High Court of KeralaSingle Judge2007-11-01Dismissed; directions issued to rectify anomaly...

K.A. Nazar and V.B. Pushpavally v. State of Kerala and Director of Panchayats

Case / Petition Number:OP No.34607 of 2002 (T)

Neutral Citation:/

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Thottathil B. Radhakrishnan
Judgment Date: 2007-11-01
Court Decision / Holding: Petition dismissed. However, the court directed the Government to consider the petitioners’ cases and rectify any anomaly in light of the facts, providing an opportunity to the petitioners and others, with a four-month outer limit from receipt of the judgment copy to render a final decision.
Final Disposition: Dismissed; directions issued to rectify anomaly and consider petitioners’ cases, with a four-month deadline for the government to render a final decision.

Parties to the Case

Appellants / Petitioners

K.A. Nazar
V.B. Pushpavally

Respondents

The State of Kerala, represented by its Secretary, Local Administration Department, Secretariat, Thiruvananthapuram
The Director of Panchayats, Thiruvananthapuram

Legal Representation & Advocates

Counsels for Petitioners

• Abraham Vakkanal
• Roy P. KuriaKose
• Saji Kurichan
• M.R. Nandakumar
• Paul Abraham Vakkanal

Counsels for Respondents

• Government Pleader (Sri. P.N. Santhosh)

Case Synopsis & Summary

The Kerala High Court, Ernakulam, heard OP No.34607 of 2002 filed by two peons challenging the exclusion of peons from the promotion stream under the Kerala Panchayat Subordinate Services Rules, 1994. The petitioners, governed by the Kerala Panchayat Common Service Rules, 1977, presented material showing cent-percent tax collection for five consecutive years while serving as peons. Under the 1977 rules they could be considered for promotion to Junior Bill Collectors and, thereafter, to Lower Division Clerks, even without SSLC. The 1994 rules, however, restricted promotion to category 3 of group 2 to persons from the Junior Bill Collector cadre, effectively excluding peons like the petitioners. The petitioners argued this creates an anomaly and violates the spirit of merit-based consideration; they sought a declaration and rectification to align promotions with the prior practice of including meritorious peons with similar duties. The respondents contended that the new rules govern promotions and do not grant vested rights; while the court acknowledged that promotion is not a vested right, it is entitled to be considered for promotion under the rules. It noted an anomaly in excluding consistent high performers from eligibility. While declining to grant a declaration, the court directed the Government to examine the petitioners’ cases, rectify any anomaly, and render a decision within four months after affording opportunities to the petitioners and others, subject to due process."

Provisions of Law Cited

Kerala Panchayat Common Service Rules, 1977Kerala Panchayat Subordinate Services Rules, 1994Third proviso to Category 3 in Group 2 under the 1994 Rules

Legal Doctrines & Maxims

Vested rights concept
Right to be considered for promotion in accordance with rules is a right recognised in law
Anomaly in administrative rule changes

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners argued that under the Kerala Panchayat Common Service Rules, 1977, peons who had achieved cent percent tax collection for five years should be considered along with Junior Bill Collectors for promotion to Higher posts, including Lower Division Clerks, despite the lack of SSLC. They asserted an anomaly created by the 1994 Kerala Panchayat Subordinate Services Rules, which confined LD Clerks category 3 promotions to those from Junior Bill Collectors, thereby excluding meritorious peons. They relied on prior judgments and urged rectification to treat similar work and merit on par, ensuring substantive equality and merit-based advancement.

