IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 1220 of 2010()
1. P.K.LAL, ADDITIONAL DIRECTOR OF
... Petitioner
Vs
1. THE STATE OF KERALA, REPRESENTED BY THE
... Respondent
2. SECRETARY TO GOVERNMENT,
3. M.NANDAKUMAR, I.A.S.,
For Petitioner :SRI.A.N.KUTTAN
For Respondent :GOVERNMENT PLEADER
The Hon'ble the Chief Justice MR.J.CHELAMESWAR
The Hon'ble MR. Justice P.R.RAMACHANDRA MENON
Dated :06/12/2010
O R D E R
J. CHELAMESWAR, CJ &
P.R. RAMACHANDRA MENON, J.
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W.A. No. 1220 OF 2010
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Dated this the 6th December, 2010
J U D G M E N T
J. Chelameswar, CJ.
Aggrieved by judgment dated 08.06.2010 in W.P.
(C)No. 13291 of 2009, the unsuccessful petitioner therein
preferred the instant appeal. The petitioner is an Additional
Director of Information and Public Relations in the service of
the State of Kerala. The conditions of the said service are
regulated by Special Rules made by the State of Kerala, in
exercise of the powers under Section 2 of sub-section (1) of
the Kerala Public Service Act, 1968. The prevailing rules
are made in the year 2002. Rule 2 describes the service
consisting of 10 categories . In the first category there is
only one post called the Director of Public Relations.
Rule 3 deals with the method of appointment to the various
categories of posts and in so far as the post of Director of
Public Relations is concerned, the method of appointment is
W.A. No. 1220 OF 2010
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stipulated as follows:
“…….. 3. Appointment:-(a) Appointment to the several
categories shall be made as follows
Category Method of appointment
Director of Public (i) By promotion from the category of
Relations Additional Director of Public Relations.
OR
(ii) By transfer from any other service
OR
(iii) By Direct recruitment including
appointment on contract basis.
2. It can be seen from the above extract that the
post of Director of Public Relations can be filled up either
by promotion from the category of Additional Director of
Public Relations or by transfer from any other service or by
Direct Recruitment, including appointment on contract basis.
3. The appellant, who is an Additional Director of
Public Relations aspires to be promoted to the post of
Director of Public Relations in view of the above extracted
rule, which does provide for promotion as one of the
methods of appointment to the post of the Director of
Public Relations.
W.A. No. 1220 OF 2010
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4. Complaining that by an order dated 28.04.2009
marked as Ext. P4 in the Writ Petition, the third respondent
was illegally appointed as the Director of Public Relations,
the appellant herein approached this Court by way of the
above mentioned Writ petition with the prayers as follows:
“(A) a writ of certiorari or any other appropriate writ,
order or direction quashing Ext. P4 order to the extent
relating to the appointment of the 3rd respondent as
Director of Public Relations.
(B) a writ of mandamus or any other writ, order or
direction commanding the 1st and 2nd respondents to
consider the claims of the petitioner for promotion to the
post of Director under the provisions of Ext.P2 Special
Rules and the representation referred to as Ext. P5.
(C) such other writ, order or direction as may be
deemed just and expedient in the circumstances of the
case; and
(D) to allow the Writ Petition with costs.”
5. By the judgment under appeal, a learned
Judge of this Court dismissed the Writ Petition, holding that
the post of the Director of Public Relations is a post borne
on the cadre of Indian Administrative Service and therefore
W.A. No. 1220 OF 2010
4
could not be filled up by a person not borne by the cadre of
Indian Administrative Service.
