N. Ratheesh Kumar and A. Thankachan v. State of Kerala and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN THURSDAY, THE 4TH DAY OF AUGUST 2016/13TH SRAVANA, 1938 OP(KAT).No. 279 of 2015 (Z) ---------------------------AGAINST THE ORDER/JUDGMENT IN OA 504/2015 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM DATED 17.6.2015 PETITIONERS : |PETITIONERS :|PETITIONERS :| |---|---| |-------------|| |1.|N.RATHEESH KUMAR,| ||AGED 38 YEARS,| ||OFFICE ATTENDANT, SUB REGISRAR OFFICE,| ||SASTHAMANGALAM, THIRUVANANTHAPURAM,| ||S/O NATARAJ PILLAI, RESIDING AT KEDARAM,| ||NEAR AMMANKOVIL, NEDUMANGAD-695 541.| |2.|A. THANKACHAN,| ||AGED 49 YEARS,| ||OFFICE ATTENDANT,| ||AMALGAMATED SUB REGISTRAR OFFICE, MALAPPURAM,| ||S/O ALPHONSE RESIDING AT 'TINU', MANAGADU P.O.,| ||KOLLAM -691 015.| ||BY ADV. SMT.MARY BENJAMIN| |RESPONDENTS|:| |--------------|| |1.|STATE OF KERALA,| ||REPRESENTED BY THE SECRETARY TO GOVERNEMNT,| ||DEPARTMENT OF PERSONAL AND ADMINISTRATIVE REFORMS,| ||GOVERNEMNT SECRETARIAT, THIRUVANANTHAPURAM-695 001.| |2.|STATE OF KERALA,| ||REPRESENTED BY ITS SECRETARY TO GOVERNEMNT,| ||DEPARTMENT OF TAXES, GOVERNMENT SECRETARIAT,| ||THIRUVANANTHAPURAM-695 001.| |3.|THE INSPECTOR GENERAL OF REGISTRATION,| ||THIRUVANANTHAPURAM OFFICE OF THE INSPECTOR,| ||GENERAL OF REGISTRATION, VANCHIYOOR PO,| ||THIRUVANANTHAPURAM-PIN-695 035.| R1-R3 BY GOVERNMENT PLEADER SRI.BIJOY CHANDRAN THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 04-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(KAT).No. 279 of 2015 (Z) ------------------------- ## APPENDIX ## PETITIONERS' EXHIBITS :- ----------------------EXT.P1: TRUE COPY OF THE ORDER IN OA (KAT) NO. 504/15. EXT.P2: TRUE COPY OF THE OF THE OA (KAT) NO. 504/15. EXT.P3: TRUE COPY OF THE ORDER DT. 20/6/15 OF THE GOVERNMENT. RESPONDENTS' EXHIBITS :- NIL. -------------------- True copy P.A to Judge ## **P.R. RAMACHANDRA MENON & ANIL K. NARENDRAN, JJ. ---------------------------------O.P.(KAT)No.279 of 2015 ----------------------------------Dated this the 4[th] day of August, 2016** ## **JUDGMENT** Anil K.Narendran, J. The petitioners, who are Last Grade Employees in the Registration Department, has filed this Writ Petition aggrieved by Ext.P1 order dated 17.6.2015 passed by the Kerala Administrative Tribunal in O.A.(EKM)No.504/2015. The petitioners, who are Office Attendants in the Registration Department, have filed the said OA seeking for a declaration that Clause 2(ii) of Annexure A2 Government order is patently illegal, arbitrary and not sustainable in the eye of law. The petitioners have also sought for an order to quash Annexures A2 and A5 and also a direction to the respondents to prepare state-wise seniority list of Office Attendant/Last Grade Servants in the Registration Department, for effecting the next promotion to the post of Lower Division Clerk/Lower Division Typist in terms of Annexure A1 Government order. 2. Before the Tribunal the reliefs sought for in the OA O.P.(KAT)No.279 of 2015 2 were opposed by the respondents. After considering the rival contentions the Tribunal by Ext.P1 order dated 17.6.2015 rejected the reliefs sought for in the OA, holding that the stand taken by the Government in Annexure A5 order cannot be said to be irrational. Feeling aggrieved by Ext.P1 order passed by the Tribunal the petitioners/applicants are before this Court in this Original Petition. 3. We heard the arguments of the learned counsel for the petitioners/applicants and also the learned Senior Government Pleader appearing for the respondents. 4. The pleadings and materials on record would show that the applicants entered service as Last Grade Servants in the Registration Department. The date of entry of the 1st applicant as Office Attendant is 25.11.1999. The 2nd applicant has also entered service as Office Attendant, in the year 1996. As per Annexure A1 Government order dated 3.1.2014, 10% of the vacancies in the cadre of LD Clerk/LD Typist are reserved for bytransfer appointment from the last grade servants/low paid employees in the subordinate service of the respective O.P.(KAT)No.279 of 2015 3 Departments, subject to the eligibility conditions stipulated therein. Later, as per clause 2(ii) of Annexure A2 Government order dated 19.7.2014 it was clarified that such appointments shall be district-wise. 5. The grievance of the applicants is that, if by-transfer appointment to 10% of the vacancies in the cadre of LD Clerk/LD Typist are effected as clarified in Clause 2(ii) of Annexure A2, it will lead to severe anomalies. If district-wise seniority list of last grade servants are prepared, many juniors in those districts where staff strength is less will become seniors to many seniors of those districts having more strength of last grade servants. In support of the said contention the applicants would rely on Annexure A3 proceedings dated 24.6.2014. The applicants would also point out that, by Annexure A6 Government order dated 28.5.2015 the Government permitted state-wise by-transfer appointment to 10% of the vacancies in the cadre of LD Clerk/LD Typist in certain other Departments, which benefit should also be extended to the last grade servants/low paid employees in the Registration Department. O.P.(KAT)No.279 of 2015 4 6. Feeling aggrieved by clause 2(ii) of Annexure A2 the applicants represented before the Government. By Annexure A4 order dated 14.1.2015 in O.A.No.2335/2014 the Tribunal directed the Government to consider the said representation and pass appropriate orders thereon. Pursuant to Annexure A4 order, the Government considered their request and rejected the same by Annexure A5 order dated 5.5.2015. 7. In Annexure A5 Government order, the request made by the applicants was rejected mainly on the ground that, if the benefit of Annexure A1 Government order dated 3.1.2014 is extended on a state-wise basis, then the prospects of such appointees getting stuck in other districts without being able to return to the district of choice causing much inconvenience to themselves and also to the administration cannot be ruled out. Paragraph 5 of Annexure A5 order reads thus; “ **5.** As per the existing scheme of things even in Departments where seniority of LD Clerk/LD Typist is maintained state-wise, direct recruitment to these posts are made district-wise by the Kerala Public Service Commission. District Recruitment Board recruits are subjected to certain regulations and orders whereby they O.P.(KAT)No.279 of 2015 5 are restricted from moving from the district of choice to another within five years of their appointment and forfeiture of seniority occurs as and when they move out of the district of choice. Therefore, if the benefit of the Government order read 1[st] paper above were to be extended on a state-wise basis, then the prospects of such appointees getting stuck in other districts without being able to return to the district of choice causing much inconvenience to both these persons themselves and the administration setup cannot be ruled out. Moreover as recruitment to the posts of LD Clerk and LD Typist ordained to be made on a district-wise basis vide G.O.(P) No.154/71/PD dated 27.5.1971 and this task has been entrusted with the various District Recruitment Boards of the Kerala Public Service Commission, any departure from the practice has the potential of being viewed by the Kerala Public Service Commission as trespassing into their authority.” 8. In Ext.P1 order the Tribunal noticed that, the units of appointment of LD Clerk/LD Typist in most of the Departments are the districts concerned. So, when an appointment is made by direct recruitment or by promotion or by transfer, the unit of appointment is the district. Otherwise, it will cause administrative inconvenience. The Tribunal noticed further that, if the contention O.P.(KAT)No.279 of 2015 6 of the applicants is upheld, for LD Clerks/LD Typists in the Registration Department, there will be two units. For those appointed under the 10% quota, it will be the State and for others it will be the district. It was in these circumstances that, the Tribunal in Ext.P1 order repelled the challenge made against Annexure A5 order, holding that the stand taken by the Government in the said order cannot be said to be irrational. 9. Regarding Annexure A6 Government order dated 28.5.2015, the specific stand taken by the 1st respondent was that, several representations were received in the Government from the employees of certain Departments where there is no adequate cadre strength in some districts for giving by-transfer appointment, stating that they are denied their chance for such appointment. The Government after detailed examination of such representations issued Annexure A6 order, wherein it was ordered that, if any Department is unable to set apart 10% of the cadre strength of LD Clerk/LD Typist in all districts/regions, then that Department may set apart 10% of the cadre strength of LD Clerk/LD Typist reckoned state-wise for effecting by-transfer O.P.(KAT)No.279 of 2015 7 appointment as per the norms prescribed therein. Annexure A6 Government order was followed by Ext.P3 Government order dated 20.6.2015, wherein it was clarified among other things that, only those Departments which do not have the required cadre strength in all districts/regions alone can effect state-wise by-transfer appointment. It was also clarified in Ext.P3 that, bytransfer appointment cannot be given state-wise only for the purpose of getting better promotion chances since direct recruitment to those posts are made by Kerala Public Service Commission. 10. In Ext.P1 order, the Tribunal rightly noticed that, Annexure A6 Government order dated 28.5.2013 is intended for those Departments where the total number of posts in which appointments could be made under 10% quota are less than 10. In such Departments reservation of 10% will not be practical, as the employees may not get any benefits unless the State is made as the unit. The Tribunal has also noticed that, in the Registration Department there are large number of offices in every district and as such the applicants will get sufficient number of vacancies O.P.(KAT)No.279 of 2015 8 in their district itself. The said reasoning of the Tribunal in Ext.P1 order is neither perverse nor patently illegal, warranting an interference of this Court in exercise of the supervisory jurisdiction under Article 227 of the Constitution of India. 11. In **Union of India v. Pushpa Rani (2008 (9) SCC 242)** the Apex Court has reiterated the settled legal position that, matters relating to creation and abolition of posts, formation and structuring/re-structuring of cadres, prescribing the source/mode of recruitment and qualifications, criteria of selection, evaluation of service records of the employees, etc. fall within the exclusive domain of the employer. What steps should be taken for improving efficiency of the administration is also the preserve of the employer. The power of judicial review can be exercised in such matters only if it is shown that the action of the employer is contrary to any constitutional or statutory provision or is patently arbitrary or is vitiated due to mala fides. The Court cannot sit in appeal over the judgment of the employer and ordain that a particular post be filled by direct recruitment or promotion or by transfer. The Court has no role in determining O.P.(KAT)No.279 of 2015 9 the methodology of recruitment or laying down the criteria of selection. It is also not open the Court to make comparative evaluation of the merit of the candidates. The Court cannot suggest the manner in which the employer should structure or re-structure the cadres for the purpose of improving efficiency of administration. 12. In **Dilip Kumar Garg v. State of U.P. (2009 (4) SCC 753)** the Apex Court has stated that, Article 14 of the Constitution should not be stretched too far, otherwise it will make the functioning of the administration impossible. The administrative authorities are in the best position to decide the requisite qualifications for promotion from one post to another, and it is not for the Court to sit over their decision like a Court of Appeal. The administrative authorities have experience in administration, and the Court must respect this, and should not interfere readily with administrative decisions. 13. Relying on the judgment of the Apex Court in **Col. A.S.Sangwan v. Union of India (1980 Suppl. (1) SCC 559)** , the learned counsel for the petitioners/applicants would contend O.P.(KAT)No.279 of 2015 10 that, while making or changing policy the Government has to act fairly. 14. It is trite law that Article 14 of the Constitution applies also to matters of Governmental policy and if the policy or any action of the Government fails to satisfy the test of reasonableness, it would be unconstitutional. In Col. A.S. Sangwan's case (supra), the Apex Court observed that, a policy once formulated is not good forever, it is perfectly within the competence of the Government to change it, re-change it, adjust it and re-adjust it according to the compulsions of circumstances and imperatives of national considerations. In the said decision, while the discretion to change the policy in exercise of the executive power, when not trammelled by the statute or rule, was held to be wide, it was emphasised as imperative and implicit in Article 14 of the Constitution that a change in policy must be made fairly and should not give the impression that it was so done arbitrarily or by any ulterior criteria. 15. In **Union of India v. S.L. Dutta (1991 (1) SCC 505)** the Apex Court was dealing with a case where the old O.P.(KAT)No.279 of 2015 11 policy of promotion was changed and new policy was adopted. The Gauhati High Court interfered with the decision taken by the authorities observing that the new promotion policy was not framed after an in-depth study and directed the Government to consider the case of the petitioner therein on the basis of the old policy. Setting aside the said judgment and upholding the policy [after referring to the decision in Col. A.S. Sangwan's case (supra)] the Apex Court observed that, these are matters regarding which judges and the lawyers of courts can hardly be expected to have much knowledge by reason of their training and experience. 16. The question as to whether by-transfer appointment to 10% of the cadre strength of LD Clerk/LD Typist should be made district-wise or state-wise is a matter of policy for the Government to decide. As matters relating to creation and abolition of posts, prescribing the source or mode of recruitment, criteria of selection, etc. fall within the exclusive domain of the employer, the power of judicial review can be exercised in such matters only if it is shown that the action of the employer is O.P.(KAT)No.279 of 2015 12 contrary to any constitutional or statutory mandate or is patently arbitrary or is vitiated by malafides. In the absence of any vitiating circumstances pointed out in the policy as reflected in Clause 2(ii) of Annexure A2 Government Order and also in Annexure A5 order rejecting the request made by the petitioners/applicants, we find no ground to interfere with Ext.P1 order passed by the Tribunal and the challenge made against the said order stands repelled. 17. However, we notice that Ext.P3 Government Order dated 20.6.2015 came into force subsequent to Ext.P1 order passed by the Tribunal. If the petitioners/applicants have any grievance against Ext.P3, it would be open for them to file a representation before the 1st respondent within one month from the date of receipt of a certified copy of this judgment. If any such representation is received, the 1st respondent shall consider the same and pass appropriate orders thereon, strictly in accordance with law and keeping in mind the observations contained in this judgment, after affording the petitioners/ applicants an opportunity of being heard. A decision in this regard O.P.(KAT)No.279 of 2015 13 shall be taken within a period of three months after the receipt of such representation. The Original Petition is disposed of as above. Sd/- **P.R. RAMACHANDRA MENON, JUDGE** Sd/- **ANIL K. NARENDRAN, JUDGE** skj True copy P.A to Judge