Dinesh Shankar N.T. Vs. State [Kerala High Court, 12-07-2016]



O.P.(KAT)No.364 of 2015

Dated this the 12th day of July, 2016












Ramachandra Menon, J.

Whether invocation of power of the Government under Rule 39 of Part II of the Kerala State and Subordinate Services Rules is to be done as a matter of course, without considering whether it is for a just and equitable reason as mandated in the very same Rule itself, forms the subject matter of consideration in this Original Petition. This gathers more momentum in the light of the fact that the person concerned to whom such benefit is given by the Government (the 4 th respondent) by invoking such Rule has already suffered three different judgments (before the Single Bench and Division Bench of this Court and also before the Supreme Court) who lost the battle through out; but still came to be accommodated by the Government, after dispensing with the basic requirement of sending for training for 2½ years.

2. The beneficiary (4 th respondent) was not even called for any interview by the PSC, because of non-satisfaction of the required qualification as notified by the PSC for selection in respect of the physical measurements. Interference declined by the Kerala Administrative Tribunal with regard to the challenge raised against the appointment given to the 4 th respondent in the above regard and declining the relief for the petitioner (the applicant) to have him appointed in the place of the 4 th respondent made him feel aggrieved and hence the Original Petition.

3. Heard Sri.Prasanth.S., the learned counsel appearing for the petitioner, Sri.P.C.Sasidharan, the learned Standing Counsel for the PSC, Sri.M.Mohammed Shafi, the learned Government Pleader appearing for the State and Mr.P.Deepak, the learned counsel who entered appearance on behalf of the 4 th respondent (stated as instructed by Sri.Babu Paul, the learned lawyer who has filed vakalath for the 4 th respondent).

4. Challenge is against Ext.P3 order passed by the Tribunal in O.A.No.393/2015, which was filed with the following prayers:-

i. to declare that the 4 th respondent is not entitled for appointment as Range Forest Officer under the FTR quota in violation of the Special Rules and by passing the Public Service Commission and there is no circumstance existing for invoking Rule 39 of the KS & SSR by the Government in favour of the 4 th respondent disregarding Annexure.A4 to A7 Orders/Judgments of the Hon’ble High Court and Hon’ble Supreme Court;

ii. to call for the records leading to Annexure.A16, A20, A21 and A25 and to set aside the same.

iii. to issue appropriate direction or order, directing the respondents 1 to 3 to appoint the applicant as Range Forest Officer replacing the 4 th respondent under the FTR quota with effect the date of appointment of the 4 th respondent as Range Forest Officer.

5. The sequence of events reveals that both the petitioner as well as the 4 th respondent were working as the Deputy Forest Rangers in the Forest Department. They were aspirants to the post of Forest Range Officer which is situated in the next higher level, in the hierarchy. The PSC invited applications from eligible hands and a notification was issued in the year 2005. Qualifications, both academic as well as the physical requirements, were clearly mentioned in the said notification. Both the petitioner and the 4 th respondent had applied for the post and after completion of the process of selection, the PSC published Annexure.A1 select list wherein the name of the petitioner was placed at Serial No.22. The 4 th respondent was never given a placement in the select list for the fact that, when the physical measurement was taken, his chest measurement was only ’82 cms.’, whereas the notification clearly insisted that the chest measurement should be ’84 cms.’ with further expansion of 5 cms. As a result of this, the 4 th respondent was not called for the interview and in turn did not get placement in Annexure.A1 select list.

6. As a matter of fact, for giving promotion to the post of Forest Range Officer, it was very much essential to have sent the eligible candidates for training; which was for a span of 2½ years. Originally, considering the available number of vacancies, 21 persons from Annexure.A1 list were sent for training and the next turn was that of the petitioner. The petitioner approached this Court by filing W.P.(C)No.8324/2006 seeking for a direction to send him for training in respect of the anticipated vacancy, but interference was declined and the Writ Petition was dismissed as per Annexure.A2 judgment dated 20.8.2010. The petitioner sought to challenge the same by filing W.A.No.65/2011, wherein also interference was declined and the appeal was dismissed as per Annexure.A3 on 5.1.2012. The rank list expired on 24.5.2006 and the proceedings came to rest for the time being. While so, the petitioner came to note that the person placed at Serial No.9 had not completed the training, which resulted in a vacancy; which slot was sought to be filled up by nominating the petitioner. It was accordingly, that a representation was preferred by him, which however was turned down stating that the rank list had already expired.

