OP(KAT) No.32 of 2021

O.P.(KAT) No.32 of 2021 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** # **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **&** **THE HONOURABLE MR. JUSTICE T.R.RAVI** **TUESDAY, THE 02ND DAY OF FEBRUARY 2021 / 13TH MAGHA,1942 OP(KAT).No.32 OF 2021** **AGAINST THE ORDER IN OA 218/2018 DATED 19-07-2019 OF KERALA** ## **ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONER/APPLICANT No.1:** **ANAND G., AGED 30 YEARS** **S/O. GOPALAKRISHNAN, AKKARAVADAKKETHIL, PATHIYOOR P.O, ALAPPUZHA DISTRICT, KERALA, PIN-690508, MOB. NO. 94964 780 08.** ## **BY ADVS.SRI.K.G.RADHAKRISHNAN SRI.R.S.MAHESH KRISHNA** ## **RESPONDENTS/RESPONDENTS:** - **1 THE STATE OF KERALA** - **REP. BY THE SECRETARY TO GOVERNMENT (HOME), GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001** - **2 THE DIRECTOR GENERAL OF POLICE, OFFICE OF THE D.G.P VAZHUTHACAUD, THIRUVANANTHAPURAM-695 010** - **3 THE KERALA PUBLIC SERVICE COMMISSION, REP. BY THE SECRETARY,OFFICE OF THE PUBLIC SERVICE COMMISSION, PATTOM P.O, THIRUVANANTHAPURAM-695 004** - **4 SHANAVAS A,AGED 36 YEARS, S/O. K. ABDUL MAJEED, R/O. PUTHENKADA VEEDU, ELAMPZHANOOR P.O, CHADAYAMANAGALAM, KOLLAM, KERALA-691 534** ## **SRI.B.VINOD, SR.GOVT.PLEADER** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 02.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** O.P.(KAT) No.32 of 2021 2 ## **ALEXANDER THOMAS & T.R. RAVI, JJ. -----------------------------------------------O.P.(KAT) No.32 of 2021** [ _Arising out of order dated 19.07.2019 in O.A.No.218/2018 of KAT, Tvm._ ] **--------------------------------------------------** **Dated this the 2[nd] day of February, 2021** ## **JUDGMENT** ## **T.R. RAVI, J.** The 1[st] applicant in O.ANo.218 of 2018 before the Kerala Administrative Tribunal, Thiruvananthapuram (hereinafter referred to as the Tribunal) has filed this original petition being aggrieved by the common order passed by the Tribunal in a batch of original applications, including O.A.No. 218 of 2018. 2. On 31.12.2010, the 3[rd] respondent issued Exhibit P1(A1) notification, inviting applications for the post of Reserve Sub Inspector Trainee/Armed Police Sub Inspector Trainee (Motor Transport Unit) under the Police Department. The number of vacancies notified was 1 (One). The minimum age was to be 18 and the maximum age was to be 30 and the qualifications prescribed were a Diploma in Automobile or O.P.(KAT) No.32 of 2021 3 Mechanical Engineering of the Government of Kerala or any diploma declared equivalent thereto along with two years experience in a reputed Automobile workshop in the case of diploma holders and 1 year experience in the case of degree holders after the acquisition of the qualification referred to above.(There is an apparent mistake while referring to experience after degree, since degree is not a qualification stated in the notification). The candidate should also hold a current heavy duty driving license. One of the physical qualifications prescribed was height of 160 cm. The above notification had been issued on the basis of the qualifications prescribed in Annexure A4 Government order dated 19.11.1975, which was the requirement in force at the time of issuance of the notification. The last date fixed for submission of application was 9.2.2011. 3. While so, the Government issued Special Rules for the Motor Transport wing of the Kerala Police Subordinate Service as G.O.(P). No. 20/2011/Home dated 24.01.2011, which was published in the Gazette dated 27.01.2011. As per the Special Rules, the post was named as Motor Transport Sub Inspector and the method of appointment prescribed was (i) By promotion of Havildar Motor Mechanic in Category 2 and (ii) By Direct Recruitment. There is also a prescription that 50% of the post is to O.P.(KAT) No.32 of 2021 4 be filled by direct recruitment and the remaining 50% to be filled up by promotion. The qualification prescribed for the post earlier had undergone changes in the Special Rules. The academic qualification was fixed as Degree or diploma in Automobile or Mechanical Engineering from any University established by statute or any Degree or Diploma declared equivalent thereto. There is a prescription of 2 years experience in Government approved automobile workshop in the case of diploma holders and one year experience in the case of degree holders after the acquisition of the qualification and also the requirement of a heavy duty driving license for driving. Regarding the physical qualification, the minimum height prescribed was increased from 160 to 165 cm. The minimum age was made 20 and the maximum age was 31. It can thus be seen, that even before the last date for submission of application under Annexure A1 notification, the Government had amended the Rules and brought in the Special Rules with effect from January, 2011. 4. The Public Service Commission (PSC for short), however, went ahead with the selection process under Annexure A1 notification and issued Annexure A2 ranked list with effect from 18.5.2016. When the respondents did not make appointments to the existing vacancies, the petitioner and another person included in the ranked list as Rank No.9, O.P.