K.P. Noufal v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH TUESDAY, THE 7TH DAY OF FEBRUARY 2017/18TH MAGHA, 1938 OP(KAT).No. 175 of 2016 (Z) ---------------------------AGAINST THE ORDER IN OA 1504/2016 of KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM PETITIONER(S)/APPLICANT: ----------------------- K.P.NOUFAL, DIRECTOR, VOCATIONAL HIGHER SECONDARY EDUCATION (VHSE), THIRUVANANTHAPURAM, S/O.K.P.MUHAMMADALI, AGED 35 YEARS, RESIDING AT HOUSE NO.140 CSM NAGAR, VELLAYAMBALAM, THIRUVANANTHAPURAM. BY ADVS.SRI.K.P.DANDAPANI (SR.) SRI.MILLU DANDAPANI SRI.ROSHEN.D.ALEXANDER RESPONDENT(S)/RESPONDENT: ------------------------- STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001. ## BY GOVERNMENT PLEADER SRI.N.MANOJ KUMAR THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 07-02-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(KAT).No. 175 of 2016 (Z) ---------------------------- ## APPENDIX ## PETITIONER(S)' EXHIBITS ----------------------- EXHIBIT P1 : TRUE COPY OF THE MEMORANDUM OF ORIGINAL APPLICATION OA (EKM) NO.1504/2016 ALONG WITH ITS ANNEXURES. EXHIBIT P2 : TRUE COPY OF THE INTERIM ORDER DATED 7-10-2016. EXHIBIT P3 : TRUE COPY OF THE REPLY STATEMENT DATED 19-10-2016 AND FILED ON BEHALF OF THE GOVERNMENT ON 20-10-2016. EXHIBIT P4 : TRUE COPY OF THE REJOINDER DATED 27-10-2016 WHICH WAS FILED ON 28-10-2016 ALONG WITH ITS ANNEXURE. EXHIBIT P5 : TRUE COPY OF THE ADDITIONAL REJOINDER FILED BY THE PETITIONER ALONG WITH ITS ANNEXURE. EXHIBIT P6 : TRUE COPY OF THE JUDGMENT DATED 8-12-2016 IN OA (EKM) NO.1504/2016 ON THE FILES OF THE KERALA ADMINISTRATIVE TRIBUNAL. RESPONDENT(S)' EXHIBITS:NIL ----------------------- //TRUE COPY// P.A.TO JUDGE ## **C.T. RAVIKUMAR & K.P. JYOTHINDRANATH, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - O.P.(KAT) No.175 of 2016** **- - - - - - - - - - - - - - - - - - - - - - - Dated this the 7[th] day of February, 2017** ## **J U D G M E N T** ## **Ravikumar, J.** This original petition carries challenge against the order of dismissal passed by the Kerala Administrative Tribunal in O.A (EKM). 1504/2016 filed against AnnexureA10 in Ext.P1 order cancelling appointment of the petitioner as Director, Vocational Higher Secondary Education (VHSE) and repatriation to his parent institution viz., N.A.M. College, Kannur. A brief narration of the background that culminated in the impugned order, is required for properly appreciating the said challenge. 2. According to the petitioner, his excellent curriculum vitae fetched him the post and though he had lawfully entered into the service he was unceremoniously ousted. The petitioner was appointed as an Assistant Professor in the Department of Computer Science in O.P.(KAT).175/2016 2 N.A.M. College, Kannur during the year 2009. While so, in the year 2011 he was appointed as a State Coordinator of State I.T. Mission and thereafter in 2013 he was appointed as Director, Centre for Continuing Education, on deputation basis. While on deputation he was put in additional charge of Educational Director of I.T. @ School and thereafter, during 2015 he was given additional charge of Director, State Institute of Education Technology. While working as Director, Centre for Continuing Education, on deputation basis the petitioner came to know that the post of Director, Vocational Higher Secondary Education (VHSE) fell vacant and thereupon, he submitted Annexure A-4 application dated 9.3.2015 directly to the Minister for Education, Government of Kerala seeking appointment against the said post. Annexure A4 application was forwarded by the Minister to the Principal Secretary, Education. The said fact was specifically stated in paragraph 10 of the original petition. Evidently, the Minister had forwarded the same with a note to examine the request with reference to the O.P.(KAT).175/2016 3 Special Rules of VHSE and to put up the same. Later, pursuant to Annexure A-7 decision of the Cabinet dated 16.4.2015 the petitioner was appointed as Director, VHSE under Rule 28A of the Kerala State & Subordinate Services Rules, 1958 (K.S. & S.S.R.) as per Annexure A-8 dated 20.4.2015. While continuing as such, Government have issued Annexure A10 order dated 7.10.2016 cancelling his appointment and repatriating him, to his parent institution viz. N.A.M. College, Kallikandy, Kannur, which is an aided college. It is challenging Annexure A-10 that the original application was filed which, as stated above, was dismissed as per Ext.P6 order dated 8.12.2016 by the Kerala Administrative Tribunal, Thiruvananthapuram. 3. We have heard the learned Senior Counsel Sri. K.P.Dandapani appearing for the petitioner and the learned Special Government Pleader Sri. Manoj. 4. The petitioner virtually reiterated the same grounds which were unsuccessfully raised before the Tribunal. The main ground of attack is that cancellation O.P.(KAT).175/2016 4 of appointment and consequential repatriation were ordered in blatant violation of the principles of natural justice. In elaboration of the said contention, it is submitted by the learned Senior Counsel that the circumstances under which the petitioner was appointed under Rule 28A of K.S. & S.S.R. has to be looked into. The contention is that while working on deputation as Director of Centre for Continuing Education he came to know that the post of Director, VHSE fell vacant and thereupon submitted Annexure A-4 application dated 9.3.2015. The Minister for Education to whom he submitted the said application thereupon forwarded the same to the Principal Secretary, Education with the note “please examine the request with reference to the Special Rules of V.H.S.E. relating to the qualification and method of appointment in consultation with Finance Department and put up it”. The learned senior counsel further submitted that thereupon the said file had passed through the hands of officers at various levels, as can be seen from Annexure A17 (Ext.P5). The learned senior O.P.(KAT).175/2016 5 counsel submitted that the said application on proper vetting, returned to the Minister for Education and before maturing into an order of appointment as Director, VHSE all obligatory and mandatory procedures were scrupulously followed. The learned senior counsel handed over copies of records obtained under the Right to Information Act in support of the said contention. However, we do not think it proper or necessary to peruse them as the learned Special Government Pleader made available the relevant files that culminated in Annexure A8 order (in Ext.P1) of appointment of the petitioner, dated 20.4.2015. It is the appointment made as per Annexure A8 that was cancelled as per Annexure A10 (in Ext.P1). 