7. Coming to the case of the 4 th respondent as mentioned already, he was never given a placement in Annexure.A1 select list, having not even called for the interview, which was sought to be challenged by filing W.P.(C)No.5384/2010. The main contention raised was that the chest measurement was not correctly taken by PSC. It was accordingly that a direction was sought for to conduct a re-measurement by the PSC. Simultaneously, another contention was raised that, as per the relevant Rules/Norms, the requisite chest measurement was only to be ’79 cms’. The merit of the case was considered in detail and the challenge raised was repelled, dismissing the W.P.(C) No.7569/2006, as per Annexure.A4 judgment dated 14.2.2007. This was taken up in appeal by the 4 th respondent as per W.A.No.885/2007, wherein also interference was declined and the appeal came to be dismissed as per Annexure.A5. The 4 th respondent took a further chance by moving the Apex Court; but the SLP came to be dismissed as per Annexure.A6. Still further, the 4 th respondent moved the Apex Court by way of a ‘curative petition’, which also ended up in dismissal, as borne by Annexure.A7 dated 3.12.2009. The matter had become final accordingly. 8. It was in the meanwhile, that the 4 th respondent came across the amendment of the Entrance and Training Rules (revised) 2004, whereby the requisite chest measurement of ’84 cms’. came to be reduced to ’79 cms.’ with effect from 10.1.2006 (Annexure.R4(A)). It was pointed out that, though the written test was conducted pursuant to notification issued before the amendment, by the time the chest measurement was taken, the amendment had already come into existence and in the said circumstance, the Government was moved by way of Annexure.A8 representation seeking to invoke the power and procedure under Rule 39 of the Kerala State and Subordinate Services Rules and to promote the 4 th respondent to the post in question. On receipt of the said representation, the views of the PSC were called for; upon which the PSC reported in categorical terms as per Annexure.A12, that there was absolutely no merit and the same did not require any re-consideration being not a fit case where Rule 39 was to be invoked. Still, the Government proceeded further and passed Annexure.A16 Government Order dated 13.5.2013, invoking the power under Rule 39 of the Kerala State and Subordinate Services Rules and directed promotion to be given to the 4 th respondent. Subsequently, another order was passed by the Government on 23.8.2013 by way of Annexure.A20; invoking the power under Rule 39 of the Kerala State and Subordinate Services Rules again, and exempting the 4 th respondent from undergoing the mandatory training for being promoted as Forest Range Officer. Quite strangely, the reason was that he was having only a left over service of nearly 4½ years and if he was deputed for the mandatory training of 2½ years, no much service would be left out. Pursuant to Annexures.A16 and A20, the Principal Chief Conservator of Forest passed Annexure.A21 order dated 23.8.2013 granting the benefit to the 4 th respondent by way of promotion and dispensing with the mandatory training and such other formalities, which was to the chagrin of the petitioner who approached the Tribunal by filing O.A.No.393/2015, referring to the course and events.

9. After hearing both the sides, the Tribunal observed (particularly in paragraph 4) that two judgments were already standing against the applicant and as such there was absolutely no merit to call for interference. The concerned vacancy was not available during the subsistence of the rank list and as such, the applicant was not entitled to get any relief. It was further observed that, even if the appointment of the 4 th respondent invoking the power under Rule 39 of the Kerala State and Subordinate Services Rules was wrong, it could not be a ground for the applicant to contend that he should have been appointed against the post in question, in preference to the 4 th respondent. It was accordingly, that interference was declined and the O.A. was dismissed; which in turn is under challenge in this O.P.

10. During the course of hearing, the learned counsel for the petitioner points out that the orders passed by the Government are per se wrong and illegal in all respects. Though power is vested with the Government to meet the situation by virtue of Rule 39 of the Kerala State and Subordinate Services Rules (which of course contains a ‘non-obstante clause’), it is a matter of exception to the General Rule and that the power has to be exercised sparingly. Reliance is sought to be placed on the verdicts passed by two Division Bench of this Court as per decision reported in

Koyit Joseph & others Vs. Subash George and others, ILR 2006 (3) Ker.162

(para.23)] and in

Vijayakumar v. State of Kerala, 2014 (1) KLT 186

(para.3)], besides placing reliance on the verdict passed by the Supreme Court in

Ashok Kumar Uppal & others Vs. State of J&K and others, (1998) 4 SCC 179

(paras.26, 30 and 31)].