(KAT) No.32 of 2021 5 filed O.A.No.218 of 2018 before the Tribunal. The petitioner was an open competition candidate and the 2[nd] applicant before the Tribunal belonged to Muslim community. According to the applicants, four vacancies in the cadre of Reserve Sub Inspector/Armed Police Sub Inspector were available in the Motor Transport unit during the period from 01.01 2010 to 31.12.2010, due to promotion, but only one vacancy was reported to the PSC. It is contended that those vacancies were available even before the issuance of the Special Rules and hence should be filled up in accordance with the then existing Rules. It is contended that later three more vacancies arose in the cadre due to promotions as per DGO No. 564/2013 dated 23.4.2013, which were reported to the PSC by the 2[nd] respondent in the year 2015. It is the further contention of the applicants that the above said vacancies which arose in the cadre of Motor Transport Sub Inspector in the year 2010 due to promotion, are liable to be filled up by direct recruitment as per Annexure A4 Government Order and they pray for a direction to the PSC to advise candidates from Annexure A2 ranked list, to the said posts. The 2[nd] respondent appears to have filed a reply statement (not produced along with the original petition), wherein it was stated that out of the 4 vacancies, which were existing at the time when the ranked list was issued, the requisition for only one vacancy had been O.P.(KAT) No.32 of 2021 6 placed before the PSC and the remaining 3 were kept unreported and those vacancies have been filled up subsequently in the year 2013 by promotion as per the Special Rules. As a justification for not including the said three vacancies, it is stated that persons working as a Mechanic/Havildar/Head Constable had to retire as such, and several representations were received for considering them for promotion. It is also stated that this Court had as per the common judgement dated 11.6.2009 in WP(C)Nos. 20582 of 2006 and 32212 of 2006, directed the Government to consider the claim of Havildar Motor Mechanics for promotion to higher posts and to take a final decision in the matter of framing revised special Rules for the Motor Transport wing of the Kerala Police Subordinate Service and also in the matter of reserving 50% of the vacancies for promotion. It is stated that it was in these circumstances that only 1 out of the 4 vacancies were reported for direct recruitment to the PSC. 5. The Tribunal after elaborate consideration of the contentions put forward by the counsel for the petitioner, the Government and the PSC, by order dated 19.7.2019, dismissed O.A.No.218 of 2018, subject to an observation that the dismissal of the original application will not stand in the way of the applicants approaching the Government. The petitioner O.P.(KAT) No.32 of 2021 7 has approached this Court, being aggrieved by the dismissal of the original application. 6. Heard Sri K.G.Radhakrishnan, learned counsel on behalf of the petitioner, Sri B.Vinod, learned Senior Government Pleader on behalf of respondents 1 and 2 and Sri P.C.Sasidharan, learned Standing Counsel for the 3[rd] respondent. 7. The learned counsel for the petitioner reiterated the contentions which had been raised before the Tribunal. The primary contention is that all the vacancies which were available prior to the coming into force of the Special Rules ought to have been filled up from the ranked list which was prepared pursuant to Annexure A1 notification. The Counsel relies on the admission made by the Government in their reply statement, that only one out of four vacancies were reported to the PSC for appoinment by Direct Recruitment, in support of his contention that vacancies were available. The Standing Counsel for the PSC submitted that it is the well settled principle of law that vacancies which arise after the amendment of the qualifications will have to be filled up in accordance with those qualifications. He submits that three vacancies were reported on 21.4.2015, noting the date of occurrence of vacancies as in the year 2013. The Standing Counsel hence contends that the said O.P.(KAT) No.32 of 2021 8 vacancies admittedly arose after the coming into force of the Special Rules, and hence can be filled up only in accordance with the qualifications prescribed in the Special Rules. 8. We have considered the contentions put forward by the learned counsel for the petitioner and the learned counsel for the respondents. A Full Bench of this Court has in the decision in **Mohanan K.R. vs. Director of Homeopathy** , reported in [2006(3) K.L.T 641], held that vacancies which arise after the coming into force of the special rules can be filled up only in accordance with the Special Rules. As such, the petitioner is not entitled to contend that the three vacancies which were reported in 2015 should be filled up by appointing persons who are included in Annexure A2 ranked list. 9. It is evident from the facts pleaded and proved that when Annexure A1 notification was issued, there were four vacancies available in the department. The respondents however chose only to notify one vacancy for filling up by direct recruitment. It is the case of the respondents that the other three vacancies were not notified, owing to the fact that the issuance of the Special Rules as directed by this Court in the common judgment dated 11.6.2009, was round the corner, and apparently, the rights of the Havildar Motor Mechanic was sought to be O.P.