P. Aboobacker, Principal, Government Polytechnic College, Muttam, Thodupuzha, Idukki, Kerala; V. C. Pookoya Thangal, Principal, Government Polytechnic College, Kalamassery, Ernakulam, Kerala; Shareef Husain, Principal, Government Polytechnic College, Vechoochira, Pathanamthitta v. Emilia Morris, Head of Section in Electronics, Government Women's Polytechnic College, Kayamkulum (now Principal, Government Polytechnic College, Punalur); State of Kerala, represented by the Secretary to Government, Higher Education (L) Department, Government Secretariat, Thiruvananthapuram; Departmental Promotion Committee, Higher for Technical Education Department, represented by the Secretary to Government, Higher Education (L) Department, Government Secretariat, Thiruvananthapuram; Director, Directorate of Technical Education

**“CR”** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **THURSDAY, THE 23RD DAY OF JANUARY 2020 / 3RD MAGHA, 1941** **OP(KAT).No.214 OF 2018(Z)** **OA 1326/2014 DATED 02-05-2018 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONER/S:** **1 P.ABOOBACKER PRINCIPAL, GOVERNMENT POLYTECHNIC COLLEGE,MUTTAM, THODUPUZHA, IDUKKI, KERALA,PIN685 587 (NOW RETIRED AND RESIDING AT "AYSHA'S", NEAR MORAZHA U.P.SCHOOL, ANJAMPEEDIKA P.O., VIA MOTTAMMAL, KANNUR, PIN- 670 331). 2 V.C.POOKOYA THANGAL PRINCIPAL, GOVERNMENT POLYTECHNIC COLLEGE,KALAMASSERY, ERNAKULAM, KERALA,PIN- 683 101,(NOW RETIRED AND RESIDING AT "GAZAR", POTTAMMAL, NELLIKKODE, KOZHIKODE, PIN- 673 016. 3 SHAREEF HUSSAIN PRINCIPAL, GOVERNMENT POLYTECHNIC COLLEGE,VECHOOCHIRA, PATHANAMTHITTA, KERALA,PIN- 686 511 ( NOW WORKING AS PRINCIPAL, GOVERNMENT POLYTECHNIC COLLEGE, MATTANNUR, KANNUR PIN- 670 702).** **BY ADVS. SRI.S.P.ARAVINDAKSHAN PILLAY SRI.S.A.ANAND SMT.L.ANNAPOORNA SRI.K.A.BALAN SRI.PETER JOSE CHRISTO SMT.N.SANTHA SRI.V.VARGHESE** O.P.(KAT) No.214 of 2018 2 ## **RESPONDENT/S:** - **1 EMILIA MORRIS AGED 48 YEARS, W/O.SHAJI MARIDASAN, HEAD OF SECTION IN ELECTRONICS,GOVERNMENT WOMEN'S POLYTECHNIC COLLEGE,KAYAMKULAM, PIN- 690 502, ALAPPUZHA DISTRICT(NOW WORKING AS PRINCIPAL, GOVERNMENT POLYTECHNIC COLLEGE,PUNALUR, KOLLAM DISTRICT, PIN- 691 305) RESIDING AT ASHOK BHAVAN, CHEMMAKKAD P.O., PERINAD, KOLLAM, KERALA PIN- 691 601.** - **2 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT,HIGHER EDUCATION (L) DEPARTMENT,GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, KERALA,PIN- 695 001.** - **3 THE DEPARTMENTAL PROMOTION COMMITTEE HIGHER FOR TECHNICAL EDUCATION DEPARTMENT,REPRESENTED BY THE SECRETARY TO GOVERNMENT,HIGHER EDUCATION (L) DEPARTMENT,GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM,PIN- 695 001.** - **4 THE DIRECTOR** **DIRECTORATE OF TECHNICAL EDUCATION,POWER HOUSE BUILDING, THAKARAPARAMBU,THIRUVANANTHAPURAM, KERALA,PIN- 695 023, (NOW PADMAVILASOM ROAD, EAST FORT,THIRUVANANTHAPURAM, PIN- 695 023.)** ## **R1 BY ADV. SRI.P.NANDAKUMAR** ## **OTHER PRESENT:** ## **SR.GP SRI.ANTORNY MUKKATH** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 23-01-2020, THE COURT ON 23-01-2020 DELIVERED THE FOLLOWING:** O.P.(KAT) No.214 of 2018 3 ## **“CR”** ## **JUDGMENT** Dated this the 23[rd] day of January, 2020. ## **V.G.ARUN, J.** Petitioners were respondents 4 to 6 in the original application filed by the first respondent herein. The Tribunal, as per its order in O.A.No.1326 of 2014, allowed the original application and set aside Annexure A6 order of the Government by which the petitioners were promoted as Head of Section in Electronics in different Government Polytechnic Colleges with effect from 11.11.2000 and granted notional promotion as Principals, with effect from 03.06.2010 and were posted as Principals with immediate effect in purported exercise of the power under Rule 39 of Part II KS&SSR. The essential facts, which culminated in the impugned order, are as follows:- O.P.(KAT) No.214 of 2018 4 The applicant had entered service as Lecturer in Electronics under the Directorate of Technical Education on 08.10.1992. At the time of his appointment, the applicant possessed the qualification of B.E. (Electronics and Communication) and had prior experience as Instructor in an Industrial Training Centre affiliated to the National Council for Vocational Trades, Ministry of Labour and Employment, Government of India. As per the Special Rules for Kerala Technical Education Service, the method of appointment to the post of Head of Section is by way of promotion and direct recruitment and the qualification prescribed is Degree in the appropriate branch of Engineering or Technology or any other qualification recognised by the Government as equivalent thereto with not less than 60% marks in the qualifying examination for direct recruitment, the requirement of 60% O.P.(KAT) No.214 of 2018 5 marks not being insisted in the case of promotions. Along with the qualification, the candidate should also have eight years experience in Engineering profession, of which at least three years should be teaching experience as Lecturer not below the Diploma level in recognised/approved institutions. 2. By Annexure A1 dated 21.04.2003, select list of Head of Section in Electronics Engineering for the year 2002 and 2003 was published. The applicant was included at serial No.2 in the select list for the year 2002 and respondents 4 and 5 at serial Nos.4 and 5 in the select list for the year 2003. The 6[th] respondent was not included in the select list for the years 2002 or 2003. By Annexure A2 dated 18.07.2003, the applicant was promoted as Head of Section in Electronics Engineering and posted at the Government Polytechnic, Cherthala. In Annexure A3 seniority list dated 05.06.2007, the O.P.(KAT) No.214 of 2018 6 applicant was included at serial No.9, whereas respondents 4 and 5 were at serial Nos.17 and 18 respectively. 3. As per the service details of the 4[th] respondent, he was appointed as Workshop Instructor in the Technical Education Department on 14.02.1984 and promoted as Lecturer on 11.11.1997 on acquisition of B.Tech. He was promoted to the post of Head of Section as per order dated 23.07.2003. The service particulars of the 5[th] and 6[th] who are also as Lecturer on respondents, promoted 11.11.1997 after acquisition of B.Tech Degree while in service, are as follows:- The 5[th] service as respondent joined Workshop Superintendent on 31.08.1989 and was promoted as Lecturer on 12.12.1990. He acquired B.Tech Degree on 11.11.1997 and was promoted as Lecturer on the same day. The 6[th] O.P.(KAT) No.214 of 2018 7 respondent joined service as Trade Instructor on 20.06.1991 and on acquisition of B.Tech, was promoted as Lecturer on 11.11.1997. The 5[th] respondent had earlier filed W.P.(C) No.13096 of 2009 before this Court seeking retrospective promotion as Head of Section with effect from 11.11.2000. The writ petition was transferred to the Tribunal and as per Annexure A4 order, the Tribunal directed the Government to consider the 5[th] respondent's grievance. Accordingly, by Annexure A5 order dated 23.10.2013, the Government considered and rejected the 5[th] respondent's representation. After the issue regarding seniority and promotion of the applicant and respondents 4 to 6 had thus become settled, the Government issued Annexure A6 order granting respondents 4 to 6 the benefit of retrospective promotion as Head of Section and notional promotion as Principals, thereby O.P.(KAT) No.214 of 2018 8 upsetting the settled seniority of the applicant and others. 4. The applicant challenged Annexure A6 order, contending that the power under Rule 39 of Part II KS&SSR was not meant to be exercised in a capricious or arbitrary manner, in order to favour an employee or employees. Moreover, the power under Rule 39 could not be exercised in order to circumvent the statutory provisions, for favouring few employees. It was contended that by Annexure A6, the settled seniority of the applicant and others was upset, that too without even affording an opportunity of hearing to the affected persons. 