11. The learned Standing Counsel for the PSC submits that the proceedings pursued by the Government are per se wrong and illegal in all respects. The Commission right from the beginning, was resisting such action being pursued as a matter of course; relaxing the norms, simply invoking the power under Rule 39 of the Kerala State and Subordinate Services Rules, to cater to the demand of an individual. A reference was made in this regard in the Note Files [copies of which are forming part of the records (page No.89)]. The learned Standing Counsel for the PSC points out that the Secretary to the Government had objected to the relief sought for by the 4 th respondent; but considering the existence of Rule 39; further course of action was also stipulated to be made, i.e., after taking a decision by the Law Department and to have the file routed through the Chief Secretary for approval and orders. This has not taken place as evident from the ‘File Noting’ and no recommendation has been given by the concerned Department or the Chief Secretary, but for the opinion stated as procured from the Law Department, which however does not find a place anywhere in the proceedings. The learned counsel further submits that, admittedly the 4 th respondent was never called for any interview (for not having satisfied the physical measurements). Even on satisfying the physical measurements, a candidate has to undergo a ‘physical efficiency test’, which has not taken place in the case of the 4 th respondent. The necessity to undergo the training of ‘2½ years’ has been given a go-bye; and out of turn promotion has been given to the 4 th respondent without considering the chance for grievance to other similarly situated persons and nobody else has been given notice in this regard. Therejection made by the PSC is not merely for want of the chest measurement; adding that the merit and suitability of the 4 th respondent could not be assessed, having got eliminated at the time of verifying the physical measurements itself.

12. The learned Government Pleader submits that the decision taken granting of the benefit of Rule 39 was based on the opinion obtained from the Legal Department to the effect that there was no legal bar in considering the same and that the proceedings were finalised only in the particular facts and circumstances as revealed from Annexures.A16 and A21 orders. It is true that a counter affidavit has been filed by the 2 nd respondent in terms as aforesaid, but no counter affidavit has been filed by the 1 st respondent/State. Sri.P.Deepak, the learned counsel, who entered appearance on behalf of the 4 th respondent submits that Annexure.R4(a) amendment to the relevant Rules was brought about on 10.1.2006. As a matter of fact the chest measurement of ’84 cms.’ was stipulated only as per the notification issued in the year 2004; prior to which, it was only ’79 cms.’ By virtue of Annexure.R4(a) amendment effected from 10.1.2006, it was again brought down to 79 cms. and as such, the higher requirement of chest measurement existed only for a period of about one year. After clearing the written test, by the time when the physical measurement was taken, the amendment reducing the chest measurement had already come into force. It was accordingly, that Annexure.A8 representation was preferred before the Government on 29.6.2010 for invoking Rule 39 of the Kerala State and Subordinate Services Rules and to give promotion with all consequential benefits retrospectively. This has been considered favourably and as such, it was never a question of extending any undue advantage to the 4 th respondent, to the exclusion of the petitioner, who was never in the picture at that point of time. The learned counsel submits that the verdict passed by this Court and the Apex Court against the 4 th respondent cannot place any hurdle on the way of the Government in considering the claim with reference to Rule 39 of the Kerala State and Subordinate Services Rules; which position was clarified by the Law Department and hence the proceedings are within the four walls of the law.

13. There is no dispute with regard to the sequence of events or the chronology as displayed. The right of the petitioner to be considered and appointed against the slot vacated by Sri.Shanavas (Sl.No.8) has already attained finality by virtue of Annexures.A2 and A3 judgments and as such, the petitioner cannot establish any fresh right to be appointed against the vacancy occurred in the year 2008, by way of independent proceedings of this nature. But the grievance of the petitioner came to be aired in view of a different cause of action, based on the undue favours given by the Government to the 4 th respondent. In the case of the 4 th respondent also, there is no dispute that the notification issued by the PSC was based on the relevant Rules which existed at that point of time, stipulating minimum chest measurement as ’84 cms’. There is no challenge against the Rule or the notification.

