IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 19147 of 2006(D)
1. CLARAMMA.M.J,
... Petitioner
2. MEENAKUMARI.M.S,
3. O.LEELAMANI,
4. SANTHI.V.JOSEPH,
5. SARADA.E.P,
Vs
1. STATE OF KERALA,
... Respondent
2. THE SECRETARY,
3. THE DIRECTOR,
4. UNION OF INDIA,
For Petitioner :SRI.BENOY THOMAS
For Respondent :SRI.D.PREM KAMATH, CGC
The Hon'ble MR. Justice K.M.JOSEPH
Dated :20/02/2008
O R D E R
K. M. JOSEPH, J.
--------------------------------------
W.P.C. NO. 19147 OF 2006 D
--------------------------------------
Dated this the 20th February, 2008
JUDGMENT
Petitioners are working as Supervisors of Integrated Child
Development Scheme (for short `ICDS’). They are Post
Graduates in Subjects, like, Social Work, Sociology, Psychology
and Home Science. They have approached this Court seeking
the following reliefs:
“i) Declare that the State Government is
bound to make appointments against 75% of the
posts of CDPOs of ICDS a centrally sponsored
scheme exclusively from Supervisors of ICDS by
promotion as per Ext.P1 directives issued by the
Central Government and to redraft its internal
recruitment rules ie. Ext.P3 (Category 7 of table to
Rule 3(a)) and Ext.P2 (in respect of Category 7 of
table to Rule 3) accordingly.
ii) Declare that Rule 3(a) of Ext.P3 (in
respect of Category 7 of table) and Rule 3 of Ext.P2
(in respect of category 7) in so far as they do not
WPC. 19147/06 D 2
provide that the posts of CDPOs of ICDS
(Category 7 of Ext.P3 Rules) are to be filled up by
promotion from supervisors of ICDS (presently
Category 8 of Ext.P2), but provided a different
method of appointment by transfer from 11
categories not mentioned in Ext.P1 and further to
the extent the posts of Supervisors of ICDS
(presently Category 8 of Ext.P2) are not made the
only feeder posts for promotion to the posts of
CDPOs of ICDS (Category No.7 of Ext.P3 Rules)
and further to the extent Supervisors of ICDS are
not included in the State Services, the method of
appointment prescribed being promotion as per
Ext.P1, are directly opposed to Ext.P1 directive
issued by the Central Government and therefore
arbitrary, illegal and hit by Articles 14, 16 and 21
of the Constitution of India and hence void and
inoperative.
iii) Issue a consequential writ of mandamus
or direction striking down the method of
appointments prescribed for the posts of CDPOs of
ICDS ie. Rule 3(a) category 7 of Ext.P3,
prescription of the 11 feeder posts as well as Rule 3
WPC. 19147/06 D 3
Category 7 of Ext.P2 Rules to the extent it provided
for promotions to supervisors of ICDS (Category 8)
being contrary to Ext.P1.
iv) Issue a consequential writ of mandamus
or other appropriate writ, order or direction
directing the State Government ie. Respondent
No.1 to redraft and make the Rules in respect of the
appointment of CDPOs from supervisors of ICDS
projects of the State in tune with the declarations
sought for in prayer Nos. (i) and (ii) and Ext.P1 ie.
by reserving 75% of the posts of CDPOs of ICDS
exclusively for promotion from supervisors of ICDS
and till then to fill up 75% of the posts of CDPOs of
ICDS exclusively from supervisors of ICDS by
promotion, as stipulated in Ext.P1 and further to
give notional effect to such promotions w.e.f. the
date of coming into force of Ext.P3 Rules.”
2. According to petitioners, by Ext.P1, the Government of
India in the Ministry of Human Resource Development, have
taken certain decisions and made directions to various
Governments, providing for appointment to the post of Child
WPC. 19147/06 D 4
Development Project Officer (for short `CDPO’) by filling up 75
per cent of the posts from promotions from female Supervisors
of ICDS projects and the remaining 25 per cent by direct
recruitment. Exts.P2 and P3 are the statutory Rules framed
under Section 2 of the Kerala public Services Act, 1968 in
supersession of the orders prevailing. Ext.P2 are the Special
Rules for Kerala Social Welfare Subordinate Service. Ext.P3
provides for Special Rules for the Kerala State Social Welfare
Service. The essential complaint of the petitioners is that in
violation of Ext.P1, when the Statutory Rules were framed, the
posts held by the petitioners were not included in the feeder
category for promotion to the post of ICDS, nor is 75%
reservation given for them as contemplated in Ext.P1. It is
pointed out by the petitioners that Ext.P5 dated 4.10.1993, inter
alia, provides as follows:
“With a view to ensure the desired level of
interaction, it has been decided that the posts of
CDPOs/ACDPOs shall be reserved for women
candidates in all future appointments in respect
of all State Governments/Union Territories. It is
WPC. 19147/06 D 5
accordingly requested to take immediate action in
amending the recruitment rules in your
State/Union Territory to include reservation for
women candidates for the posts of
CDPOs/ACDPOs.”
3. Pointing out that Exts.P1 and P5 were not implemented,
certain Supervisors approached this Court with a Writ Petition
which culminated in Ext.P6 Judgment and a perusal of the same
would show that both Exts.P1 and P5 (which are referred to as
Exts.P3 and P4 in the said Judgment) came to be accepted by the
Government of Kerala and on the said basis this Court directed
implementation of Exts.P1 and P5. Pursuant to the same, by
Ext.P7 an amendment is brought to the Rules by which the
category of CDPO came to be reserved exclusively for women.