5. The challenge against the order of cancellation and consequent repatriation has two strands: firstly, it is contended that it was issued in blatant violation of the principles of natural justice; secondly, that Annexure-A10 contained no reasons for cancellation and they were supplied only through an affidavit and it is insufficient to O.P.(KAT).175/2016 6 make it a speaking order. Elaborating the first contention the learned senior counsel submitted that a perusal of Annexure A8 would reveal that the petitioner was appointed on regular basis under Rule 28A of Part II of K.S. & S.S.R. In such circumstances, abrupt termination of the petitioner from the office of Director, VHSE without issuing a show cause notice and affording an opportunity of being heard violated the salutary principle of natural justice and also it tantamount to arbitrary discrimination inasmuch as several others appointed in similar manner were permitted to continue in service, it is contended. It is also contended by the learned counsel that a perusal of Rule 28A of Part II of K.S.&S.S.R. would reveal that as regards the posts of Heads of Departments, direct recruitment could be resorted to in the absence of suitable persons for appointment by promotion or by transfer. The contention is that in such circumstances when the Government resorted to direct recruitment it cannot be said that the government had committed an illegality which warrants a correction at a later stage O.P.(KAT).175/2016 7 especially in view of the fact that the special rules framed for Vocational Higher Secondary Service did not contain provisions relating the method of appointment or requisite qualifications for the said post and even the executive order whereby the said post was created is silent on such aspects and thereby made promotion or by transfer appointment, impossible. 6. The learned Special Government Pleader resisted the contentions as mentioned above and submitted that it is not true to facts to say that the petitioner was regularly recruited to the post of Director, VHSE under Rule 28A of Part II of K.S.&S.S.R. It is the submission that a perusal of Annexure A9 Special Rules for Kerala Vocational Higher Secondary Education State Service Rules, 2004 (for short 'the Special Rules') would reveal that no specific provision has been incorporated therein with respect to the appointment to the post of Director. In fact, category-I under the 'Special Rules' is Deputy Director. It is the further contention that pending framing of special rules for appointment to the post of O.P.(KAT).175/2016 8 Director, VHSE appointment as against the said post was made only on deputation till the appointment of the petitioner under Annexure A8 dated 20.4.2015. It is also contended that even at the time of issuance of Annexure A8, no such special rules governing appointment to the said post were framed. It is submitted by the learned Special Government Pleader that the appointment was effected even before fixation of scale of pay of the post of Director. The learned Special Government Pleader submitted that it is worthwhile to note in this context that a clarification was sought for, by the Accountant General with respect to the scale of pay attached to the post of Director, VHSE. 7. At this juncture, the learned senior counsel for the petitioner submitted that a perusal of Annexure A8 would reveal that in the order of appointment of the petitioner dated 20.4.2015 as Director, VHSE the scale of pay was not specified though it was specifically mentioned therein that he would be on probation for a period of one year from the date of appointment and that O.P.(KAT).175/2016 9 his lien would be retained in N.A.M. College, Kallikandy in Kannur till the date of confirmation of service in the post of Director, Vocational Higher Secondary Education. It is also contended that a perusal of Annexure A8 would reveal that though the scale of pay was not specifically mentioned it is evident from therein that he was appointed on regular basis in the pay band of Grade II HOD in State Service. The learned Special Government Pleader resisted the contention of violation of principles of natural justice contending that when the very appointment of the petitioner is to be construed as a backdoor entry, owing to the failure to adhere to the constitutional mandate under Article 14 and 16 of the Constitution of India, especially in the absence of special rules or executive orders regulating the same and in such circumstances there would be nothing which could be described as illegal in showing such a person the same door for his exit from service. Such an appointee could not be heard to raise any grievance regarding violation of the principles of natural justice, it is further contended. O.P.(KAT).175/2016 10 8. It will be convenient for us to leave further discussion on the question of violation of principles of natural justice until we conclude consideration on the question as to whether the appointment was in tune with the legal scheme or in otherwords, whether the very appointment can be said to be on regular basis under Rule 28A of K.S.&S.S.R. and or whether it was made in violation of the constitutional scheme. This is because in the decision in **State of Manipur and Ors. v. Y. Token Singh & Ors. [(2007) 5 SCC 65]** the Hon'ble Apex Court held that the appointments in violation of constitutional and legal scheme, were non est and not binding on the State and in such circumstances principles of natural justice need not required to be complied with. Further it was held therein that such appointees had no right to continue in service, hence they could not seek for a writ of or in the nature of, mandamus. Further in the decision in **Aligarh Muslim University and Ors. v. Mansoor Ali Khan [(2000) 7 SCC 529]** the Hon'ble Apex Court held in agreement with its earlier decision in O.P.