Contentions of Respondents

The respondents contended that the 1994 Rules supersede the older framework and that no vested right to promotion exists; decisions must be made according to the new rules. They emphasized the need for policy-driven changes and procedural fairness, while resisting a blanket declaration and instead endorsing a remedial consideration by the government.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
T.R.Kapur & Others v. State of Haryana & Others	1986 Suppl. SCC 584	Distinguished	The court notes vesting rights under existing rules do not automatically guarantee promotion and that those precedents are not directly applicable to the current facts; thus distinguished.
O.P.No.84C89 of 1995	Judgment dated 30/05/1997	Positive	Ext.P12 judgment is cited to support the petitioners' submission, indicating reliance on a favorable precedent.
O.P.No.10656/94R	Judgment dated 07/10/1994	Mentioned Only	Ext.P11 judgment is referenced but not explicitly used to support the court’s reasoning in the present decision.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN** **THURSDAY, THE 1ST NOVEMBER 2007 / 10TH KARTHIKA 1929** **OP.No. 34607 of 2002(T)** **------------------------------------** **PETITIONERS:** - **----------------------** **1. K.A.NAZAR, PEON,** **MOHAMMA GRAMA PANCHAYAT, ALAPPUZHA (KUNDATHIL, MANNANCHERY P.O., ALAPPUZHA).** **2. V.B.PUSHPAVALLY, PEON, THANNEERMUKAM GRAMA PANCHAYAT, ALAPPUZHA DIST.** **(KOOTHAKKARACHIRA, MUHAMMA P.O.)** **BY ADV. SRI.ABRAHAM VAKKANAL SRI.ROY P.KURIAKOSE** **SRI.SAJI KURIACHAN SRI.M.R.NANDAKUMAR SRI.PAUL ABRAHAM VAKKANAL** **RESPONDENTS:** **------------------------** **1. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY, LOCAL ADMINISTRATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM.** **2. THE DIRECTOR OF PANCHAYATS, THIRUVANANTHAPURAM.** **BY GOVERNMENT PLEADER SRI. P.N.SANTHOSH** **THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 01/11/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** _Kss_ ## **O.P.NO.34607/2002 T** ## **ORDER ON C.M.P.NO.58507/2002 IN O.P.NO.34607/2002 T** ## **DISMISSED** **1/11/2007 SD/-THOTTATHIL B.RADHAKRISHNAN,JUDGE** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXT.P1: COPY OF ORDER NO.E3.405/93 DTD. 23/09/93 OF THE DISTRICT PANCHAYAT OFFICER, ALAPPUZHA.** - **EXT.P2: COPY OF THE RELEVANT PORTION OF THE COMMON SERVICE RULES.** - **EXT.P3: COPY OF THE RELEVANT PORTION OF SERVICE BOOK.** - **EXT.P4: COPY OF RELEVANT PORTION OF SERVICE BOOK EVIDENCING 100% TAX COLLECTION FOR 5 YEARS FROM 89-90 TO 93-94.** - **EXT.P5: COPY OF THE PETITION DTD. 5/11/01 FROM THE PETITIONERS.** - **EXT.P6: COPY OF ..DO...DO.....** - **EXT.P7: COPY OF THE COMMON REPLY DTD. 30/11/2001 OF THE DY. DIRECTOR OF PANCHAYAT.** - **EXT.P8: COPY OF THE APPEAL DTD. 16/01/2002 OF 1ST PETITIONER FILED BEFORE THE 2ND RESPONDENT.** - **EXT.P9: COPY OF THE APPEAL DTD. 16/01/2002 of the 2ND PETITIONER FILED ...DO....** - **EXT.P10: COPY OF THE COMMON REPLY DTD. 17/10/2002 OF THE 2ND RESPONDENT.** - **EXT.P11: COPY OF JUDGMENT DTD. 7/10/1994 IN O.P.NO.10656/94R OF THIS HON'BLE COURT.** **EXT.P12: COPY OF JUDGMENT DTD. 30/05/1997 IN O.P.NO.84C89 OF 1995 OF THIS HON'BLE COURT.** - **EXT.P13: COPY OF GAZETTE DTD. 21/06/1994.** - **EXT.P14: COPY OF PROCEEDINGS OF THE DIST.COLLECTOR, ALAPPUZHA DTD. 02/09/2004.** **/TRUE COPY/** **P.A.TO JUDGE** _Kss_ ## **THOTTATHIL B.RADHAKRISHNAN, J.