14. Amendment of the Rule reducing the chest measurement came into force only from 10.1.2006, i.e., after the notification. It may be true, that the 4 th respondent is a person who satisfied the reduced requirement under the amended provision, but whether he could be considered in isolation by invoking power under Rule 39 of Part II, KS & SSR, is the question. It is settled law that the rules of the game cannot be changed during the middle of the game, as made clear by the Supreme Court in

K. Manjusree Vs. State of Andhra Pradesh & another, (2008) 3 SCC 512

A Division Bench of this Court had also occasion to consider the scope of intervention under such circumstance, in connection with the selection of District Judges of this Court and the proceedings including the decision taken by the Full Court on the administrative side were intercepted as per the decision reported in

Jayachandran v. High Court of Kerala, 2010 (4) KLT 49

(to which one of us [PRRM (J)] was a member). This Court also finds that the Apex Court had occasion to consider the said verdict passed by the Division Bench of this Court, and the scope of the invocation of power under Rule 39 of Part II, KS & SSR in

Lakshmi v. State of Kerala, 2012 (1) KLT 902 (SC)

The observations made by the Supreme Court in paragraphs 13 and 18 are extracted below:-

13. The short question that falls for determination in the above backdrop is whether the number of vacancies to be filled up was six as claimed by the High Court or ten as claimed by the appellant. While it is not disputed that the initial notification confined itself to filling up of six vacancies only, confusion relating to the said number arose on account of the High Court recommending invocation of R.39 by the Government to avoid a situation where the candidates who had already been appointed pursuant to the selection process had to go out of service on account of the Court directing preparation of a revised merit list on the basis of the unamended Rules. It is common ground that the vacancies that had arisen after the issue of the Notification were sought to be filled up only with the solitary purpose of somehow saving the three candidates from ouster who were bound to lose their jobs on account of the re-casting of the merit list. All that the High Court intended to recommend to the Government was that four vacancies that were available in the cadre, though the same had arisen after the issue of the Recruitment Notification, could be utilised by the Government if it invoked its power under R.39. The candidates facing ouster could then be continued as an exception to the general rule. It is also beyond dispute that the said recommendations could not have been accepted once the award of additional marks by way of moderation was struck down by the High Court in Jayachandran’s case. The inevitable consequence flowing from that judgment was that anyone who had found place in the merit list only because of the benefit of moderation would have to lose that place and go out of the list. Once that happened the question of retaining the services of the three candidates by invocation of powers vested in the Government under R.39 did not arise. The High Court was in the light of the subsequent development justified in recalling the recommendations made by it which in turn had the effect of limiting the number of vacancies to those originally notified. Mr. Rao was, therefore, right in contending that the proposed utilisation of four vacancies did not ipso facto add to the number of already notified. The addition was contingent upon the Government agreeing to exercise its power under Rules 39. Since the Government did not and could not possibly exercise the said power as a result of the quashing of the marks awarded by way of moderation the proposed addition of the vacancies to the number already notified became clearly infructuous. The High Court could and had rightly recalled the recommendations in the light of the said subsequent development.

18. In the light of the above pronouncements the power vested in the Government under R.39 (supra) could not have been invoked for filling up the vacancies which had not been advertised and which had occurred after the issue of the initial advertisement much less could that be done for purposes of protecting the service of someone who had found a place in the merit list on account of additional marks given to him and who was bound to lose that place by reasons of the judgment of the Court.

15. We are given to understand that the finalisation of the proceedings pursuant to the verdict passed by the Division Bench of this Court resulted in exclusion/elimination of some candidates who were already appointed as District Judges based on the ‘moderation’ given; which made the said persons aggrieved; having lost the selection and also their clients/briefs-when they were practising as Lawyers. This was considered by the ‘Full Court’ and the matter was referred to the Government for considering whether the power under Rule 39 of the Kerala State and Subordinate Services Rules could be invoked. When things were being pursued by the Government in this regard, the same was sought to be intercepted at the instance of others, who are waiting in the queue to get appointment; by approaching the Apex Court and the Apex Court has held that, it was not a case where power of the State Government could be invoked under Rule 39 of the Kerala State and Subordinate Services Rules.

16. Coming to the scope of Rule 39 of Part II of the K.S and S.S.R, it will be worthwhile to have the said Rule extracted for immediate reference:-

Rule 39 of the K.S and S.S.R:

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

Provided that where such rules or orders are applicable to the case of any person or persons, the case shall not be dealt with in any manner less favourable to him or them than that provided by those rules or orders. This amendment shall be deemed to have come into force with effect from 17th December 1958.”

17. The scope of the said Rule was examined by a Division Bench of this Court in the decision reported in

Koyit Joseph & others Vs. Subash George and others, 2006 KHC 755: ILR 2006 (3) Ker.162

Paragraph 23 of the said verdict reads as follows:-

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

18. Yet another Bench of this Court had occasion to consider the scope of the said Rule in

Vijayakumar v. State of Kerala, 2014 (1) KLT 186

Paragraph 3 of the said judgment is in the following terms:-

3. The Tribunal, rightly, said that the power of exemption is to be sparingly used and it is a reserve power to be exercised only on valid grounds. When a power to relax a Rule is protected while making a Rule, the power to relax has to be always understood as an exception and as only as the reflection of the existing power to deal with extraordinary circumstances. Any power to relax has always to be understood as one to be exercised in exceptional situations. If a power to relax were to be treated otherwise, that would be in affront to fairness, transparency and hence, would be arbitrary, having regard to Part-III of the Constitution of India.