(KAT).175/2016 11 S.L. Kapoor v. Jagmohan Chinnappa Reddy [(1980) 4 SCC 379] that if upon admitted or indisputable facts only one conclusion was possible, then in such a case, the principle that breach of natural justice was in itself prejudice, would not apply. In otherwords it was held that if no other conclusion was possible on admitted or indisputable facts, it would be unnecessary to quash the order which was passed in violation of natural justice. Therefore, it is evident that the question of violation of principles of natural justice need be addressed only if we are arriving at a conclusion that the entry of the petitioner to the service as Director, VHSE was not through the backdoor and that his appointment was not made in violation of the constitutional on legal scheme. 9. Before considering the sanctity and legality of the appointment of the petitioner as Director, VHSE it is only worthwhile to refer to Rule 28A of Part II of the K.S. & S.S.R. It reads thus: Notwithstanding anything contained in these rules or in the Special Rules, in the case of appointment to the posts of Heads of Departments, direct recruitment shall O.P.(KAT).175/2016 12 be resorted to in the absence of suitable persons for appointment by promotion or by transfer. Appointment by promotion or by transfer shall be made on the basis of merit and ability, seniority, being considered only when merit and ability are approximately equal. Merit and ability shall be assessed by the authority competent in the Government to make such appointments: Provided that the lists for consideration for appointment by promotion or by transfer to the posts shall not ordinarily consist of members of service who do not have at least one year of service before the date of their superannuation after appointment to such a post. 10. Thus, a scanning of the provisions under Rule 28 A of Part II of K.S. & S.S.R would reveal that in the case of appointment to the post of Heads of Departments, direct recruitment shall be resorted to only in the absence of suitable persons for appointment by promotion or by transfer. The Rule further provides that appointment by promotion or by transfer shall be made on the basis of merit and ability, seniority being considered only when merit and ability are approximately equal. In this context it is also relevant to note that it is the common case and in fact, the indisputable position, that though the Special Rules have been framed as Kerala Vocational Higher Secondary Education State Service O.P.(KAT).175/2016 13 Rules 2004, the post of Director was not included thereunder. Annexure A9, the copy of the Special Rules provides the constitution of the said service. It says, the service shall consist of the following categories of officers namely:- Category 1-Deputy Director, Category 2- Assistant Director, Category 3-Technical Officer, Category 4-Research Assistant/Placement Officer, Category 5-Vocational Teacher in different disciplines and Category 6-Non Vocational Teacher in different disciplines. Going by the Special Rules Category 1 in the Kerala Vocational Higher Secondary Education State Service includes only one category i.e. Deputy Director. At the same time, it is to be noted that it is not as if the said post of Director, VHSE was not created. In fact, the said post was created under an Executive Order viz. G.O. (M.S.)No.68/85/Gl dated 1.4.1985, much prior to the framing of the Special Rules. Nonetheless, even at the time of framing of Special Rules for Vocational Higher Secondary Education State Service no thought was seen spared for incorporating provisions for including the post O.P.(KAT).175/2016 14 in its service and prescribing the method of appointment and qualification as regards the said post. But it is the common case that unto the appointment of the petitioner appointment was being effected against the said post, pending framing of rules, on deputation basis. 11. The learned senior counsel appearing for the petitioner contended that this Court would not be justified in considering the question whether the entry of the petitioner was through the back door. It is contended that Annexure-A8 order whereby the petitioner was appointed as Director, VHSE was not under challenge at any point of time and in such circumstances, it is absolutely unessential and unwarranted for this Court to consider the legality of the appointment of the petitioner. On the other hand, the learned Special Government Pleader submitted that when the petitioner raises grievance against the order of cancellation of his appointment as Director, VHSE and consequential repatriation to his parent institution on the ground that it O.P.(KAT).175/2016 15 was done in violation of the principles of natural justice, it is essential rather, inevitable to consider the question whether his entry was through back door or not. In otherwords, it is contended that without deciding as to how the petitioner made his entry into the service, in the light of the decisions referred (supra), the question whether principles of natural justice need to have been complied with or not, cannot be decided. It is submitted that going by the decisions in **Token Singh** 's case and **Mansoor Ali Khan** 's case (supra), in a case where a person entered the service without being subjected to the regular method of appointment or in violation of the constitutional mandate through back door, he could not have a legal right to complain about the violation of principles of natural justice in case of his termination without notice and without being afforded with an opportunity of being heard. In the light of the decision in **Token Singh** 's case and **Mansoor Ali Khan** 's case, we are of the view that when the very grievance of the petitioner is that principles of natural justice was not O.P.(KAT).175/2016 16 complied with before terminating him from service and when the contention taken by the respondents to resist the said contention is that the very appointment of the petitioner was through back door and therefore, it need not be complied with, this Court has no option but to consider the question as to how the petitioner got appointed as Director, VHSE to decide whether it was made in violation of the constitutional or legal scheme and in turn, to decide whether non-compliance with the principles of natural justice is fatal enough to render the order of termination illegal and liable to be interfered with. 12. The very Directorate of Vocationalisation was set up pursuant to a recommendation by the National Council for Education and Research Training. Though the Department of Higher Secondary Education was formed in the year 1984, a separate Directorate was created as per G.O(MS).No.68/85/G1 Edn. dated 1.4.1985. The said G.O would reveal that it commenced its functioning with the following staff pattern:- O.P.(KAT).175/2016 17 Sl.No. Post Scale of Pay No. of posts |1.|Director of Vocational||| |---|---|---|---| ||Secondary Education|Rs.1300-1900|1| |2.|Senior Superintendent|Rs.650-1150<br>|4| |3.|Clerks<br>|Rs.330-515<br>|2| |4.|Typists<br>|Rs.330-515<br>|2| |5.|Stenographer/||| ||Confidential Asst.<br>|Rs.350-730<br>|1| |6.|Last grade servants<br>|Rs.280-400<br>|3| |7.|Watchman<br>|Rs.280-400<br>|1| |8.|Driver<br>|Rs.310-490<br>|1| |9.|Sweeper (Part-time)<br>|Rs.<br>|1| Going by paragraph 6 therein, the staff for the Directorate were to be appointed by deputation from the General Education Department/Technical Education Department. It was long later that the Special Rules were framed and brought into force from 12.3.2004. Rule 2 of the Special Rules deals with the constitution of various categories of officers noticed hereinbefore. It would reveal that even in the Special Rules, the method of appointment, qualification etc. with respect to the appointment to the post of Director have not been prescribed and in fact, even in the hierarchy of posts, the post of Director was not specifically included though it was created as far back in the year 1985. In the O.P.(KAT).175/2016 18 contextual situation, it will not be inappropriate to refer to the explanatory note to the Special Rules and it reads thus:- “The Department of Higher Secondary Education was formed in 1983-'84. Appointment to various categories of posts in the Department are made on deputation and on provisional basis. It has become necessary to prescribe qualification, method of appointment etc. to the various posts in the Department so as to make regular appointments thereto. This has necessitated issuance of special rules. Thus notification is intended to achieve the above object.” (underline supplied) Though the intention revealed from the explanatory note for the issuance of special rules is to prescribe qualifications, method of appointment to various posts in the Department so as to make regular appointment thereto, under what circumstances posting of Director was not included or excluded as a category in the Special Rules? The explanatory note would also reveal that till the formation of the Special Rules, appointment to O.P.(KAT).175/2016 19 various posts in the Department were being made on deputation and on provisional basis. Paragraph 6 of the G.O dated 1.4.1985 would reveal that appointment by deputation from General Education/Technical Education was to be effected to fill up the posts created thereunder. Evidently, one of the posts to be filled up as per G.O. dated 1.4.1985 was the post of Director of VHSE. 13. Now, we will also refer to the very case of the petitioner revealed from the pleadings in the O.A, in this original petition and also from Annexure-A4. AnnexureA4 is admittedly the application submitted by the petitioner to the Minister of Education, dated 9.3.2015. The last paragraph in the application, insofar as it is relevant, reads thus:- It is now reliably learned that the post of Director, Vocational Higher Secondary Education Department is now filled up on deputation basis only and I would like to apply for the post of Director, Vocational Higher Secondary Education Department on a permanent basis, terminating my lien at the NAM College, Kannur. Considering my experience and competency in the present and past assignments in O.P.(KAT).175/2016 20 Government, I humbly request that my application for the post may be considered favourably, if my candidature is found suitable for the post. My detailed bio-date is enclosed. (emphasis added) 14. As noticed hereinbefore, it is the consideration of Annexure-A4 application that culminated in AnnexureA8 order of appointment dated 20.4.2015. The opening paragraph in Annexure-A8 also assumes relevance. It reads thus:- “The Special Rules for Kerala Vocational Higher Secondary Education State Service have been issued vide G.O read as 1[st] Paper above. Since there are no rules prescribed for qualification and method of appointment to the post of Director, Vocational Higher Secondary Education, the method being followed hitherto is to make appointment to the above post on deputation basis from other departments on a temporary basis.” (emphasis added) 15. At the very outset, it is to be noted that there is absolutely no case for the petitioner that for the purpose of effecting appointment to the post of Director, VHSE, O.P.(KAT).175/2016 21 applications were called for and he had only responded to such notification. At the same time, materials on record as also the precise case of both sides, will reveal that the procedures that culminated in the appointment of the petitioner vide Ext.A8 commenced with the submission of Annexure-A4 application by the petitioner directly to the Minister for Education, Kerala. Interestingly, what is stated therein is that he learnt that the post of Director, VHSE was being filled up on deputation basis only. Nonetheless, he specifically sought for appointment against the said post on permanent basis under Annexure-A4. The materials on record will reveal that at the time of submission of the application for appointment to the said post, the petitioner was aged only 34 years and he was then having the following qualifications:- “M.Sc. (Computer Science) in 1[st] class. M.Phil (Computer Science) in 1[st] class.” It will also reveal that the petitioner who was an Assistant Professor, Department of Computer Science in NAM O.P.(KAT).175/2016 22 College, Kannur, was then on deputation as Director of Centre for Continuing Education, Kerala. It will not be apropos to refer to the method of appointment and qualification prescribed for appointment to the post of Deputy Director which is category No.1 as per the Special Rules. Going by the Special Rules, first method of appointment for the said post is by promotion and the qualifications therefor, is possession of minimum 5 years service in the cadre of Assistant Director. Only in the absence of qualified persons, direct recruitment is permissible under the Special Rules and the qualification of experience therefor, is as follows:- **“** Minimum 20 years service of which at least 5 years service in an Administrative post not below the rank of Assistant Director, Vocational Higher Secondary Education Department in Government services.” 16. It is also to be noted that going by Rule 5, for appointment to the post of Deputy Director, under direct recruitment, the minimum age limit prescribed is 42 years and the maximum age limit is 50 years. While O.P.(KAT).175/2016 23 considering the purpose for creation of separate Directorate for VHSE, it is relevant to refer to a decision of the Hon'ble Apex Court in **State of Orissa and another v** . **Mamata Mohanty** reported in **(2011) 3 SCC 436.** The Apex Court considered and held what exactly is the meaning of the term 'Education'. It was observed that education is the systematic instruction, schooling or training given to the young persons in preparation for the work of life and it connotes the process of training and developing the knowledge, skill, mind and character of students by formal schooling. Therefore, it is necessary to maintain a high academic standard and academic discipline along with academic rigour for the progress of the nation and democrazy depends for its on survival on a high standard of vocational and professional education. Furthermore, the Apex Court held that excellence of instruction provided by an educational institution mainly depends directly on excellence of teaching staff. In view of the aforesaid conclusions and observations, we are of the considered O.P.(KAT).175/2016 24 view that the Directorate of Vocational Higher Secondary Education is created to achieve the aforementioned purposes and therefore, the pivotal post of its Director should be filled up by scrupulous adherence to the constitutional mandate to achieve such purposes especially in view of the absence of Special Rules or executive orders prescribing method of appointment and qualification in regard to the post of Director, VHSE. There cannot be any doubt with respect to the position that in the matter of public employment, Articles 14 and 16 of the Constitution cannot be given a go-by. The requirement of strict adherence to the constitutional mandate under Articles 14 and 16 was emphasised by the Apex Court in **Token Singh** 's case (supra) and held that appointments in violation of the recruitment rules would make such appointments non est. 17. In the decision in **Mamata Mohanty** 's case (supra), the Hon'ble Apex Court held that orders, circulars or letters violative of statutory provisions and constitutional mandate are just to be ignored by a court O.P.(KAT).175/2016 25 and at any rate such orders could not be the basis for claiming any right or benefits. The Apex Court further held that every action of the State or its instrumentalities should not only be fair, legitimate and above board but should be without any affection or aversion. It was also held therein that it should neither be suggestive of discrimination nor even give an impression of bias, favouritism and nepotism and that in the matter of public employment, constitutional mandate contained under Article 14 and 16 of the Constitution of India are to be followed without fail. In this case, as noticed hereinbefore, despite the framing of Kerala Vocational Higher Secondary Education State Service Rules 2004, no provision was incorporated therein to regulate the method of appointment and qualification as relates the post of Director, VHSE. We need not probe into the wisdom of the legislature in deferring the legislation in that regard despite the fact that it was the first post created in the Directorate of Vocational Higher Secondary Education as far back in the year 1985 under O.P.(KAT).175/2016 26 Government Order dated 1.4.1985, referred to hereinbefore. 18. We have also taken note of the explanatory note to the Special Rules which, in unequivocal terms, makes clear the purpose of framing the rules. Going by the same its purpose is to enable or to prescribe qualifications, method of appointment to various posts in the department so as to make regular appointments thereto. The explanatory note also makes it clear that appointment to various categories of posts in the department were being made on deputation or provisional basis. Annexure A8 order also reveals the position that from the very inception of the Directorate till the issuance of the said order dated 20.04.2015, appointing the petitioner to the post of Director, VHSE, it was being effected only on deputation basis from other departments on a temporary basis, in the absence of framing of Rules prescribing qualification and method of appointment. 19. As already stated, the entire records that O.P.(KAT).175/2016 27 culminated in the appointment of the petitioner under Annexure A8 were made available by the learned Government Pleader, for our perusal. Even after going through the same, we could not find any reason or material revealing a conscious decision taken to change the prevalent stand of filling up of the post of Director, by deputation at one stroke, in the absence of rules prescribing the method of appointment and qualification merely because the petitioner had offered himself for regular appointment. As noticed hereibefore, the undisputed factual position would reveal that, unto the appointment of the petitioner in and vide Annexure A8 appointment order, the post of Director, VHSE was being made on deputation basis. We have already taken note of the fact that the explanatory note in the Special Rules would make it clear that prior to the framing of the special rules appointment to various categories in the department were being made only on deputation or provisional basis. True that there is no inviolable position that a post could be created and filled up only after O.P.(KAT).175/2016 28 framing rules therefor. It is in the meanwhile that the petitioner on coming to know about the occurrence of the vacancy in the post of Director, VHSE, offered himself for regular appointment by submitting Annexure A4 application directly to the Minister for Education. To put it briefly, on going through the file we do not find any sustainable and justifiable ground for violating the constitutional mandate in the matter of effecting the said public employment. 