IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 8425 of 2009(W)
1. V.P.PRASAD,ASSISTANT TALUK SUPPLY
... Petitioner
Vs
1. STATE OF KERALA,REPRESENTED BY SECRETARY
... Respondent
2. THE COMMISSIONER OF CIVIL SUPPLIES,
3. J.MURALEEKRISHNA TALUK SUPPLY OFFICER,
For Petitioner :SRI.KALEESWARAM RAJ
For Respondent :SRI.M.K.DAMODARAN (SR.)
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :07/04/2009
O R D E R
T.R. Ramachandran Nair, J.
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W.P.(C) No.8425 of 2009-W
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Dated this the 7th day of April, 2009.
JUDGMENT
The writ petition involves an interpretation of Rule 9(d) of the Kerala
State and Subordinate Service Rules, 1958. The petitioner who is working
as Assistant Taluk Supply Officer, is challenging Ext.P2 order by which the
third respondent was promoted as Taluk Supply Officer after giving the
benefit of Rule 9(d) even though the petitioner is senior to him.
2. The necessary facts for the disposal of the case are the following:
In the select list published by the Convener of the Departmental Promotion
Committee on 1.12.2008, the petitioner is serial No.36. It is averred that the
candidates upto serial No.34 have already been promoted as Taluk Supply
Officers and the petitioner is the third incumbent remaining in the select list
to be promoted as Taluk Supply Officer.
3. The third respondent was promoted for filling up the vacancy
which arose in Udumbanchola Taluk Supply Office based on his
acquisition of Tamil Minority Language Test. It is contended that the
power under Rule 9(d) could not be invoked when admittedly so many
seniors are yet to be promoted. It is pointed out that the provision is not
wpc 8425/2009 2
controlled by any specific guidelines in the matter which gives arbitrary
power to the respondents to favour any employee. As the order is passed
not by the Government, but by the Commissioner, Civil Supplies, the same
is in violation of Rule 9(d) of the Rules itself. It was also contended that
the order is passed only because of the pressure exerted by the third
respondent and there are several circumstances which would show that the
third respondent is so influential.
4. Respondents 2 and 3 have filed separate counter affidavits. In the
counter affidavit filed on behalf of the second respondent, Exts.R2(a) and
R2(b) are relied upon to show that already orders were there for exercise of
the power under Rule 9(d). Going by Ext.R2(a), general orders have been
issued by the Government in the matter and by Ext.R2(b) the position was
re-inforced by directing all Heads of Departments to ensure that the
Government instructions and orders regarding posting of officers with
requisite language qualifications in linguistic minority areas in the State are
properly adhered to.
5. Heard learned counsel for the petitioner Shri Kaleeswaram Raj,
learned Govt. Pleader Shri Sandesh Raja for respondents 1 and 2 and
learned Senior Counsel Shri M.K. Damodaran for the third respondent. For
convenience, Rule 9(d) is extracted below:
wpc 8425/2009 3
“Notwithstanding anything contained in these rules, or in the
Special Rules if and when a vacancy arises in a post borne on the
cadre of a service, class or category for appointment to which
knowledge of a particular regional language is necessary in the
opinion of the State Government and the person who is entitled to
appointment to the post under these rules and the special rules does
not possess such knowledge any other person junior to him who
possesses such qualification and other qualifications, if any,
prescribed under the rules may be appointed to that post; but the
person so appointed shall not, by reason only of such appointment,
be regarded as a probationer in such service, class or category, nor
shall he acquire thereby any preferential right to future appointment
to such service, class or category.”
Learned counsel for the petitioner submitted that only if the Government
forms an opinion each time when a vacancy arises that it is to be filled up
by a person having knowledge in the particular regional language, then
alone the power could be exercised. Herein, the Government has not
passed any order in that regard. It is further pointed out that the seniority is
a relevant criteria for promotion and herein a person far junior is getting a
march over others by resort to a provision like Rule 9(d) and it cannot be
justified at all.
6. While examining the question whether each time Government
wpc 8425/2009 4
should exercise the power by passing separate orders after forming opinion
in the matter, the relevant notification produced by the respondents can be
of assistance. As per Ext.R2(a) dated 21.3.1966 the Government has
specified Tamil areas for use of minority language for official purposes.
The list contains local areas where 15% or more of the population speak a
language different from Malayalam. Udumbanchola is one of the Taluks
thus notified. Ext.R3(a) is an order dated 3.10.1962 whereby the
Government ordered that only officers possessing the requisite language
qualification will be considered for promotion to the various categories of
posts in the areas where the predominant language is Tamil or Kannada,
even though such officers may not be eligible for promotion in the order of
seniority. Items 1 to 3 relates to Revenue, Police and Education
departments and item 4 include all Gazetted Officers of other Departments.
In Ext.R2(b) detailed instructions have been issued by the Government for
filling up of Gazetted executive posts in linguistic minority areas. After
referring to Rule 9(d), in para 3 of Ext.R2(b), it is noted that “despite the
above provisions, in certain departments these instructions are not seen
properly implemented. All Heads of Departments are therefore directed to
ensure that the Government instructions and order regarding posting of
officers with requisite language qualifications in linguistic minority areas in
wpc 8425/2009 5
the State are properly adhered to.” In the light of the above Government
Orders and notifications issued in this regard, there cannot be any doubt that
these have been issued for the purpose of exercise of power under Rule 9(d)
which has been introduced with retrospective effect from 1959. Even
though in Rule 9(d) the words “in the opinion of the State Government”
occurs, since the Government has already formed it by issuance of Exts.R2
(a), R2(b) and Ext.R3(a), the guidelines as is required for the exercise of
power by the appointing authority are clearly available. In that view of the
matter, there need not be any separate Government Orders while filling up
each vacancy.
