whose "duties are entirely clerical". Any other officer may also be treated as belonging to that category if Government so specifies through either general or special orders. It acknowledges that the employee is a member of the subordinate service, but concludes that her duties are not entirely clerical.
O.P.(KAT) No.149/2015 & batch -8-
17. The Tribunal, in the alternative, observes that in Ext.P11, the Government has permitted from the ranks of ministerial staff only those holding positions as "Clerks, Special Branch Assistants, Head Constables and Police Constables and Officers of corresponding rank.'' So the members of the last grade, the Tribunal concludes, cannot be treated as "officers of the correspondent rank."
The Logical Fallacy:
18. The decisional confusion has arisen out of the definitional conflation: equating "ministerial staff" with "clerical staff" and equating "last grade" with "ministerial staff".
19. If the ministerial staff is treated as the genus, the ministerial officer is the species; one is the whole, and the other is a part. The Tribunal, regrettably, equated the part with the whole. It admits of no ambiguity that ministerial staff includes the ministerial officer, and still covers beyond. Only those who perform clerical duties are called-- justifiably so--the ministerial officers, but that is not be all and end all. Logically speaking, equating a part with the whole or generalising O.P.(KAT) No.149/2015 & batch -9- relying on singular instances is a fallacy--a fallacy of Converse Accident1. That seems to be what the impugned order is.
20. Closely observed, the Tribunal holds that members of the subordinate service whose duties are entirely clerical alone can be treated as Ministerial Officers. In this definition the word `officer', it proceeds to note, is intended to describe "those who are working in subordinate service like the applicants also. But, it is common ground that the applicants are not doing entirely clerical work. So, they are not ministerial officers".
21. First, at the risk of repetition, we note that officer and staff are not terminologically synonymous; every officer is a staff member, but not every staff member an officer. True, the definition demands that, from the ranks of ministerial staff, those who discharge clerical functions should alone be treated as ministerial officers. But it has not compelled every staff member to discharge clerical functions even if he were not to be classified as a ministerial officer. Thus, the definitional conflation has lead to the decisional confusion. Succinctly stated, to be 1 To move from a single case, or a very few cases, to a large-scale generalization about all or most cases, is fallacious reasoning, but it is common and often tempting. See an Introduction to Logic, Irving M Copi, et al., P.137, Pearson 14th Ed.
O.P.(KAT) No.149/2015 & batch -10- a ministerial officer, an employee need to be discharging clerical duties; but to be a ministerial staff member, he need not. What is Ministerial?
22. Black's Law Dictionary defines ministerial, an adjective, thus:
Of or relating to an act that involves obedience to instructions or laws instead of discretion, judgment, or skill. It gives a quotidian example:
"The court clerk's ministerial duties include recording judgments on the docket". Ministerial act, the lexicon further defines, is an "act performed without the independent exercise of discretion or judgment. If the act is mandatory, it is also termed a ministerial duty."
23. Semantically ministerial is the adjective for the noun minister. They have, therefore, a common root, etymologically speaking. John Ayto's Word Origins2 traces the root of this expression:
A minister is a person of `lower' status, a `servant'. The word goes back via Old French ministre to Latin minister `servant, attendant', which was derived from minus `less'. It retained this meaning when it arrived in English, and indeed it still survives in the verb minister. But already by the Middle Ages a specialized application to a `church functionary' had developed, and in the 16th century this hardened into the present-day `clergyman'. The political sense of the word developed in the 17th century, from the notion of a `servant' of the crown.
Latin ministerium `service' is the source of English ministry and 2 2nd Ed., A&C Balck, London, P.334 O.P.(KAT) No.149/2015 & batch -11- minstrel. . . And etymologically, minister is the antonym of master, whose Latin ancestor was based on magis `more'.
24. From the above semantic analysis of the term ministerial, we can affirm the view that ministerial has nothing to do with clerical. True, for an employee to be called a ministerial officer his discharging clerical functions is indispensable. But, for an employee to be called a ministerial staff member, there is no such compelling necessity, as observed earlier. This mistaken notion is evident from the Tribunal's observations in the impugned order: "Of course, if there is any member of the last grade service, whose duties are entirely clerical, then he may have a claim in the light of the definition of `ministerial officer'. The nomenclature of the officer is not decisive."
25. Again, the concept of ministerial officer is employed to determine the rights of the ministerial staff--resulting in an error of conflation.
The Departmental Developments:
26. At the earliest, G.O. (MS) No.154/61/Home, dated 24.3.1961, laid down the qualifications and conditions of service of the direct recruitment to the post of Sub Inspectors. Later, through G.O. O.P.(KAT) No.149/2015 & batch -12- (MS) No.55/66/Home, dated 11.2.1966, Government ordered that all graduates employed in the Police Department, such as Clerks, Special Branch Assistants, Head Constables, Police Constables, and officers of "corresponding rank", within the age of 30 years as on 1st day of July the year in which application are invited, will be eligible to apply for the post of Sub Inspector of Police. Having felt that the modified eligibility criterion is still constricted, the "ministerial staff" of the Police Department and the N.G.O Union have represented to Government that the chances of the ministerial staff of the department for promotion may be "widened". Government considered the proposal, consulted other stake holders--such as Inspector General of Police and Public Service Commission--and issued G.O. (MS) No.358/68/Home, dated 12.11.1968. The GO reads, among other things, as follows:
(i) 10% of the vacancies of Sub-Inspectors set apart for direct recruitment will be reserved for such members of the ministerial stall of the Police Department who possess the proscribed qualifications for the subject to a minimum of one where the number of vacancies in there or more.
(ii) If sufficient number of suitable candidates from the ministerial staff are not available the deficiency will be made good by selection form the open market.
O.P.(KAT) No.149/2015 & batch -13-
27. True, G.O. (MS) No.55/66/Home, dated 11.2.1966, did specify, illustratively though, the ranks of employees among the ministerial staff who were eligible. It further did specify, expanding the illustrative category, by employing the expression "officers of corresponding rank." But we cannot forget that "the ministerial staff"
of the Police Department represented to Government that the chances of "the ministerial staff" of the department for promotion may be "widened." Then followed the GO (MS) No.358/68.
28. Plainly reading the GO (MS) No.358/68, we gather that the Government had initially provided the promotional avenues by way of direct recruitment to a restricted section of the "ministerial staff." Dissatisfied, the ministerial staff persuaded--successfully, at that--the Government to widen the scope of recruitment, which it did. Tribunal's Alternative View:
29. As noted above, the Tribunal did refer to Ext.P10, the Government has permitted from the ranks of ministerial staff only those holding positions as "Clerks, Special Branch Assistants, Head Constables and Police Constables and Officers of corresponding rank.'' O.P.(KAT) No.149/2015 & batch -14- So the members of the last grade, it concludes, cannot be treated as "officers of the correspondent rank."
30. Regrettably, the Tribunal has taken the first part of the GO., which deals with the justification for its modified version. That part of the GO., relied on by the Tribunal, only refers to the previous measures taken, and directions given, by the Government. It has in fact mentioned that earlier (in the GO second cited) the Government permitted "Clerks, Special Branch Assistants, Head Constables and Police Constables and Officers of corresponding rank,'' to apply for the post. It has, in that context, referred to the representations given by the ministerial staff to "widen" the GOs scope. It acceded.
31. In G.O. (MS) No.358/68/Home, dated 12.11.1968 (Ext.P10), the Government has mandated that 10% vacancies of Sub-Inspectors set apart for direct recruitment will be reserved "for such members of the ministerial stall of the Police Department who possess the proscribed qualifications." It has no reference to any specific category of employees or of corresponding rank among the ministerial staff.
32. So we hold that the G.O. (MS) No.358/68/Home, dated O.P.(KAT) No.149/2015 & batch -15- 12.11.1968, admits of no ambiguity. It is clear.
Is Last-Grade Service distinct and different from Ministerial Staff?
33. The Government classifies its employment services usually into two: (1) State Services, and (2) Subordinate Services. The State Services comprise generally Class I and Class II Officers (generally known as Gazetted). And the Subordinate Services comprise Class III and Class IV Officers (general known as Non-Gazetted). Of course, both the State and the Subordinate Services have been classified according to the nature of duty discharged by each category.
34. We may further note that each service, in turn, has its own organizational structure; it has its employees divided into, usually, four grades: Grade-I, Grade-II, Grade-III, and Grade-IV. This classification, plainly stated, is pay-based. Rule 16A of Kerala Service Rules, Part I, defines Last Grade service:
Last Grade Service.- means service in any post included in the Kerala Last Grade Service constituted by the Special Rules for the Kerala Last Grade Service, published under G.O.(P) 82/Public (Rules) Department, dated the 8th March 1966, in Part I of the Kerala Gazette No.14, dated the 5th April 1966, as amended from time to time, and includes all O.P.(KAT) No.149/2015 & batch -16- other posts carrying the lowest scale of pay in the schedule of pay scales in force from time to time and service in any post declared by the Government to be a post in the Last Grade Service.
35. As we have already observed, "Ministerial Service" as such has not been defined, save "Ministerial Officer". Going by the lexical exposition, the entire subordinate service can be termed as ministerial service, and all those employees Ministerial Staff, some of whom may be ministerial officers. It is, in our view, not a word of art having any specific legal connotation. It is a generic term employed to refer to the public servants who exercise no element of discretion but do the bidding of the superior officers, of course, subject to statutory limitations.
36. Indeed, we reckon that any effort to have the Last Grade Service excluded from the Ministerial Service or Staff, generic as its reference may be, is tantamount to missing the forest for the trees. Are the Office Attendants Departmentally Treated As Ministerial Staff?
37. Granted that "it is emphatically the province and duty of the judicial department to say what the law is", even the executive O.P.(KAT) No.149/2015 & batch -17- construction, consistent and continual, deserves deference. Annexure A7 is the "Report of the Work Study Conducted in the Vigilance & Anti- Corruption Bureau". At page 86 of the report is the consolidated position of the posts, which include attender and office attendant, too. In Annexure A8--GO (Ms) No.106/2012/Home, dated 13.04.2012--the Government, among other things, deals with the additional requirement of ministerial staff: It mentions both attender and peon as part of the ministerial staff. Annexure A9 identity card given to the employee, too, bears the description "Ministerial Staff". Annexure A7 is the extract of Kerala's Tenth Pay-Revision Commission Report, 2014. Among the ministerial staff are shown the attender and office attendant.
38. Sherry invoked the Right to Information Act and obtained Ext.P9 answer from the Vigilance Department. To a question whether the office attendant is a ministerial staff, the State Public Information Officer has answered affirmatively. Finally, we may refer to Exhibit P4, a copy of the Hand Book on Police Department, Tamil Nadu. It seems to have been placed on record for a persuasive purpose: Ministerial O.P.(KAT) No.149/2015 & batch -18- Staff in the Police Department of Tamil Nadu includes sweepers, not to speak of office attendants.
39. We may refer to the Tribunal's observation that if any member of the last grade service is discharging duties entirely clerical, she may have a claim given the definition of `ministerial officer'. The nomenclature of the office, according to the Tribunal, is not decisive. Annexure A11 officer order issued by the Superintendent of Police reveals that the petitioner is "instructed to assist G Section for Despatch work." Sherry passes muster on this count as well if we reckon the nature of duty, the designation notwithstanding. Arbitrary Exclusion:
40. First, it is a direct recruitment. The in-service candidates must possess the educational qualification and experience, the experience which has nothing to do with the post notified. As the Department gives 10% quota to the in-service candidates, two years' experience seems to be a threshold mark to narrow the range of available departmental candidates. The respondents contend that only Clerks, Special Branch Assistants, Head Constables, Police Constables, O.P.(KAT) No.149/2015 & batch -19- and officers of corresponding rank are eligible.
41. The employees said to be eligible have nothing in common. Constables may have a justifiable claim, to the exclusion of others, for they discharge similar functions at a lower level, though. But clerks and special branch assistants discharge no police functions. Discharging clerical functions, the respondents would have us believe, clinches the issue. But even clerical functions can hardly be treated as providing any experience to a would-be police officer. That accepted, the office attendant's exclusion invidiously discriminates and threatens to make the very notification fall foul of the constitutional mandate--of discrimination and of arbitrariness. If one were to endorse the respondents' view, then the notification or the related recruitment provision needs to be read down to save it from the constitutional vice. We, however, opine that such a contingency has not arisen here.
42. Before concluding the issue, we observe, out of abundant caution, whatever we have observed on Sherry's claim equally applies to Jancy Mathew and Dini A.P., the petitioners in the other Original Petitions, too--all three women office-attendants stand to succeed. O.P.(KAT) No.149/2015 & batch -20- Conclusion:
43. Viewed from any angle, the respondent's decision to exclude an office attendant or a peon from the ranks of Ministerial Staff smacks of illegality and arbitrariness. We, therefore, hold that the Tribunal's Order rejecting the employees' claim cannot be sustained. We accordingly set aside the Order, dated 06.05.2015 in OA No.739 of 2015 and the Order, dated 08.04.2015 in OA No.585 of 2015. Further, we declare that the post of office attendant or peon held by the petitioners is a ministerial post. So, we direct the second respondent to consider the candidature of the petitioners in OP (KAT) Nos.149, 168 & 169 of 2015, subject to other, if any, eligibility criteria.
P.R. RAMACHANDRA MENON, JUDGE.
DAMA SESHADRI NAIDU, JUDGE.
rv O.P.(KAT) No.149/2015 & batch -21-