20. The learned Senior Counsel submitted that a bare perusal of the records would reveal that after Annexure-A4 was forwarded for examination with reference to the Special Rules of VHSE relating the qualification and method of appointment and it passed through the hands of different authorities under various levels and it is only after strict vetting that it again reached the Minister for Education. It can only be a cavil as what purpose could have been achieved by forwarding an application seeking regular appointment as Director, VHSE to be scrutinised with reference to the O.P.(KAT).175/2016 29 Special Rules of VHSE when the indisputable position is that hitherto, the method of appointment and qualification were not prescribed by framing Special Rules and before consideration of the said application a conscious decision was not taken to fill up the post of Director, on regular basis, even in the absence of prescription of method of appointment and qualification as relates the said post. Annexure A7 would only reveal that on 16.4.2015, a decision was taken by the cabinet to appoint the petitioner as Director, VHSE. In such circumstances, the question is whether merely because an application directly received by the Minister was forwarded for examination and it passed through the hands of different officers under various levels, the appointment that culminated pursuant to the submission of such an application viz., Annexure A4 can be said to be an appointment effected in accordance with the Rules or in conformity with the Constitutional Scheme ? 21. In view of the factual and legal position obtained the question is what exactly is the nature of O.P.(KAT).175/2016 30 appointment of the petitioner. True that in Annexure-A8, it is stated that the appointment was made under Rule 28 A of Part II of KS & SSR. Going by Rule 28 A of KS & SSR, notwithstanding anything contained in the Rules or in the special rules, in the case of appointment to the posts of Heads of Departments direct recruitment shall be resorted to in the absence of suitable persons for appointment by promotion or by transfer. Thus, it is obvious that even under Rule 28 A of Part II of KS & SSR, direct recruitment is permissible only in the absence of suitable persons by promotion or by transfer. Certainly, in the absence of prescription of qualification and method of appointment and above all without making the said post available for filling up by promotion or by transfer, in accordance with law, it would not be possible to find out whether suitable persons are available in the feeder category of the department for promotion or in any other department for resorting to such methods of appointment. In other words, the question of availability of such eligible candidates for promotion or by transfer O.P.(KAT).175/2016 31 appointment could have been ascertained only after framing necessary rules prescribing qualification and method of appointment. But at the same time, the indisputable position is that it was being filled up till the appointment of the petitioner, on deputation basis. Nothing is also available on record revealing a decision not to go for deputation any further and to fill up the post on regular basis even in the absence of rules prescribing the method of appointment and qualification, for the post. Therefore, the question is whether the appointment of the petitioner in the aforesaid manner could be styled strictly as a direct recruitment effected in conformity with Rule 28 A of Part II of KS &SSR. Rule 5 of Part I of KS & SSR deals with method of recruitment. Going by Rule 5 (b) therein, a person shall be recruited direct only against a substantive vacancy in such permanent cadre, and only if the vacancy is one which should be filled by a direct recruit under the special rules referred to in clause (a) . Rule 2(16) of Part I, KS & SSR defines 'Special Rules'. Going by the same 'Special Rules' mean the rules in Part O.P.(KAT).175/2016 32 III applicable to each service or class of service. 22. The term 'Recruited direct ' was defined under Rule 2(12) of Part I, KS & SSR as hereunder : “ (12) A candidate is said to be “recruited direct” to a service, class, category or post when, in case the appointment has to be done in consultation with the Commission, on the date of the notification by the Commission inviting applications for the recruitment, and in any other case, at the time of appointment. (i)he is not in the service of the Government of India or the Government of a State; or (ii)being in the service of the Government of India or the Government of a State, he satisfies all the qualifications (including age) and other conditions prescribed for such recruitment to that service, class, category or post and is permitted to apply for such recruitment by the competent authority; or (iii)he holds a post, the conditions of service of the holder of which have been declared to be matters not suitable for regulation by rule.” 23. In such circumstances, a conjoint reading of Section 5 (b) of Part I of KS & SSR and Rule 28 A of Part II of KS & SSR bearing in mind the definitions of the O.P.(KAT).175/2016 33 terms 'Special Rules' and 'Recruited direct' would make it clear that the term “direct recruitment” employed under Section 28 A of Part II of KS & SSR cannot be understood in a different manner, when in what manner and what circumstances direct recruitment could be and should be effected has been specifically mentioned under Rule 5 (b) of Part I of KS & SSR. True that it could be contended that going by the non-obstante clause in Rule 28 A of Part II, KS & SSR direct recruitment could be effected notwithstanding anything contained in KS & SSR or in the Special Rules appointment to the posts of Heads of Departments could be effected in terms of Rule 28 A itself, it shall be resorted to in the absence of suitable persons for appointment by promotion or by transfer. Eventhough it could be contended that in the absence of Special Rules or executive orders falling within the purview of Rule 10 (a) (i) of Part II, KS & SSR or issued under Article 162 of the Constitution of India it would not be possible to make an endeavour to find whether suitable persons for appointment by promotion or by O.P.