Kerala High Court
The Kerala Water Authority vs K.Sulaiman on 7 November, 2013
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE THE CHIEF JUSTICE MR.MOHAN M.SHANTANAGOUDAR
&
THE HONOURABLE MR. JUSTICE SATHISH NINAN
TUESDAY, THE 13TH DAY OF DECEMBER 2016/22ND AGRAHAYANA, 1938
WA.NO. 1922 OF 2016 () IN WP(C).30458/2012
--------------------------------------------
AGAINST THE ORDER/JUDGMENT IN WP(C) 30458/2012
OF HIGH COURT OF KERALA DATED 07-11-2013
APPELLANT(S)/2ND RESPONDENT:
---------------------------
THE KERALA WATER AUTHORITY
REPRESENTED BY THE MANAGING DIRECTOR,
JALABHAVAN, VELLAYAMBALAM,
THIRUVANANTHAPURAM-695033.
BY ADVS.SRI.JOSEPH JOHN, SC, KERALA WATER AUTHOR
SMT.SUMATHY DANDAPANI (SR.)
RESPONDENT(S)/PETITIONERS/IST RESPONDENT:
-----------------------------------------
1. K.SULAIMAN
HEAD SURVEYOR, KERALA WATER AUTHORITY,
IPD SUB DIVISION, OBSERVATORY HILLS,
THIRUVANANTHAPURAM-33, NOW RESIDING AT ENRA-219,
ABBAS NAGAR, PUTHENPALAM, VALLAKKADAVU P.O.,
THIRUVANANTHAPURAM-695008.
2. S.KRISHNAPRASAD
HEAD SURVEYOR, KERALA WATER AUTHORITY,
WW EAST SUB DIVISION, THIRUVANANTHAPURAM
RESIDING AT "KRISHNA PRIYA", ANAMADA P.O.,
PANNAKKAMUGAL, THIRUVANANTHAPURAM-690521.
3. R.IMMANUAL
HEAD SURVEYOR, KERALA WATER AUTHORITY, IPD
SECTION, KOLLAM, RESIDING AT KUKKUDALE,
PALLISSERICKAL P.O., SASTHAMKOTTA, KOLLAM-695010.
4. STATE OF KERALA
REPRESENTED BY THE PRINCIPAL SECRETARY TO
GOVERNMENT, WATER RESOURCES DEPARTMENT AND
CHAIRMAN, KERALA WATER AUTHORITY, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM-695001.
R1-3 BY ADV. SRI.MATHAI M PAIKADAY(SR.)
R1-R3 BY ADV. SRI.JOSE THOMAS (PALA)
R BY SENIOR GOVERNMENT PLEADER SHRI M.A. ASIF
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON
20.10.2016, THE COURT ON 13.12.2016 DELIVERED THE FOLLOWING:
MOHAN M.SHANTANAGOUDAR, C.J.
&
SATHISH NINAN, J.
===================================
W.A. No.1922 of 2016
===================================
Dated this the 13th day of December, 2016
J U D G M E N T
SATHISH NINAN, J.
The appeal is filed against the judgment dated 07.11.2013 in W.P(C) No.30458 of 2012. The 2nd respondent in the writ petition, the Kerala Water Authority, is the appellant herein. Respondents 1 to 3 herein, who are the petitioners in the writ petition, filed the aforesaid writ petition for the following reliefs:
"(i) Issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents to grant the petitioners promotion as Assistant Executive Engineers in the 2% quota earmarked for Head Surveyors under the relevant Government Orders.
(ii) Issue a writ of mandamus or any other appropriate writ, or direction commanding the respondents to promote the petitioners as Head Surveyors from the date on W.A. No.1922 of 2016 -: 2 :- which Orders were issued by the Government in this regard.
(iii) Issue a Declaration that the denial of 2% quota earmarked for Head Surveyors for promotion to Assistant Executive Engineers is illegal and arbitrary.
(iv) Issue any other writ order or direction that this Hon'ble Court deems fit and proper in the facts and circumstances of the case."