19. In the verdict passed by the Apex Court reported in

Ashok Kumar Uppal Vs. State of J & K, (1998) 4 SCC 179

it has been observed in paragraph 26, that the power to relax the Recruitment Rules or any other Rule made by the State Government under Article 309 of the Constitution of India has to be exercised with care and caution. It was made clear in paragraph 30, that the Government can exercise the said power to relax the Rules in those cases in which hardship is caused in the implementation of those rules to meet a particular situation or where injustice has been caused to either the individual employee or class of employees. It was also alerted thatthe power cannot be exercised capriciously or arbitrarily, to give undue advantage or favour to an individual employee. On applying the law declared by the Apex Court to the given set of facts and circumstances, it is quite clear that the power was exercised by the Government in favour of the 4 th respondent quite casually; despite his losing the battle throughout (as per several judgments at different levels Single Bench and Division Bench of this Court and also before the Supreme Court). If the relaxation given by the Government is let to stand, it obviously will be in contravention of the relevant rules as it existed at the relevant point of time. That apart, there may be so many other persons like the 4 th respondent, who may be standing in the queue and having more merit than the 4 th respondent. The Government was more eager to extend benefit to the 4 th respondent, whose case was taken in isolation, merely on the basis of a representation made by him, quite conveniently forgetting the merit/fate or chance of others concerned; that too ignoring the clear advice/report/reply given by the PSC and also by the concerned Secretary to the effect that the relaxation of the Rule was not proper. This Court does not require any second thought to hold that the power has been exercised by the Government under Rule 39 extending favours to the 4 th respondent quite casually and arbitrarily, by passing Annexure.A16.

20. Still further, the basic necessity to undergo training for a period of ‘2½ years’ has been simply given a ‘go-bye’ and the Government found the 4 th respondent to be appointed by promoting him to a higher post involving higher risk, responsibilities and such other instances, even without training. What is the job requirement, what is the job specification, what is the output that is intended to be extracted from a person like the 4 th respondent considering the onerous duty to be discharged, protecting the forest and wild life, etc. are thrown to wind and it remain a matter of mystery. To what extent the interest of the State was intended to be protected by the Government or what was the public interest, if at all any, which was sought to be achieved but for mere extension of undue favours to the 4 th respondent, are not known. The action pursued by the Government cannot but be deprecated in the strongest possible words. This Court finds that the orders passed by the Government by way of Annexures.A16 and A20 as well as the consequential order passed by the Principal Chief Conservator of Forest by way of Annexure.A21 do not stand the test of law. Ext.P3 order passed by the Tribunal declining to interfere with the wrong orders passed by the authorities as above, merely observing that, even if such appointment is wrong, the applicant cannot be benefited, does not reflect the correct way of approach to be made. It cannot but be said that the above orders require to be intercepted and we do so. At the same time, we also make it clear that the fate of the applicant/petitioner herein stands already declared and it has become final, who is not entitled to get any relief for being promoted to the slot in question. The vacancy, if at all any, has to be filled up by the PSC in accordance with the relevant provisions of law. In the said circumstance, we set aside Annexures.A16, A20, A21 and Ext.P3 orders and this O.P. stands allowed to the said extent.

21. Consequential orders shall be passed by the Government/ Authorities of the Forest Department to cause the 4 th respondent to be reverted immediately to the post of Deputy Forest Ranger with effect from the date on which he was given the promotion. Further steps shall be taken to see that the loss suffered by the State, if any, be recovered from the persons concerned, immediately. We are of course aware of the verdict passed by the Supreme Court in

State of Punjab Vs. Rafiq Masih & another, (2015) 4 SCC 334

intercepting steps for recovery. The said decision is not applicable to the case in hand, in view of the factual difference and further since the 4 th respondent was perpetuating the proceedings to get favours, leading to the impugned orders. This actually is a matter, where imposition of cost will be justified. However, considering the persuasive submissions made by the learned Senior Government Pleader, we reluctantly refrain from awarding any cost.

Tags: , , ,

Comments are closed.

%d bloggers like this: