IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 640 of 2008()
1. STATE OF KERALA, REPRESENTED BY
... Petitioner
2. PRINCIPAL SECRETARY (FINANCE)
3. THE DISTRICT COLLECTOR, THRISSUR.
Vs
1. VILLAGEMEN STAFF ASOCIATION REG.NO.
... Respondent
For Petitioner :GOVERNMENT PLEADER
For Respondent :SRI.VAKKOM N.VIJAYAN
The Hon'ble the Acting Chief Justice MR.J.B.KOSHY
The Hon'ble MR. Justice P.N.RAVINDRAN
Dated :02/01/2009
O R D E R
J.B. Koshy, Ag. C.J.
&
P.N.Ravindran, J.
=====================
W.A.Nos.640 & 708 of 2008
============================
Dated this the 2nd day of January, 2009.
JUDGMENT
Ravindran,J.
Common questions arise in these Writ Appeals. They were
therefore heard together and are being disposed of by this common
judgment.
2. W.A.No.640 of 2008 arises from W.P.(C) No.9590 of 2004 and
W.A.No.708 of 20087 arises from W.P.(C) No.31791 of 2003. The said
Writ Petitions were disposed of by the learned Single Judge by a common
judgment delivered on 19.12.2006. The appellants are the respondents
in the Writ Petitions. The brief facts necessary for the disposal of these
Writ Appeals are as follows:
3. The respondent in W.A.No.640 of 2008 is the Villagemen Staff
Association represented by its Secretary and the respondents in
W.A.No.708 of 2008 are Villagemen. The grievance voiced by them is
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that Villagemen have not been given promotion to 15% of the vacancies
in the category of Village Assistant arising every year, which they claim
was reserved to them by G.O.(MS) No.876/72/RD dated 4.9.1972. By
judgment delivered on 19.2.2006, which is impugned in these Writ
Appeals, the learned Single Judge directed the appellants in these Writ
Appeals to ensure that steps are taken to give retrospective promotion
to Villagemen against the 15% quota in the respective vacancies of each
year in the category of Village Assistant that arose after the introduction
of the Special Rules. It was also declared that the promotees will be
entitled to consequential monetary and other service benefits. There
was also a further direction to effect ratio promotion as provided under
the Special Rules with retrospective effect, with the further direction that
such promotees will also be entitled to monetary and other service
benefits. The appellants in these Writ Appeals moved for review of the
said judgment. By a common order passed on 11.1.2008 in R.P.No.504
of 2007 in W.P.(C) No.9590 of 2004 and R.P.No.611 of 2007 in W.P.(C)
No.31791 of 2003, the learned Single Judge clarified that the 15% quota
will be limited to the vacancies of Village Assistant arising each year after
the introduction of the Special Rules.
4. The respondents in W.A.Nos.640 and 708 of 2008 contend that
in view of G.O.(MS) No.876/72/RD dated 4.9.1972 [copy of which is
produced and marked as Ext.P1 in W.P.(C) No.9590 of 2004], Villagemen
were declared as a separate category, distinct and different from last
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grade servants and that 15% of the future vacancies in the cadre of
Village Assistants were reserved to be filled up by promotion of
Villagemen having five years service or more. They submit that in view of
the said Government order, the Special Rules for the Kerala Last Grade
Service were amended and the category of Villageman was deleted by
G.O.(P) No.75/76/PD dated 11.3.1976 [copy of which is produced and
marked as Ext.P2 in W.P.(C) No.9590 of 2004], that thereafter the Special
Rules for the Kerala Revenue Ministerial Subordinate Service were
amended by stipulating in Note 2 to Category 4 in Rule 3 that the ratio
for appointment of Lower Division Clerks/Village Assistants including
Special Village Assistant from Villagemen/Last Grade Servants/ Attenders
shall be 3:2 and limited to 25% of the total posts of Village Assistants as
on 9.9.1984 and 25% of 35% of the posts of Lower Division Clerk/Village
Assistant thereafter. They further state that as per letter dated
29.1.1997 [copy of which is produced and marked as Ext.P3 in W.P.(C)
No.9590 of 2004] it was clarified that Villagemen and Last Grade
Servants need not pass the Chain Survey Test for promotion to the
category of Lower Division Clerk/Village Assistant. They contend that
they are thus entitled to 15% of the future vacancies in the category of
Village Assistant besides the 25% quota of the total number of posts of
Village Assistants as on 9.9.1984 and 25% of 35% of the posts of Lower
Division Clerks/Village Assistants thereafter. By the judgment under
challenge in the Writ Appeals, the learned Single Judge upheld their
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contentions and directed the appellants in the Writ Appeals to ensure
that steps are taken to give retrospective promotion to Villagemen
against 15% of the vacancies in the category of Village Assistant arising
each year after the introduction of the Special Rules. It was also declared
that the promotees will be entitled to consequential monetary and other
service benefits.
5. We have considered the submissions made at the Bar by the
learned counsel appearing on either side. The Revenue and Village
establishments were integrated with effect from 10.9.1984 as per G.O.
(MS) No.911/84/RD dated 10.9.1984, pursuant to the recommendations
of the Third Pay Commission. The respondents in these Writ Appeals
contend that under the terms of the Government order dated 10.9.1984,
Villagemen will continue to enjoy the benefit of reservation of 15% of the
vacancies of Village Assistants arising every year, earmarked for being
filled up by qualified Villagemen and that the integration order dated
10.9.1984 also contemplated an amendment to the Special Rules to
provide for reservation of 15% of the vacancies in their favour. After the
Revenue and Village establishments were integrated with effect from
10.9.1984, the Special Rules for the Kerala Revenue Ministerial
Subordinate Service were amended by G.O.(P) No.567/89/RD dated
12.7.1989 with retrospective effect from 10.9.1984. The method of
appointment to the post of Lower Division Clerk/Village Assistant
including Special Village Assistant, prescribed in Rule 3 thereof is as
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follows:
“(4) Lower Division (i) By direct recruitment.
Clerk/Village
Assistant (ii) By transfer from among Copyists upto 26.5.1982
including Special and from Village Assistants upto 9.9.1984.
Village Assistant (iii) By appointment of Lower Division Typist declared
eligible for appointment as Lower Division Clerk
as per G.O.(MS) No.301/PD dated the 26th
September, 1968 of the Public (Services – D)
Department.
(iv) By appointment from Villagemen with minimum
general educational qualification who are having
three years service and from Villagemen without
minimum educational qualification who are
having five years service.
(v) By appointment from Last Grade Servants/
Attenders in the Land Revenue and Survey
Department with minimum general educational
qualification and having five years total service.
Note 1:- The ratio for direct recruitment, recruitment by
transfer from among Copyists and recruitment
by transfer from among Village Assistants from
25.11.1958 till 26.5.1982 shall be 9:4:7.
Thereafter the ratio for direct recruitment and
recruitment by transfer from among Village
Assistants to the category of L.D. Clerks till
9.9.1984 shall be 13:7
Note 2:- The ratio for appointment from Villageman and
Last Grade Servants/Attenders shall be 3:2 and
limited to 25% of the total posts of Village
Assistants as on 9.9.1984 and 25% of 35% of
the post of L.D. Clerk/Village Assistant thereafter.
In the absence of qualified Villageman and Last
Grade Servants/Attenders the posts shall be
filled up by direct recruitment.
Note 3:- Lower Division Typists who are approved
probationers or full members and having the
prescribed educational qualification for admission
to the competitive examination conducted by
the Public Service Commission for selection of
Lower Division Clerks shall be allowed to appear
for the examination and those declared eligible
as per G.O.(MS) No.301/PD dated 26th
September, 1968 for appointment as Lower
Division Clerks shall be appointed in every sixth
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vacancy in the concerned unit according to
their seniority among Lower Division Typists in
the respective units on or after 26.9.1968. If
no qualified candidate is available at the time of
occurrence of the vacancy, such vacancies shall
be filled up by direct recruitment. The posts of
Village Assistants shall not be reckoned for the
determination of every sixth vacancy arising
in the constituent unit earmarked for the purpose
of appointment by transfer from among Lower
Division Typists.