2. Writ petitioners are the senior-most Head Surveyors in their cadre. They claimed promotion to the post of Assistant Executive Engineers on the basis of Exhibit P1, Government Order dated 19.08.1999. As per clause 29(v) of Ext.P1, 2% of the total posts of Assistant Executive Engineers is to be earmarked for promotion from Head Surveyors having the requisite qualification. According to the writ petitioners, they possess the requisite qualification and hence are entitled to be promoted to the 2% posts reserved for them in terms of the clause referred to above. The Kerala Water Authority, who is the 2nd respondent in the Writ W.A. No.1922 of 2016 -: 3 :- Petition and the appellant in the appeal, is denying the writ petitioners' claim and hence the Writ Petition was filed seeking the reliefs aforementioned.
3. On behalf of the appellant-Water Authority, a counter affidavit dated 04.07.2013 had been filed. The crux of the contentions of the appellant is that, claim of the writ petitioners is not sustainable for the reason that the earmarking of 2% quota for promotion from the post of Head Surveyor has not been incorporated in the Special Rules governing the category of persons concerned, and that without incorporating the same in the Special Rules, writ petitioners are not entitled to claim promotion.
4. Heard Smt.Sumathi Dandapani, learned Senior Counsel for the appellant and Shri Mathai M.Paikadey learned Senior Counsel for the respondents. W.A. No.1922 of 2016 -: 4 :-
5. According to the learned Senior Counsel for the appellant, the finding of the learned single Judge that Ext.P1 has been issued under the proviso to Article 309 of the Constitution of India, is incorrect. According to her, there is nothing in Ext.P1 to indicate that it has been issued in exercise of the powers under Article 309 of the Constitution. According to the appellant, Ext.P2 which has been made in exercise of the powers conferred under Section 64(2a) of the Kerala Water Supply and Sewerage Act, 1986 (for short, the "the Act") read with Sec.8(3) thereof, are only draft rules which are yet to be finalised and therefore, rights cannot flow there-from. The learned senior counsel also contended that Government Orders cannot operate where there in existence a statute governing the field.
W.A. No.1922 of 2016 -: 5 :-
6. On the other hand, learned Senior Counsel appearing for the respondents would contend that Ext.P1 is issued in the name of the Governor and it relates to the recruitment and conditions of service of the employees in the Kerala Water Authority, and till appropriate Rules are formulated by the Legislature in tune with the contents of Ext.P1, Ext.P1 operates the field. According to the learned Senior Counsel, by virtue of Articles 166 and 309 of the Constitution, Ext.P1 can only be Rules framed in terms of Article 309 of the Constitution. Exhibit.P1 Government Order has been issued in exercise of the powers under Article 309 of the Constitution of India, and therefore are rules governing the field. As per Section 8 of the Kerala Water Supply and Sewerage Act, 1986, payment and service conditions of the Officers and employees of the appellant shall be governed by the Rules made by the Government from W.A. No.1922 of 2016 -: 6 :- time to time. Section 64 of the Act provides that the rule making power vests exclusively with the Government. As per Article 166 of the Constitution of India, conduct of business of the Government of a State shall be expressed to be taken in the name of the Governor. By virtue of Articles 166 and 309 of the Constitution, Ext.P1 can only be the Rules framed in terms of Article 309 of the Constitution, is the contention.
7. The main issue that arises for consideration is whether Ext.P1 is a rule formulated under Article 309 of the Constitution or is it a mere executive order. It is not in dispute that Ext.P1 order on which the respondents rely upon to claim promotion to the post of Assistant Executive Engineer from the post of Head Surveyor is an order passed by the State Government in the name of the Governor.
W.A. No.1922 of 2016 -: 7 :-
8. At this stage, it is to be noted that Ext.P1 Government Order is issued under orders of the Governor. The concluding portion of Ext.P1 is to the following effect:
"The Authority will evolve a system to ensure that all the orders relating to revision of pay and other issues are fully implemented within a reasonable time limit.
BY order of the Governor, Sd/-
K.S.Annamma, Additional Secretary to Government, Irrigation (Water Supply Department)"
Learned Senior Counsel appearing for the writ petitioners relied on the decision reported in Narmada Bachao Andolan v. State of Madhya Preadesh ([2011] 12 SCC 333) to buttress the contention that Ext.P1 is deemed to be the action of the Governor in the instant case and is a rule in itself in terms of the proviso to Article 309 of the Constitution of India. In paragraph 27 of the judgment the Apex Court has observed as follows:
W.A. No.1922 of 2016 -: 8 :-
"27. The decision of any Minister or office under the Rules of Business made under Articles 77(3) and 166(3) of the Constitution is the decision of the President or the Governor respectively and these articles do not provide "delegation". That is to say, that decisions made and actions taken by the Minister or officer under the Rules of Business cannot be treated as exercise of delegated power in real sense, but are deemed to be the actions of the President or Governor, as the case may be, that are taken or done by them on the aid and advice of the Council of Ministers."
Learned Senior Counsel further referred to the decision reported in State of Bihar v. Bihar Rajya M.S.E.S.K.K. Mahasangh ([2005] 9 SCC 129) to contend that in terms of Article 166 of the Constitution of India, the State cannot resile from Ext.P1. The Apex Court in paragraph 64 has stated thus:
"64. So far as the order dated 18.12.1989 is concerned, the State being the author of that decision, merely because it is formally not expressed in the name of the Governor in terms of Article 166 of the Constitution, the State itself cannot be allowed to resile or go back on that decision. Mere change of the elected Government does not justify dishonouring the decisions of previous elected Government. If at all the two decisions contained in the orders dated 1.2.1988 and 18.12.1989 were not acceptable W.A. No.1922 of 2016 -: 9 :- to the newly elected Government, it was open to it to withdraw or rescind the same formally."
Here, as is evident from Ext.P1 itself, the relevant portion of which is extracted supra, the same is issued in the name of the Governor. Learned Senior Counsel for the writ petitioners further drew our attention to paragraph 28 of the judgment of the Apex Court in Public Service Commission, Uttaranchal v. Jagadish Chandra Singh Bora ([2014] 8 SCC 644) to contend that that executive orders cannot supplant the Rules framed under the proviso to Article 309 of the Constitution of India but can only supplement the same.
9. On the other hand, learned Senior Counsel appearing on behalf of the appellant placed reliance on the decision reported in B.N. Nagarajan v. State of Mysore (AIR 1966 SC 1942) to contend that Exhibit.P1 cannot have the effect of Rules framed in terms of the proviso to Article 309 of the W.A. No.1922 of 2016 -: 10 :- Constitution of India. Specific reference was made to paragraphs 3 and 5 of the said judgment in support of the above contention. It was contended that in cases where there exists a statutory rule governing the field, an executive order under Article 162 of the Constitution of India cannot abrogate the statutory rule. We are in respectful agreement with the submission of the learned Senior Advocate that when there exists a statutory rule, executive must abide by that rule and it cannot in exercise of the power under Article 162 of the Constitution of India make executive orders governing the same, and even if it is so made, it cannot operate against the rule. However, the situation would be different in the case of rules framed under Article 309 of the Constitution of India. In B.N. Nagarajan v. State of Mysore (supra) as noted by the Apex Court, the rules relied on W.A. No.1922 of 2016 -: 11 :- therein were dealing with the functions of the Mysore Public Service Commission and were not laying down rules regarding recruitment to services or posts. Therefore, the same did not fall within the scope of Article 309 of the Constitution of India. Article 309 comes into play in regard to the recruitment and conditions of service of persons serving Union or State. Learned Senior Counsel appearing for the appellant further drew our attention to Krishnankutty Menon v. State of Kerala (1967 KLT 817) to contend that since there already exists Special Rules governing the category relating to Head Surveyors and Assistant Executive Engineers, conditions of service of such employees cannot be regulated by executive orders. In A.K.Bhatnagar and Others v. Union of India and Others (1991(1) SCC
544), the Apex Court held that the Union and State Governments once they frame Rules, their action in W.A. No.1922 of 2016 -: 12 :- respect of matters referred by Rules should be regulated by the rules. The Rules framed in exercise of powers conferred under the proviso to Article 309 of the Constitution are solemn Rules having binding effect.