6. The learned Counsel for the appellant, Adv. Mr.
A.N.Kuttan argued that though under the relevant rules
governing the cadre of Indian Administrative Service, the
post of Director of Public Relations in the State of Kerala is
required to be filled up by appointment of an officer
belonging to the Indian Administrative Service allotted to
the State of Kerala, the Special Rules governing the
‘Service’ known as Kerala Public Relations Service gave
a discretion to the State of Kerala to make appointment to
the post of Director of Public Relations by resorting to any
one of the three alternate methods of appointment. The
learned counsel, therefore, submitted that the stand of the
State of Kerala that they are obliged to appoint only an
officer belonging to the cadre of Indian Administrative
Service is not legally tenable. By taking such a stand, the
State of Kerala failed to exercise the discretion legally
vested in it under the Kerala Public Relations Service
W.A. No. 1220 OF 2010
5
Special Rules, 2002, thereby rendering the appointment
of the third respondent illegally. The learned Counsel also
submitted that in the year 2005, even after coming into
force of the Kerala Public Relations Service Special Rules
2002, the State of Kerala promoted one of the Additional
Directors one Mr. K.C.Venu to the post of Director of Public
Relations in exercise of the discretion vested in the State of
Kerala under the above mentioned Rule 3 of the State of
Kerala. Therefore the stand of the State of Kerala that they
are obliged to appoint only an officer of the cadre of the
Indian Administrative Service is only a stand taken to suit
their convenience in the present case to justify the illegal
appointment of the third respondent.
7. Part XIV of the Constitution of India deals with
the Services under the Union and the States. Article 309 of
the Constitution authorises the appropriate Legislation to
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.
W.A. No. 1220 OF 2010
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However, Article 312* contemplates the establishment of
certain All India Services by law made by the Parliament.
———————————————————–
“312. All India Services:- (1) Notwithstanding anything in
Chapter VI of Part VI or Part XI , if the Council of States has
declared by resolution supported by not less than two-thirds
of the members present and voting that it is necessary or
expedient in the national interest so to do, Parliament may by
law provide for the creation of one or more all-India services
including an all-India Judicial service common to the Union
and the States, and, subject to the other provisions of this
chapter, regulate the recruitment, and the conditions of
service of persons appointed, to any such service.
(2) The services known at the commencement of this
Constitution as the Indian Administrative Service and the
Indian Police Service shall be deemed to be services created
by Parliament under this article.
(3) The all-India judicial service referred to in clause
(1) shall not include any post inferior to that of a district judge
as defined in article 236.
(4) The law providing for the creation of the all-India
judicial service aforesaid may contain such provisions for the
amendment of Chapter VI of Part VI as may be necessary for
giving effect to the provisions of that law and no such law
shall be deemed to be an amendment of this constitution for
the purposes of article 368″.
W.A. No. 1220 OF 2010
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Sub-clause (2) of Article 312 declares that the service
known at the commencement of the Constitution as the
Indian Administrative Service and the Indian Police Service
shall be deemed to be services created by Parliament under
the said Article. Apart from the mandatory requirement
that the above mentioned two services are required to be
legally treated as All India Services, clause (1) of Article
312 authorises the Parliament to create other services
common to the Union and the States, and regulate the
process of recruitment and the conditions of such services.
8. In exercise of the authority conferred under
Article 312 of the Constitution, the Parliament made the All
India Services Act 1951, which authorises the Union of
India, under Section 3, to make rules for the regulation of
recruitment and the conditions of service of persons
appointed to an All India Service. In exercise of the powers
conferred under sub section (1) of Section 3 of the All India
Services Act,1951, the Government of India made the
Indian Administrative Service (Cadre) Rules,1954.
W.A. No. 1220 OF 2010
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Under Rule 3, it is stipulated that there shall be constituted
for each State or group of States an Indian Administrative
Service cadre. Rule 4 of the said Rules provides that the
strength and composition of each of the cadres constituted
under Rule 3 shall be as determined by the Regulations
made by the Central Government in consultation with the
State Government. Under Rule 8 of the said Rules, it is
provided that every cadre post shall be filled by a cadre
officer. Rule 8(1) of the Rules reads as follows:
“Save as otherwise provided in the rules, every cadre posts
shall be filled by a cadre officer.”
The expression ‘cadre officer’ and ‘cadre post’ are defined
under Rule 2 (a) and (b) respectively of the said rules as
follows:
“a) ‘cadre officer’ means a member of the Indian
Administrative Service.
(b) ‘cadre post’ means any of the post specified under
Item I of each cadre in the schedule to the Indian
Administrative Service (Fixation of Cadre Strength)
Regulations, 1955.”