Note 4:- The service rendered by any person as Village
Assistant prior to 1.1.1963 shall not be
reckoned for seniority in the category of L.D.
Clerk/Village Assistant/Special Village Assistant.
If the date of appointment of a Village
Assistant/Special Village Assistant and an L.D.
Clerk happens to be the same, the inter-se-
seniority shall be fixed based on their
date of birth, the elder senior to the
younger.”
6. As per the Special Rules for the Kerala Revenue Ministerial
Subordinate Service, as amended by G.O.(P) No.567/89/RD dated
12.7.1989, the method of appointment to the post of Lower Division
Clerk/Village Assistant including Special Village Assistant is (i) by direct
recruitment (ii) by transfer from among Copyists upto 26.5.1982 and
from Village Assistants upto 9.9.1984, (iii) by appointment of Lower
Division Typists eligible for appointment as Lower Division Clerks, (iv) by
appointment from Villagemen with minimum general educational
qualification having three years service and from Villagemen without
minimum educational qualification having five years service and (v) by
appointment from Last Grade Servants/Attenders in the Land Revenue
and Survey Department with minimum general educational qualification
and having five years total service. Note 2 to Category No.4 in Rule 3 of
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the Special Rules stipulates that the ratio for appointment from
Villagemen and Last Grade Servants/Attenders shall be 3:2 and limited to
25% of the total posts of Village Assistants as on 9.9.1984 and 25% of
35% of the posts of Lower Division Clerks/Village Assistants thereafter.
What the respondents claim is that in addition to the quota prescribed in
Note 2 referred to above, they are also entitled to be promoted to 15% of
the vacancies of Village Assistants arising every year in terms of the
assurance held out in paragraph 8 of G.O.(P) No.911/84/RD dated
10.9.1984.
7. It is not in dispute that the Special Rules for the Kerala Revenue
Ministerial Subordinate Service were amended by G.O.(P) No.567/89/RD
dated 12.7.1989 pursuant to the integration of the Revenue and Village
establishments brought about by G.O.(MS) No.911/84/RD dated
10.9.1984. However, while the amendment was carried out, the State did
not incorporate in the Special Rules, the stipulation in paragraph 8 of
G.O.(MS) No.911/84/RD dated 10.9.1984. The method of appointment
to the post of Lower Division Clerk/Village Assistant including Special
Village Assistant is prescribed in Rule 3 of the Special Rules for the
Kerala Revenue Ministerial Subordinate Service as amended by G.O.(P)
No.567/89/RD dated 12.7.1989. The Special Rules do not reserve 15% of
the vacancies of Village Assistants arising every year as claimed by the
respondents. Instead, Villagemen and Last Grade Servants/Attenders can
be appointed only to 25% of the total posts of Village Assistants as on
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9.9.1984 and to 25% of 35% of the Lower Division Clerks/Village
Assistants thereafter. Therefore the claim made by the respondents is
not tenable. The learned Single Judge, in our opinion, was therefore not
right in directing the appellants to retrospectively promote Villagemen to
15% of the vacancies of Village Assistants arising every year, after the
introduction of the Special Rules.
8. We notice that by G.O.(P) No.456/07/RD dated 31.12.2007, Rule
3 of the Special Rules for the Kerala Revenue Ministerial Subordinate
Service was again amended by substituting Note 2. Note 2 as amended
reads as follows:
“Note 2:- The ratio for appointment from Villagemen
and Last Grade Servants/Attenders shall be 3:2 and limited
to 25% of the total posts of Village Assistants as on
9.9.1984 and 25% of 35% of the total posts of L.D.