10. While striving to arrive at the conclusion as to whether Exhibit P1 is a rule made under the proviso to Article 309 or is merely an executive order, mainly three Articles of the Constitution of India are relevant, viz., Articles 162, 166 and 309. They are:
"162. Extent of executive power of State.-Subject to the provisions of this Constitution, the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws:
Provided that in any matter with respect to which the Legislature of a State and Parliament have power to make laws, the executive power of the State shall be subject to, and limited by, the executive power expressly conferred by this Constitution or by any law made by Parliament upon the Union or authorities thereof".
W.A. No.1922 of 2016 -: 13 :-
166. Conduct of business of the Government of a State- (1) All executive action of the Government of a State shall be expressed to be taken in the name of the Governor.
(2) Orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor.
(3) The Governor shall make rules for the more convenient transaction of the business of the Government of the State, and for the allocation among Ministers of the said business in so far as it is not business with respect to which the Governor is by or under this Constitution required to act in his discretion.
"309. Recruitment and conditions of service of persons serving the Union or a State.-Subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State:
Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment, and the W.A. No.1922 of 2016 -: 14 :- conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this Article, and any rules so made shall have effect subject to the provisions of any such Act."
Article 154 of the Constitution of India states that the executive power of the State shall be vested in the Governor and shall be exercised by him either directly or through officers subordinate to him in accordance with the Constitution. Article 162 of the Constitution gives power to the Executive to issue Orders in respect of which the Legislature has power to make laws. It is circumscribed by the restrictions imposed by the proviso thereto which may not be very relevant for the instant case. Article 166 of the Constitution deals with the conduct of business of the Government of a State. As per Article 166(1), all executive actions of the Government are to be in the name of the Governor. Under Article 166(3) power is given to the Governor W.A. No.1922 of 2016 -: 15 :- to make rules for the convenient transaction of the business of the Government. Article 166 of the Constitution thus confers power on the Governor to make rules for the more convenient transaction of the business of the State and for the allocation among its Ministers of the said business. All matters excepting those in which the Governor is required to act in exercise of his individual discretion, have to be allocated to some Ministers on the advice of the Chief Minister. Apart from allocating the business amongst Ministers, the Governor can also make rules on the advice of the Council of Ministers for more convenient transaction of business. The rules for conduct of business under Article 166 of the Constitution have been framed for the ease and convenience of the working of the departments of the State Government. The Governor, in exercise of his powers under Article W.A. No.1922 of 2016 -: 16 :- 166(3) of the Constitution, may allocate all his functions to different Ministers by framing Rules of Business except those in which the Governor is required by the Constitution to exercise his own discretion. The expression "business of the Government of the State" in Article 166(3) of the Constitution comprises functions which the Governor is to exercise with the aid and advice of the Council of Ministers, including those which he is empowered to exercise on his subjective satisfaction and including statutory functions of the State Government. In the case of Godavari Shamrao Paruleka v. State of Maharashtra [AIR 1964 SC 1128), the Apex Court has held that even the functions and duties which are vested in a State Government by a statute may be allocated to Ministers by the Rules of Business framed under Article 166(3) of the Constitution.
W.A. No.1922 of 2016 -: 17 :-
11. Under Article 309 of the Constitution, appropriate Legislature regulates the recruitment and conditions of service relating to posts of public services. Under the proviso to Article 309 of the Constitution, in the absence of provision in that behalf, President or the Governor in relation to the Union or State as it may be, make rules regarding the same. Here, it may be relevant to dwell into the law as laid down by the Apex Court in interpreting these three provisions.