7. Then the other condition for the applicability of the rule is that a
person who is entitled to appointment to the post under the General Rules
and the Special Rules does not possess such knowledge and any other
person junior to him who possesses such qualification is available. Even
though the learned counsel for the petitioner vehemently contended that the
Government has not indulged in any such exercise, it is clearly averred in
the counter affidavit in para 6 that there were no other senior persons who
have passed the Tamil language test conducted by the Public Service
Commission. In the writ petition the petitioner has no case that any other
person senior to the third respondent who has passed the minority Tamil
wpc 8425/2009 6
language test conducted by the Public Service Commission was available
and his claim was overlooked. Learned counsel for the petitioner even
though contended that the details of exercise made by the Government to
find out any person among the seniors are not specifically averred in para 6
of the counter affidavit, in the absence of a contention that the claims of
seniors have been overlooked, the averments could be accepted. Therefore,
the said contention is not sustainable.
8. Next it is contended that whenever such a vacancy arises, the
respondents 1 and 2 are bound to publish notice to ascertain whether any
seniors are available for promotion and in the absence of such a procedure,
the order Ext.P2 cannot be supported. First of all, such a statutory exercise
is not prescribed by rule 9(d). Secondly, the details of persons who have
passed the test are available with the respondents. Rule 9(d) is controlled
by a non-obstante clause. Therefore, once the appointing authority is
convinced that going by the prescriptions of the existing Government
Orders like Exts.R2(a), R2(b) and Ext.R3(a), such a person is to be
appointed a person, though junior, who has passed the test can be
appointed if seniors having the test qualification are not available. In that
view of the matter, absence of a notice inviting applications, etc. will not
vitiate the exercise of power.
wpc 8425/2009 7
9. Shri M.K. Damodaran, learned Senior Counsel appearing for the
third respondent submitted that all the procedures prescribed under Rule 9
(d) are satisfied in this case and the petitioner being not the next candidate
for promotion even as per the select list, has no locus standi to challenge the
order in question. He also invited my attention to a decision of this court in
K. Ramakrishnan v. State of Kerala and another (ILR 1992 (1)
Ker.737). In fact, in the above said decision this court considered the
question whether the Government can grant appointment merely for the
reason that the person concerned has working knowledge in the language.
It was held that the qualification can be assessed only on the basis of the
pass in Minority Language Test conducted by the Public Service
Commission. If it is otherwise, and is left to the sweet whims and fancies of
the appointing authority to see whether a particular officer has working
knowledge or not, it will lead to arbitrariness. In Baburaj v. Government
of Kerala (2005 (2) KLT 451), this court held that Rule 9(d) is not violative
of Articles 14 and 16 of the Constitution of India. It was found thus:
“In areas where the linguistic minorities are identification as a
group by themselves in a proportion to the satisfaction of the State,
which has been reasonably fixed at a particular ratio of the
population, as already noticed, their requirements will have to be
wpc 8425/2009 8
satisfied. This is the reasonableness of a classification made by
Rule 9(d) of the General Rules. ”
It was further held that “Rule 9(d) does not require a Government servant
to stake a claim…………….The seniority between the personnel cannot be
disturbed by recourse to Rule 9(d) of the General Rules, unless the senior
does not possess the knowledge of language as required by the said Rule.”
The dictum laid down in the above decision will not go against the
conclusions taken by me earlier. Even though learned counsel for the
petitioner relied upon the decision of the Apex Court in Nair Service
Society v. State of Kerala (2007 (1) KHC 863), in the facts of the case, I
need not go into the principles laid down therein.
10. The next question is whether the order is vitiated by malafides.
Even though it is pointed out that there is reference in Ext.P2 to a
representation filed by the third respondent based on which the order was
passed, in view of the fact that there are no violations of the statutory
stipulations and as it is specified in Ext.P2 that he will get seniority only
when he gets promotion depending upon his seniority alone, no particular
favour has been conferred on the third respondent. There is nothing to
show that the order has been passed only because he has staked his claim.
Lastly, it is contended that the provision is capable of misuse and arbitrary
wpc 8425/2009 9
exercise of power, since the claim of seniors could effectively be defeated
by resort to such appointment. As noted already, the power is to be
exercised in the light of the various conditions to be satisfied and in view
of the non-obstante clause contained in the provision itself. Once those
conditions are found to be satisfied in a case, merely because a junior had to
be appointed that will not lead to abuse of the power conferred. Even if the
post was manned by a person who was not having Tamil Language Test
as a qualification at some point of time, nothing prevents the Government
from filling up a subsequent vacancy by a person having the knowledge of
Tamil Language. It is also pointed out at the Bar that presently the officer is
expected to issue ration cards in respect of various Tamil speaking people.
In the light of the above, the order Ext.P2 does not suffer from any
vitiating circumstances. Therefore, the writ petition fails and the same is
dismissed.
(T.R. Ramachandran Nair, Judge.)
kav/