Clerks/Village Assistants upto 5th December, 2006. From
6th December, 2006, 15% of the total posts of L.D.
Clerk/Village Assistants shall be filled from among qualified
Villagemen and Last Grade Servants/Attenders at the ratio
of 3:2 between them. In the absence of qualified
Villagemen and Last Grade Servants/Attenders, the posts
shall be filled up by direct recruitment.”
9. After the amendment to the Special Rules introduced by the
Government order dated 31.12.2007, Villagemen and Last Grade
Servants/Attenders are entitled only to 25% of the total posts of Village
Assistants as on 9.9.1984 and 25% of 35% of the total posts of Lower
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Division Clerk/Village Assistant upto 5.12.2006. From 6.12.2006
onwards, 15% of the total posts of Lower Division Clerks/Village
Assistants have to be filled up from among qualified Villagemen and Last
Grade Servants/Attenders in the ratio of 3:2. It is also stipulated that in
the absence of qualified Villagemen and Last Grade Servants/Attenders,
the posts shall be filled up by direct recruitment. We notice that the
prescription in the Special Rules for the Kerala Revenue Ministerial
Subordinate Service as amended by G.O.(P) No.5678/89/RD dated
12.7.1989 and G.O.(P) No.456/07/RD dated 31.12.2007, has not been
challenged by the respondents. In our opinion, as the respondents have
not challenged the validity of the Special Rules, they are entitled only to
the quota reserved for them in the Special Rules, as amended from time
to time.
10. In the view that we have taken, the direction issued by the
learned Single Judge to retrospectively promote Villagemen to 15% of the
vacancies of Lower Division Clerks/Village Assistants including Special
Village Assistant, arising every year after the introduction of the Special
Rules, namely, with effect from 10.9.1984, cannot be sustained. in our
considered opinion, Villagemen in the Village establishment which was
integrated with the Revenue establishment with effect from 10.9.1984,
can claim promotion to the category of Lower Division Clerk/Village
Assistant including Special Village Assistant only in terms of the
prescription in Note 2 to Category No.4 in Rule 3 of the Special Rules for
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the Kerala Revenue Ministerial Subordinate Service. They can claim
promotion along with Last Grade Servants/Attenders only to 25% of the
total posts of Village Assistants as on 9.9.1984 and to 25% of 35% of the
total posts of Lower Division Clerks/Village Assistants upto 5.12.2006.
From 6.12.2006 onwards, 15% of the total posts of Lower Division
Clerks/Village Assistants have to be filled up from among qualified
Villagemen and Last Grade Servants/Attenders in the ratio of 3:2. The
respondents have no case that Villagemen were not given promotion in
accordance with the Special Rules. What they claim is promotion to 15%
of the total number of vacancies of Village Assistants arising every year
in addition to the quota prescribed in the Special Rules. In the light of
the stipulation in the Special Rules, we are of the considered opinion that
the respondents cannot claim or be granted the reliefs sought for by
them. Villagemen along with Last Grade Servants/Attenders are entitled
to 15% of the total posts of Lower Division Clerks/Village Assistants only
with effect from 6.12.2006 as stipulated in Note 2. The direction issued
by the learned Single Judge cannot therefore be sustained.
11. In the result, we allow W.A.Nos.640 and 708 of 2008, set aside
the judgment of the learned Single Judge and declare that the petitioners
in W.P.(C) No.31791 of 2003 and W.P.(C) No.9590 of 2004 and
Villagemen similarly placed can claim promotion to 15% of the total
number of posts of Lower Division Clerk/Village Assistant only with effect
from 6.12.2006, subject to the stipulations in Note 2 to Category No.4 in
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Rule 3 of the Special Rules for the Kerala Revenue Ministerial Subordinate
Service, as amended by G.O.(P) No.456/07/RD dated 31.12.2007.
J.B. Koshy,
Acting Chief Justice.
P.N.Ravindran,
Judge.
ess 9/12