12. In State of Karnataka v, KSGD Canteen Employees Welfare Assn. ([2006] 1 SCC 567) it was held by the Apex Court that an executive order made under Article 162 of the Constitution cannot prevail over a statute or statutory rules framed under the proviso to Article 309 of the Constitution. The said view is reiterated and referred to in M.P.Housing Board v. Manoj Shrivastava ([2006] 2 SCC W.A. No.1922 of 2016 -: 18 :-
702). In State of Maharashtra and Another v. Chandrakant Anant Kulkarni and Others ([1981] 4 SCC
130) while considering the question whether a change was effected in the recruitment rules, by an executive order and if so whether such change in the conditions of service could be brought about without framing a rule under the proviso to Article 309 of the Constitution, the Apex Court has categorically held that there cannot be any dispute to the proposition that a rule framed under the proviso to Article 309 of the Constitution cannot be modified by an executive order. In Ramesh Prasad Singh v. State of Bihar and Others ([1978] 1 SCC 37), the Apex Court has observed that the process of rule making is a protracting and complicating one involving manifold formalities. In the exigencies of administration, immediate creation of service or posts may be necessitated. In such a situation, the W.A. No.1922 of 2016 -: 19 :- authorities under the general power of administration would have to make appointments by executive orders. In the absence of Rules, self-same executive orders creating the service or post could also provide for qualifications of the post. The Apex Court was dilating on the issue of power and scope of executive orders, in the absence of rules governing the field. In Ex.Capt. K.Balasubramanain and Others v. State of Tamil Nadu and Another ([1991] 2 SCC 708) the Apex Court has held that where there exists rules made under the proviso to Article 309 of the Constitution it cannot be modified by an executive order. The Apex Court in the said judgment referred to Sant Ram Sharma v. State of Rajasthan (AIR 1967 SC 1910), Union of India v. H.R. Patankar (1984 Suppl. SCC 359) and State of Gujrat v. Akhilesh C.Bhargav ([1987] 4 SCC
482) and held that although Government cannot amend W.A. No.1922 of 2016 -: 20 :- the statutory rules by administrative instructions, but if the rules are silent on any particular point, the Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed. Therefore, in cases where the rules are silent, then the gaps can be filled in by executive orders. It was further held that where there are rules governing the field, modification of the scheme set there-under could be done only by suitably amending the said rules and not by issuing administrative instructions. In B.N.Nagarajan v. State of Mysore (supra), it was held that it is not obligatory to make rules of recruitment before a service can be constituted or a post created or filled. The State Government has executive powers (to make laws) in relation to all matters with respect of which the Legislature of the State has power. Referring to Ram Jawaya Kapur v. W.A. No.1922 of 2016 -: 21 :- State of Punjab (AIR 1985 SC 549) it was held that it is well settled that it not necessary that there must be a law already in existence before the executive is enabled to function. There is nothing in Article 309 of the Constitution abridging the power of the executive to act under Article 309 of the Constitution. However, if there is a statutory act or rule governing the field, the executive must act in terms thereof and cannot in exercise of the powers under Article 162 of the Constitution act contrary to the same. As held by the Apex Court in State of U.P. and Others v. Z.U. Ansari (MANU/SC/1165/2016) powers under Articles 166(3) and 309 of the Constitution operate in separate fields. It has been further held that executive power is generally described as residue which does not fall within the legislative or judicial power. But executive power may also partake legislative or W.A. No.1922 of 2016 -: 22 :- judicial actions. In Union of India and Others v. Majji Jangamayya and Others ([1977] 1 SCC 606), the Apex Court has reiterated that in the absence of statutory rules, an executive order could be made. To the same effect is the observations made by the Apex Court in Union of India v. Madras Telephone SC & ST Social Welfare Association ([2000] 9 SCC 71).
13. There cannot be any dispute for the proposition that the rules framed under proviso to Article 309 cannot be modified by an executive order. In the matter on hand, it is not in dispute that the special rules, which is now being followed, is framed under the proviso to Article 309 of the Constitution. The following rules are framed by the State Government:
"(a) Special Rules for Kerala Public Health Engineering for State Service
(b) Special Rules for Kerala Public Health Engineering Subordinate service."