** ------------------------------------------- ## O.P.No.34607 OF 2002 ------------------------------------------Dated this the 1[st] day of November, 2007 ## **JUDGMENT** The petitioners were peons governed by the Kerala Panchayat Common Service Rules, 1977. They have materials with them to show that while serving as peons they were involved in collection of cheques and they also achieved cent percent collection for five years continuously. According to them, under the Rules of 1977, they were put along with Junior Bill Collectors for being considered for promotion as Bill Collectors, though without acquiring SSLC. With the commencement of the Kerala Panchayat Subordinate Services Rules, 1994, the promotion to Lower Division clerks in category 3 of group 2 is confined to be from Junior Bill Collectors and the peons are kept away from the zone of consideration. The petitioners contend that as on 16.8.1994, there were peons including the petitioners, who had achieved cent percent collection for five years continuously and therefore, there is an anomaly in excluding them from being considered along with OP.34607/02 ## Page numbers Junior Bill Collectors in terms of the third proviso to the method of recruitment prescribed for category 3 of group 2 of the Rules, 1994. 2. Relying on different judgments of the Apex Court commencing with that in **T.R.Kapur & Others** v. **State of Haryana & Others** [1986 Suppl. SCC 584], it was argued that a vested right accrued in terms of an existing service rule cannot be interfered with, adverse to the interest of the employee, by a subsequent amendment to the service rules and that, this is how the constitutional provisions relating to making of the service rules have to be understood. While the learned counsel for the petitioner is right in stating that vested rights ought not to be discharged, the right to promotion is not a vested right, while right to be considered for promotion in accordance with the rules is a right recognised in law. The case dealt with in the precedents are not directly applicable to the facts of this case. It is not the case of the petitioners that they had, as a matter of fact, earned promotion or higher grade on the basis of the Rules of 1977 and are facing demotion on account of the Rules of 1994. OP.34607/02 ## Page numbers Though a case of hostile discrimination in terms of the Constitution cannot be demonstrated, in my considered view, the petitioners have apparently shown that there is anomaly in excluding the peons who had achieved cent percent collection for five years continuously as on 16.6.1994 from the sweep of the third proviso to category 3 in group 2 of the 1994 rules, because, if the quality of work that was being carried out by the Junior Bill Collectors and the peons until then were the same and if both of those categories were working without acquiring SSLC and had achieved cent percent collection for five years continuously, the administration needs to look into the question whether the peons could be deprived of being treated along with the Junior Bill Collectors, particularly when it is pointed out that category of L.D. Clerk is nothing but a re-christening of the category of Bill Collectors. Secondly, it is also the case of the petitioners that the peons without SSLC would aspire at the best, to become L.D. Clerks and that too, only if third proviso of category 3 in group 2 is modulated to give them such a benefit. Ext.P12 judgment of this Court is also called on to support the OP.34607/02 ## Page numbers submission of the petitioner that the anomaly requires to be rectified. In the aforesaid circumstances, while refusing any declaration at the hands of this Court, the first respondent is hereby directed to consider the case of the petitioners as noted above and take such appropriate decision as may be found necessary to rectify any anomaly that needs to be cured, having regard to the facts and circumstances of the situation. A final decision shall be taken by the Government in this regard after affording an opportunity to the petitioners, by extending such opportunity to the first of them on behalf of others also. Such decision shall be rendered within an outer limit of four months from the date of receipt of a copy of this judgment. The petitioners will be at liberty to place further materials or representations before the first respondent in this regard. Sd/- ## **THOTTATHIL B.RADHAKRISHNAN, Judge** kkb. OP.34607/02 Page numbers ======================= THOTTATHIL B. RADHAKRISHNAN, J O.P.NO.34607 OF 2002 JUDGMENT 1ST NOVEMBER, 2007. =======================