(KAT).175/2016 34 transfer are available, that by itself could not be reason or justification for violating the constitutional mandate for public employment. So also, when it is said that what was effected is an appointment under Rule 28 A of Part II, KS & SSR it is bound to be a 'direct recruitment' as contemplated under Rule 28 A. In such circumstances, to understand whether it was a 'direct recruitment' the meaning of the term 'Recruited direct' must be looked into. We have already adverted to Rule 5(b) of Part I, KS & SSR. It permits direct recruitment only against a substantive vacancy in such permanent cadre and that too only if the vacancy is one which should be filled up by a direct recruit under the special rules. When there is no special rules and when it is evident that this post was created only as per Government Order dated 1.4.1985 the question is whether it could be treated as an order partaking the character of executive order or standing order referred to under Rule 10(a) (i) of Part II of the KS & SSR. So long as it is not an order prescribing the qualifications for the post of Director, VHSE it cannot be O.P.(KAT).175/2016 35 construed as an order falling within the purview of Rule 10 (a) (i) of Part II of KS & SSR. It can only be taken as an order creating the post of Director, VHSE and such other posts. A perusal of the G.O. Dated 1.4.1985 would reveal that educational or other qualifications required for the post of Director, VHSE are not specified thereunder and at the same time, paragraph 6 therein contemplates appointment of staff for the Directorate only by deputation from the General Education Department/Technical Education Department. 24. The question of filling up a post by direct recruitment by applying Rule 28A would not arise in the light of Rule 5 (b) of Part II of KS & SSR, if no substantive vacancy exists in a permanent cadre to be filled up by direct recruitment under the Special Rules referred to in Clause (a) of Rule 5. In the contextual situation it is relevant to refer to a Single Bench decision of this Court in **Narayanan v. State of Kerala ( 1993 (1) KLT 461)** and in **Sasi v. State of Kerala ( 2004 (2) KLT 778)** . Going by the decision in **Narayanan** 's case (supra) Rule O.P.(KAT).175/2016 36 28 A is an enabling provision which would enable the Government to resort to direct recruitment in case no suitable hand was available for promotion or transfer. In **Sasi** 's case (supra), this court held that merely because a qualified competent and eligible person is available in the State Service, the Government is not bound to promote and appoint him as Head of Service as per the Special Rules if he is not suitable for the post. Suitability in service parlance is not the mere qualification, competence and eligibility, it necessarily partakes an element of desirability in larger public interest. True that both the said decisions were rendered while dealing with appointment of All India Service Officers to state posts under Rule 37 of KS & SSR. There is no case for the parties that the appointment of the petitioner as Director, VHSE was made as per Annexure-A8 adhering to constitutional mandates under Articles 14 and 16 of the Constitution of India. True that in Annexure-A8 order it is stated that the appointment of the petitioner as Director, VHSE is on regular basis. O.P.(KAT).175/2016 37 25. In the case of an appointment on regular basis by direct recruitment, necessarily there should be a notification in case the appointment has to be done in consultation with the commission and an advertisement followed by a regular selection and then followed by an order of appointment by the appointing authority. Even if it is not such a post it would not make it non-public employment. In this case it is nobody's case that the vacancy occurred in the post of Director, VHSE was notified. The indisputable position reveals from the record is to the effect that on coming to know about the occurrence of the said vacancy, the petitioner submitted Annexure A4 for regular appointment. 26. Taking into account all the aforesaid provisions, facts and factors we are of the considered view that though the words 'regular basis' was employed in the order of appointment, it cannot be said that the appointment of the petitioner was effected on a regular basis in accordance with any rules or in compliance with constitutional mandates. In the matter of public O.P.(KAT).175/2016 38 employment, an appointment in derogation of the constitutional mandate under Article 14 and 16 cannot be resorted to solely because special rules or executive order regulating recruitment are not available. When a vacancy, that too of a higher post, in any service fell vacant how can it be filled up on a permanent basis without adhering to any recognized procedures and above all, in total disregard to the Constitutional mandate under Articles 14 and 16 of the Constitution of India. The post of Director, VHSE could not be said to be filled up strictly resorting to Rule 28 A, Part II of the KS & SSR, as held earlier. Merely because of the existence of a provision like Rule 28 A it cannot be a reason or ruse to effect public employment in a manner resorted to in the case on hand. There is no case for the petitioner, in that matter anything, revealing from the records that considering the petitioner's brilliance and expertise he was offered the post by the Government, if at all it can be so done. Admittedly, the process of appointment commenced with the submission of an application for O.P.(KAT).175/2016 39 appointment on regular basis, by the petitioner himself. How he came to know about the existence of a vacancy and how, a post which was being filled up only on deputation basis due to the non-framing of method of appointment and qualification was decided to be filled up, on regular basis, simply because the petitioner applied for appointment on regular basis ? Nothing is forthcoming from the records. 27. The upshot of the aforesaid discussions would lead to the irresistible conclusion that the appointment of the petitioner cannot be said to be one made in accordance with any recognized procedures or in compliance with the constitutional mandates under Articles 14 and 16 of the Constitution of India. In the matter of public employment, submission of application directly to the Minister of a particular portfolio is unheard of, unacceptable and unsustainable. In such circumstances, when such an application for regular appointment is submitted directly to the Minister holding the said portfolio concerned merely because it O.P.