W.A. No.1922 of 2016 -: 23 :-
It is not in dispute that the service conditions of the employees working with Kerala Water Authority are governed by the aforementioned special rules. Until the State Legislature passes a law on a particular subject, it shall be competent for the Governor of the State to make rules regulating the recruitment and the conditions of service of persons appointed to the services of the State. The Governor thus steps in when the Legislature does not act. The power exercised by the Governor under the proviso is thus a power which the Legislature is competent to exercise but has in fact not yet exercised. It partakes the characteristics of the Legislative, not executive power. It is legislative power. That the Governor possesses legislative power under our Constitution is incontrovertible and therefore, there is nothing unique about the Governor's power under the proviso to Article 309 W.A. No.1922 of 2016 -: 24 :- being in the nature of legislative power.
14. In the matter on hand, the question is as to whether Ext.P1 order passed by the State Government, which is completely relied upon by the respondents, can be said to be an order covered under the proviso to Article 309 of the Constitution or not.
15. The respondents herein cannot and will not be promoted to the post of Assistant Engineers or Assistant Executive Engineers from the post of Head Surveyors if provisions of the aforementioned special rules are made applicable. It is also not in dispute that those special rules are not amended as on this date. However, proposals were made in the years 2006 and 2012 and draft notifications to amend the rules were also framed as per Exts.P2 and P14. Such draft rules are not approved by the State Government as on this date. However, the respondents W.A. No.1922 of 2016 -: 25 :- placed reliance on Ext.P1 Government Order to claim the benefit of promotion to the post of Assistant Executive Engineer from the post of Head Surveyor. The respondents herein contend that Ext.P1 order dated 19.08.1999 issued by the Government of Kerala is covered by the provisions of Article 309 of the Constitution of India. Such contention cannot be accepted under the facts and circumstances of this case.
16. Law is so well settled that the orders made by the State Government cannot override the statutory rules made by the legislature. Indisputably, in this case, as mentioned supra, promotion to the post of Assistant Executive Engineer is governed by the special rules. They are not amended. Unless the rules are amended as required under law, the Government order cannot supplement the special rules. We have already made W.A. No.1922 of 2016 -: 26 :- clear that the special rules are yet to be amended by the State Government. Thus, unless those rules are amended, the special rules as it exists govern the field.
17. In the case of State of Haryana v. Shamsher Jang Bahadur ([1972] 2 SCC 188), the question came up before the Apex Court as to whether the Government can, by administrative instructions, add to the conditions of service relating to the promotion of a Government servant prescribed under Article 309 of the Constitution. The Apex Court, after considering various judgments on the point, concluded that the instructions issued by the Government undoubtedly affect the promotion of concerned officials and therefore, they relate to the conditions of service. The instructions add to the qualifications already prescribed by the rules framed under Article 309. By adding, the Government W.A. No.1922 of 2016 -: 27 :- has really altered the existing conditions of service. The Government is not competent to alter the rules framed under Article 309 by means of administrative instructions.
18. The Apex Court, in the case of Lalit Mohan Deb v. Union of India [(1973) 3 SCC 862], has ruled that in the absence of statutory rules regulating promotion to selection posts, the Government is competent to issue administrative instructions as long as those instructions are not inconsistent with the rules already framed.
19. It is no doubt true that as mentioned supra, Ext.P1 order is issued by the State Government in exercise of its executive power under the Constitution of India. In our considered opinion, Ext.P1 order cannot be treated as one covered by the provisions of Article 309 of the Constitution of India. Indisputably, the special W.A. No.1922 of 2016 -: 28 :- rules will govern the field in so far as it relates to the case on hand. The special rules are framed exercising the statutory power under Article 309 of the Constitution of India. It is no doubt true that Article 309 enables the Legislature to legislate in regard to recruitment and conditions of service of persons appointed to public service and posts in connection with the case of Union or the State.