Likewise in Ext.P7(a), the category of ACDPO was also
reserved exclusively for women. It is with these allegations that
the petitioners have approached this Court.
4. A Counter Affidavit has been filed on behalf of
respondents 1 and 2, to which the petitioners filed a Reply
WPC. 19147/06 D 6
Affidavit and also an Additional Reply Affidavit. I heard the
learned counsel appearing for the petitioners as also the learned
Government Pleader.
5. Learned counsel for the petitioners would contend that
the infraction of Ext.P1 directions by the Government of a State
is in the teeth of Article 246(3) of the Constitution. According
to him, Article 73 of the Constitution declares that the executive
power of the Union shall be co-extensive with the legislative
power of the Union. According to him, the subject of legislation
is Entry 23 of List III of the 7th Schedule of the Constitution.
He would therefore contend that a law cannot be passed by a
State Legislature in view of Article 246 against the mandate of
Ext.P1 to be traced to the Executive power of the Union and it
must hold the field. In other words, in effect Ext.P1 must be
deemed to be possessed the characteristics of the plenary
legislation made by a competent legislature which would have
over-riding effect in relation to the law made by the State
legislature, namely Ext.P3 Rules. He would further contend
WPC. 19147/06 D 7
that the failure of the rue making authority to adhere to Ext.P1
renders it arbitrary. He took me to Exts.P2 and P3 to point out
that the post of Supervisor held by the petitioners figures as part
of Subordinate Service. Petitioners can aspire for promotion
only to the post of Superintendent and further as Inspector and
the post of Supervisor held by the petitioners is not among the
feeder categories to the post of CDPO which figures among the
posts in the State service as provided in Ext.P3. He would point
out that the petitioners are working from 1990 and stagnating as
Supervisor and this being contrary to Ext.P1 is arbitrary. He
would further submit that as evidenced by Ext.6 Judgment, this
Court acted on the basis of Exts.P1 and P5 and also the
acceptance of Exts.P1 and P5 by the Government and it is
submitted that while the direction in Ext.P5 that the post should
be filled up by women employees came to be incorporated by
Exts.P7 and P7(a), there is transgression of Ext.P1 in so far as
all women employees are allowed to aspire to the post of Officer
and what is more, the women Supervisors are left out from
WPC. 19147/06 D 8
reckoning for direct promotion. Learned Government Pleader,
on the other hand, pointed out that Ext.P1 cannot have the effect
of taking away the legislative power of the State and no
interference is called for.
6. A perusal of Ext.P1 would show that a decision was
taken by the Government, no doubt, providing that appointment
to the post of ICDS Officer shall be by promotion from the
category of female Supervisors to the extent of 75% and the rest
by direct recruitment. However, Ext.P1 shows that it is
essentially a request addressed to the Secretaries and Directors
in charge of the ICDS in all the States. The grounds on which
the Statutory Rule can be challenged are well settled. Failure to
implement Ext.P1 cannot be a ground to declare a statutory rule
bad.
7. I do not think that a ground exists in law countenancing
or upsetting a statutory rule on the basis that it is contrary to the
executive direction, even if Ext.P1 is to be held as a direction
issued by the Government. Further, I do not think that Ext.P7
WPC. 19147/06 D 9
can be treated as a direction having regard to the language
employed in Ext.P1. Still further I see no merit in the contention
of the petitioners that there is violation of Article 246(3) of the
Constitution. Article 246(3) reads as follows:
“246. Subject-matter of laws made by
parliament and by the Legislatures of States:
(3) Subject to clauses (1) and (2), the
Legislature of any State has exclusive power to
make laws for such State or any part thereof with
respect to any of the matters enumerated in List II
in Schedule VII (in this Constitution referred to as
the`State List'”
8. Ext.P1 cannot by any stretch of imagination be treated
as a law made by the Union Parliament within the meaning of
Article 246. I would think that under the constitutional scheme
of things, Ext.P1 could not have stood in the way of the ruling
making authority to exercise power providing for the posts and
method of promotion. In fact, in the Additional Reply Affidavit,
WPC. 19147/06 D 10
petitioners have produced Ext.P9 which is provided under the
Right to Information Act. Therein, it is stated that the guidelines
in Ext.P5 letter are to be interpreted to be meant for woman
candidates in general. Amendments were carried out. It is, no
doubt, true that ideally going by the observation of the Union
Government, promotion should be provided from the post of
Supervisor in an extent of 75 per cent to the post of CDPO. But,
that is essentially a value Judgment of the rule making
authority, keeping in view various aspects including the nature
and functions of the posts in question. Merely for the reason
that statutory rule is made contrary to the request made in
Ext.P1, I would not think it could be characterised as arbitrary
under Article 14. It is not as if the petitioners as Supervisors are
totally bereft of any promotional avenues. Petitioners are indeed
provided with several promotional avenues. It is also pointed out
by the counsel for the petitioners that under the Rules, all the
existing employees at the time when the Rules were made are
allowed to aspire for further promotion as CDPOs if they
WPC. 19147/06 D 11
possess the qualification of SSLC and this will also stand in the
way of the petitioners, who are Post Graduates getting
promotion, and this will be a further hurdle for the petitioners. I
see no merit in the said contention. Apparently, when the new
Rules were framed, the rule making authority considered the
case of the existing employees appropriately. In such
circumstances, I do not find any merit in the Writ Petition.
Accordingly, it is only to be dismissed and I do so. But, I make
it clear that nothing stated in this Judgment will stand in the way
of the Government considering Ext.P10.
K. M. JOSEPH, JUDGE
kbk.