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9. Rule 9 categorically declares that a Cadre Post
in a State shall not be filled by a person who is not a cadre
officer barring exceptional situations. Rule 9 clause (1) in
so far as, is relevant and reads as follows:
“(1) A Cadre post in a State shall not be filled by a
person who is not a cadre officer except in the following
cases, namely: –
(a) if there is no suitable cadre officer available, for
filling the vacancy:
Provided that when a suitable cadre officer becomes
available, the person who is not a cadre officer shall be
replaced by the cadre officer.
Provided further that if it is proposed to continue the
person who is not a cadre officer beyond a period of three
months, the State Government shall obtain the prior
approval of the Central Government for such continuance.
(b) if the vacancy is not likely to last or more than three
months.
Provided that if the vacancy is likely to exceed a
period of three months the State Government shall obtain
the prior approval of the Central Government for continuing
the person who is not a Cadre Officer, beyond the period
of three months”.
10. In exercise of the powers under sub rule (1)
of Rule 4 mentioned above, the Government of India, in
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consultation with the State Governments made the
Regulations known as Indian Administrative Service
(Fixation of Cadre Strength)Regulations, 1955. With
reference to the State of Kerala, under entry 9 (KERALA),
the various posts in the State of Kerala which are required
to be filled up by cadre officers and the total number of such
posts are specified. Admittedly, the post of Director of
Public Relations is a cadre post contemplated under the
above Regulations. By notification dated 10th June, 1999 of
the Government of India, the existing item ‘9’ of the above
mentioned Regulations in so far as it deals with the State of
Kerala, was amended by including the Director of Public
Relations in the cadre of Indian Administrative Service in so
far as the State of Kerala is concerned. Therefore, on the
basis of the declaration made under Rules 8 and 9 that a
cadre post shall be filled up only by a cadre officer and not
by any other officer, except in an exceptional situation.
11. Therefore, we do not see any illegality in the
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decision of the State of Kerala to appoint the third
respondent to the post of the Director of Public Relations.
12. The other submission of the learned Counsel
for the appellant that in view of the fact that the Special
Rules of the State of Kerala, known as “Kerala Public
Relations Service Special Rules, 2002”, have been framed
at a later point of time than the Indian Administrative
Service (Fixation of Cadre Strength) Regulations, 1955, the
latter rules shall prevail cannot be accepted in view of the
constitutional mandate under Article 312 of the Constitution
of India, which opens with a non-obstante clause. The
authority of the Parliament to legislate upon the subject of
All India Services is declared to be overriding the
arrangement made in Part XI of the Constitution which
deals with the legislative relations between the Union and
the States.
13. Therefore, in so far as the services which are
either deemed to be or declared to be All India Services,
are concerned, the authority of the Parliament to legislate
W.A. No. 1220 OF 2010
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upon the subject is plenary and the concerned State
Legislatures are denuded of the authority to make any law
in that regard once the authority to deal with, either the
process of recruitment or conditions of service of the post
which is declared to be a post borne by the cadre of an All
India Service.
14. Coming to the other submission of the
learned Counsel for the appellant that in the year 2005, an
officer who did not belong to the Indian Administrative
Service was in fact appointed to the post of Director of
Public Relations, we are of the opinion that Rule 9 of the
Indian Administrative Service (Cadre) Rules 1954 does
contemplate the possibility of appointment of a person not
belonging to the cadre of the Indian Administrative Service
for a limited period in exceptional circumstances and subject
to certain restrictions made in the Rule 9 of the above
mentioned rules. We do not know under what circumstance
such appointment came to be made in the year 2005. In the
absence of any specific challenge to such an appointment
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and an appropriate pleading, the mere fact that such
appointment was made in the year 2005, does not create
any right in favour of the appellant herein nor constitute any
precedent in making a further appointment in violation of
the mandate under Rules 8 and 9 of the Indian
Administrative Service (Cadre) Rules 1954.
In the result, we do not see any merit in the
appeal and it is dismissed. No cost.
J. CHELAMESWAR,
CHIEF JUSTICE.
P.R. RAMACHANDRA MENON,
JUDGE.
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