"Recruitment" is a comprehensive term and includes any method provided for inducting a person in public service. Appointment, selection, promotion, deputation are all well known methods for recruitment. Until provision is made by an appropriate legislature, rules on these matters may be made by the executive as laid down in the proviso to Article 309. Once the power has been exercised by the appropriate legislature, the executive is excluded from exercising its rule making power. W.A. No.1922 of 2016 -: 29 :- However, it may continue to have the rule making power in areas which have not been covered by legislation.
20. Since, in this matter, the special rules are already framed which are governing the field, relating to the promotion to the post of Assistant Executive Engineer, it is not open for the State Government to issue an order as the one found as Ext.P1 to earmark certain posts for Head Surveyors. The only course open for the State Government is to amend the special rules which are framed under Article 309 of the Constitution of India. Ext.P1 order heavily relied upon by the respondents does not quote any provision. We hasten to add that we are not persuaded by the non-specifying of any of the provisions under which the Government has passed the order.
W.A. No.1922 of 2016 -: 30 :-
21. However, looking to Ext.P1, it is clear that the said order contains two portions. The first portion is relating to the scales of pay, service benefits of the employees of the Kerala Water Authority. The said order is passed by the State Government based on the report of the Pay Revision Committee for making recommendations on the revision of scales of pay, other service benefits, pension structure etc of the employees of KWA. Up to paragraph 28 of the said order, the revision of pay scales, service benefits and other related issues are dealt with. In paragraphs 29, 30 and 31, factors other than the revision of pay service etc are considered. Paragraph 29 reads thus:
29. In the case of implementing the following orders, the Authority will take steps to incorporate suitable modifications in the Kerala Water Authority Service Special Rules, if found necessary.
i. In modification to the existing promotion channels, the following promotion avenues will be opened to all categories of Last Grade Service employees, Turncock and Sewer cleaner, subject to their acquiring the required minimum prescribed W.A. No.1922 of 2016 -: 31 :- qualifications and successful completion of tests and training, if any, prescribed for the promotion post, wef 1.11.1998.
(a) xxxxx xxxxx
ii. xxxxx xxxxx
xxxxx xxxxx
v. 2% of the total posts of Assistant Executive Engineers will be earmarked for promotion from the Head Surveyors having the requisite minimum qualifications. In the absence of qualified hands, the post will be filed from the qualified Assistant Engineers.
vi. 50% of the total posts of Assistant Database Administrator will be filled by promotion from the lower categories having the minimum prescribed qualifications and having a minimum 10 years service of which at least one year in the computer section of the Authority, if such persons are available.
Vii. xxxxx xxxxx
xxxxx xxxxx
(emphasis supplied)
22. Relying upon clause (v) of paragraph 29, the respondents claim the benefit of 2% of total number of posts of Assistant Executive Engineers in their favour for being considered for promotion. It is no doubt true that clause (v) of rule 29 states that 2% of the total posts of Assistant Executive W.A. No.1922 of 2016 -: 32 :- Engineers will be earmarked for promotion from the Head Surveyors having requisite minimum qualification. It is also not in dispute that the respondents have got the requisite minimum qualification prescribed. But the opening sentence of section 29 clarifies that in the case of implementing the following orders, that is, the orders in paragraphs 29, 30 and 31, the authority will take steps to incorporate suitable modifications in the Kerala Water Authority Service Special Rules, if found necessary, which means that only if the authority takes steps to incorporate suitable modification in the service special rules as found in paragraph 29, the benefits arising under paragraphs 29 and 30 will be made applicable to the respondents. Admittedly, in the case on hand, no such modifications are incorporated in the Special Rules as on this date. Thus, in effect, paragraphs W.A. No.1922 of 2016 -: 33 :- 29 and 30 cannot be implemented as of now in so far as this case is concerned.