(KAT).175/2016 40 was forwarded for examination and it went through different hands of officers at different levels, such factors could not and would not legalize the procedures which culminated in the order of appointment based on such an application. Viewing at any angle, we are of the considered view that the appointment given to the petitioner under Annexure A8 based only on Annexure A4 application submitted by him directly to the Minister cannot be said to be a regular appointment in accordance with law or an entry to the concerned department through the front door. When that be so, it can only be styled as a back door entry. In the light of the decisions referred to hereinbefore of the Hon'ble Apex Court, there can be absolutely no doubt with respect to the position that a person who entered in to a particular service through the back door has to make his exit through the same door. In such circumstances, the person who makes such an entry cannot be heard to contend that he is legally entitled to seek for issuance of a writ of mandamus in his favour or to raise any grievance O.P.(KAT).175/2016 41 regarding failure to comply with the principles of natural justice. The exposition of law by the Hon'ble Apex Court in Tokes Singh's case would make the position clear that in such circumstances such a person cannot complain regarding non-compliance with the principle of natural justice. The reliefs sought for, in the original petition would reveal that the petitioner seeks for quashment of the orders passed by the Tribunal declining to interfere with Annexure A10 order and dismissing the O.A. The power of judicial review exercisable against an order passed by the Tribunal under Article 227 of the Constitution of India cannot be exercised unless it is found that the findings of the Tribunal is so perverse or illegal or permitting their continuance would result in manifest injustice. We do not find any such reasons inviting an interference with the order of dismissal of the O.A. passed by the Tribunal. On a careful perusal of the impugned order passed by the Tribunal, we are of the considered view that all the relevant facts and factors were considered by the Tribunal for arriving at the O.P.(KAT).175/2016 42 conclusion that the appointment of the petitioner cannot be sustained. Resultantly, this original petition is liable to fail. 28. While we are about to part with the judgment by passing an order of dismissal, the learned Senior counsel made a submission that orders may be passed as to how the period the petitioner spent as Director of VHSE rather, his absence in his regular post of Assistant Professor should be treated on his repatriation to his parent institution viz., NAMS College, Kannur which is an aided college. The learned Senior Counsel contended that the petitioner cannot be found fault with in making an application for getting appointment as Director of VHSE. It is submitted that if no orders are issued with respect to the manner as to how the said period should be reckoned and regularised it might create a break in service of the petitioner and in such eventuality, there would be a chance of the petitioner being denied all the consequential benefits. In this context, it is to be noted that realizing the fact that the petitioner is not a member O.P.(KAT).175/2016 43 of any Governmental service or a statutory body, the Government have already deputed him as the Director of Centre for Continuing Education. He was deputed as such in the year 2013. Evidently, it was while continuing in the said post that he submitted Annexure A4 application which ultimately culminated in Anexure A8 order of appointment as Director, VHSE. Now, that the petitioner was ordered to be repatriated to his parent institution viz., NAMS College, Kannur we find absolutely no reason or justification not to allow the petitioner to join there and to grant him all other admissible benefits as if he had been continuing there, in the post of Assistant Professor on repatriation on termination of deputation. Needless to say that if granting of any such benefits, consequential to his re-joining in the post, would adversely affect any other person, admissibility of consequential benefits shall be decided only with notice to such party/parties likely to be affected by the grant of consequential benefits to the petitioner. But, certainly, that shall not be a reason for not permitting the O.P.(KAT).175/2016 44 petitioner to join in his parent institution. Needless to say that it would only be in the interest of justice that the authority competent shall pass appropriate orders on his repatriation to his parent institution on such aspects in such a manner to avoid occurrence of any break in the service of the petitioner. 29. The learned Senior Counsel also submitted that treating the petitioner as a person who attempted to gain something unauthorizedly or gained back door entry into the service to the post of Director, VHSE may ultimately haunt him during the rest of his career and also his further prospects. It is submitted that as an aspirant for bright prospects, the petitioner did make an application for getting the post of Director, VHSE. True that, the same was accepted and acted upon and it culminated in his appointment as the Director of Vocational Higher Secondary Education. Taking note of the fact that the petitioner is aged only 35 years and that the records would reveal that he is a talented youngster, we make it clear that we have employed the expression that his O.P.(KAT).175/2016 45 appointment was a back door entry as regards the post of Director, VHSE, for the purpose of deciding the case on hand, in accordance with law, and taking note of the manner in which he was inducted into the service. Certainly, he had not actually committed blameworthy action other than putting an application directly to the Minister for appointment to the post of Director, VHSE. In such circumstances, there is absolutely no reason or basis for the said apprehension. Subject to the above observation and direction, this original petition is dismissed. **Sd/C.T. RAVIKUMAR (JUDGE)** **Sd/K.P.JYOTHINDRANATH (JUDGE)** ## **shg/spc/sv**