(KAT) No.32 of 2021 9 protected. It is also evident that the three vacancies which were thus kept apart were later filled up as early as in 2013, by effecting promotions as per the Special Rules. The petitioner has not challenged the promotions effected in 2013. Nor could he have challenged the same since Annexure A2 ranked list on the basis of which the petitioner stakes his claim, came into force only with effect from 18.5.2016. Added to that, the promotions had subsequently been regularised and none of the promotees were made parties to the proceedings. 10. When confronted with the above situation, where the promotions made much prior to the coming into force of the ranked list could not be legally challenged, the counsel for the petitioner had contended before the Tribunal that since three more vacancies have been reported in 2015, the promotees should be adjusted towards those vacancies and the vacancies which were available in 2010 should be made available for appointment of persons from the ranked list Annexure A1. The said contention was also rejected by the Tribunal. We are in complete agreement with the order of the Tribunal and are also of the opinion that such a course of action is not permissible, since it would affect the very promotion granted to the promotees in 2013, against the existing vacancies. The petitioner cannot be heard to contend that persons who O.P.(KAT) No.32 of 2021 10 were promoted in 2013 should be adjusted towards vacancies which arose in 2015, to facilitate the appointment of the petitioner, who was included in a ranked list prepared in 2016. 11. The counsel for the petitioner, in the above circumstances, contended that it is a fit case where the Government should be directed to exercise their powers under Rule 39 of Part II KS&SSR and set right the injustice caused to him, since, but for the issuance of the Special Rules, he would have been appointed to either the existing vacancies or the vacancies which arose later, having regard to his high ranking in the list. It is to protect such a right if any that the Tribunal had, while dismissing the original application, reserved the right of the petitioner to approach the Government for appropriate reliefs as permissible under law. 12. We are in complete agreement with the well considered order issued by the Tribunal and we do not find any reason to interfere with the said directions in exercise of our jurisdiction, both extraordinary and supervisory, under Articles 226 and 227 of the Constitution of India. 13. Be that as it may, the Tribunal has reserved the right of the petitioner to approach the State Government for appropriate remedies, if available in law. The order of the Tribunal was issued on 19.7.2019. The petitioner has produced as Exhibit P3, a representation dated 09.10.2019, O.P.(KAT) No.32 of 2021 11 which is said to have been filed before the Government. In the circumstances, we dispose of the original petition confirming the order of the Tribunal and directing the 1[st] respondent to consider and pass orders on Exhibit P3 representation, if the same has been received, at the earliest, in any event within four months from the date of receipt of a copy of this judgment. The original petition is disposed of as above. In the circumstance of the case, there will be no order as to costs. Sd/- **ALEXANDER THOMAS, JUDGE** Sd/- **T.R. RAVI, JUDGE** dsn O.P.(KAT) No.32 of 2021 12 ## **APPENDIX** |**APPENDIX**|**APPENDIX**| |---|---| |**PETITIONER'S/S EXHIBITS:**|| |**EXHIBIT P1**|**TRUE COPY OF THE ORIGINAL APPLICATION NO. 218/2018**| ||**DATED 12.02.2018 FILED BEFORE THE KERALA**| ||**ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM.**| |**EXHIBIT P1 A1**|**TRUE COPY OF THE NOTIFICATION FOR VACANCIES OF**| ||**THE KERALA PUBLIC SERVICE COMMISSION DATED**| ||**31.12.2010.**| |**EXHIBIT P1 A2**|**TRUE COPY OF THE RANK LIST PUBLISHED BY THE**| ||**KERALA PUBLIC SERVICE COMMISSION DATED**| ||**18.05.2016.**| |**EXHIBIT P1 A3**|**TRUE COPY OF THE APPOINTMENT CHART DATED**| ||**19.07.2016.**| |**EXHIBIT P1 A4**|**TRUE COPY OF THE GOVERNMENT ORDER NO.**| ||**137/75/HOME, DATED 19.11.1975.**| |**EXHIBIT P1 A5**|**TRUE COPY OF THE RELEVANT PORTION OF THE**| ||**NOTIFICATION G.O.(P) NO.20/2011/HOME DATED**| ||**24.01.2011.**| |**EXHIBIT P1 A6**|**TRUE COPY OF THE APPLICATION OF THE PETITIONER**| ||**UNDER IT ACT TO THE POLICE HEADQUARTERS DATED**| ||**11.12.2017.**| |**EXHIBIT P1 A6(A)**|**TRUE COPY OF THE 2ND GAZETTEE NOTIFICATION OF**| ||**THE PUBLIC SERVICE COMMISSION DATED 10.03.2016.**| |**EXHIBIT P1 (A7)**|**TRUE COPY OF THE 2ND GAZETTE NOTIFICATION OF**| ||**THE PUBLIC SERVICE COMMISSION DATED 10.03.2016.**| |**EXHIBIT P2**|**TRUE COPY OF THE ORDER IN O.A. NO. 218/2018**| ||**DATED 19.07.2019 OF THE KERALA ADMINISTRATIVE**| ||**TRIBUNAL, THIRUVANANTHAPURAM.**| |**EXHIBIT P3**|**TRUE COPY OF THE REPRESENTATION OF THE**| ||**PETITIONER DATED 09.10.2019 TO THE GOVERNMENT.**|