23. The special rules specifically provide for promotion to the post of Assistant Executive Engineer from the post of Assistant Engineers including Driller Engineer and Personal Assistant to Superintending Engineers. The Assistant Executive Engineers are governed by special rules for Kerala Public Health Engineering State Service. Such service consists of the following categories:
category 1 - Chief Engineer category 2 - Superintending Engineer (including Deputy Chief Engineer) Category 3 - Executive Engineers category 4 - Assistant Engineers, including Driller Engineer and Personal Assistant to Superintending Engineer. Whereas the Surveyors and Head surveyors are governed by different service special rules, i.e., "Special Rules for Kerala Public Health Engineering Subordinate Service". The subordinate service consists of 43 categories, i.e, from Junior Engineer to Boatman, including Surveyor W.A. No.1922 of 2016 -: 34 :- (which is category No.30). Hence, amendment to special rules is absolutely necessary.
24. Learned senior counsel for the respondents, however, drawing the attention of the Court to clause (vi) of Rule 29 relating to filling up of 50% of total number of posts of Assistant Database Administrator by promotion from lower categories, submits that the said clause has been implemented and that the same benefit can be provided to the respondents by implementing clause (v) also. Such contention also cannot be accepted in view of the fact that the special rules do not contain the provision for promotion to the post of Assistant Database Administrator from lower categories. In that regard, the Government rightly thought it fit to issue promotion based on Ext.P1 order. But in the case of Head Surveyors and Assistant Engineers, the special rules govern the field. The special rules specify as to how the promotional post of W.A. No.1922 of 2016 -: 35 :- Assistant Executive Engineer is to be filled up. Hence unless those rules are modified, Ext.P1 order cannot be made applicable to the writ petitioners. Even otherwise, the respondents who claim promotion to the post of Assistant Executive Engineer from the post of Head Surveyor have no legal right to occupy the said post in the absence of the rules. The special rules are not amended pursuant to Ext.P1 order in so far as it relates to reserving 2% of the posts of Assistant Executive Engineers in favour of the Head Surveyors.
25. As mentioned supra (at the cost of repetition), the portion of Ext.P1 order of the State Government consisting of paragraphs 29, 30 and 31 discloses that, that portion of the order comes into effect if the special recruitment rules are amended if need be. As mentioned supra, the amendment to the special rules is not yet made under W.A. No.1922 of 2016 -: 36 :- Article 309 of the Constitution of India. Even assuming that the entire order in Ext.P1, including paragraphs 29, 30 and 31 is stated to be an order or a scheme framed by the State, the same would not meet the requirement of law in as much as the executive order made under Article 162 of the Constitution cannot prevail over the statute or statutory rules framed under the proviso to Article 309 of the Constitution.
26. In the case of Ex.Capt.K.Balasubramanian v. State of Tamil Nadu [supra], the challenge was against the judgment of a Division Bench of Madras High Court, which by judgment dated July 22, 1976 had held that the provision with regard to fixation of seniority in the cadre of Commercial Tax Officers in which the petitioners were appointed is governed by Rule 35 of the General Rules which are contained in part II of the Tamil Nadu State and Subordinate W.A. No.1922 of 2016 -: 37 :- Service Rules made under proviso to Article 309 of the Constitution and under the said rule, seniority is to be fixed on the basis of date of appointment to the service. The High Court found that the said Rules had not been amended and in the absence of an amendment to the service rules, the orders regarding fixation of seniority contained in the subsequent executive orders of the Government were invalid and no rights could accrue to the petitioners on the basis of the said orders. The said decision of the Division Bench is upheld by the Apex Court, however, observing that the judgment would not prevent the State Government from amending the rules made under Article 309 of the Constitution.
27. In view of the aforementioned facts and circumstances and for the reasons assigned, the impugned judgment passed in W.P(C).30458 of 2012 is W.A. No.1922 of 2016 -: 38 :- liable to be set aside and the same stands set aside.
Writ Appeal is allowed. W.P.(C) No.30458 of 2012 will stand dismissed.
MOHAN M.SHANTANAGOUDAR, CHIEF JUSTICE.
SATHISH NINAN, JUDGE.
vsv