5. The Government and the party respondents justified the issuance of Annexure A6 by contending that respondents 4 to 6 had acquired the requisite 8 years experience, as also the three years teaching experience as O.P.(KAT) No.214 of 2018 9 Lecturer as on 11.11.2000. That, the Departmental Promotion Committee was not convened during the years 2000-2001 and had met only on 05.02.2002 and thereafter on 23.03.2003, in which a select list of 13 candidates including the applicant and respondents 4 and 5 was prepared. The Departmental Promotion Committee, which met in the year 2002-2003 did not take into account teaching experience in the cadre of Assistant Lecturer, Engineering Instructor, Demonstrator etc for reckoning the eight years experience, whereas on earlier occasions, the aforementioned teaching experience was also reckoned. Since respondents 4 to 6 were denied their rightful promotion, by not reckoning their teaching experience, the Government had corrected the mistake under Annexure A6 order by promoting respondents 4 to 6 as Head of Section with effect from 11.11.2000. O.P.(KAT) No.214 of 2018 10 6. The Tribunal considered the question as to whether settled seniority could be unsettled, and a select list from which promotions had been effected tinkered with by invoking Rule 39 of Part II KS&SSR. Answering the question, the Tribunal held that the power under Rule 39 has to be exercised in the interest of justice and equity and while exercising such power, the Government should act with caution and circumspection. The contention that respondents 4 to 6 had not availed the statutory remedy provided under Rules 27B, 28 (b) (i) (8) (a) and 29 of Part II of KS&SSR against Annexure A1 select list and Annexure A3 final seniority list were also taken into consideration. Referring to precedents, the Tribunal held that the seniority list, which has been in existence for many years, cannot be unsettled at the instance of juniors who had been sleeping over their rights. O.P.(KAT) No.214 of 2018 11 On facts, it was noticed that the Special Rules specifically mandate the experience to be one in Engineering profession, which respondents 4 to 6 did not have and that as on 11.11.2000, the date on which respondents 4 to 6 are notionally promoted as Head of Section in Electronics against the vacancies which arose on 23.2.2000, the vacancies to which respondents 4 to 6 were promoted, stood filled up by promotion of three other Lecturers and there was no vacancy to which the respondents 4 to 6 could have been promoted. Based on the findings, the Tribunal set aside Annexure A6 and directed to issue consequential orders, re-assigning the promotions to the post of Head of Section and Principal in accordance with Annexure A1 select list and Annexure A3 seniority list. 7. Assailing the impugned order of the Tribunal, the O.P.(KAT) No.214 of 2018 12 petitioners/ respondents 4 to 6 in the original application contended that Annexure A6 order having been issued by the Government in exercise of its residual power to do complete justice, the Tribunal ought not have interfered with the order in exercise of its power of judicial review. It is contended that the applicant had obtained the essential qualification for promotion to the post of Head of Section only on 20.8.2002, whereas respondents 4 to 6 had obtained the said qualification on 11.11.2000. It is contended that by issuing Annexure A6 order, the Government had only corrected an injustice done to respondents 4 to 6. It is submitted that no prejudice is caused to the applicant on the basis of Annexure A6 as the order did not entail in reversion of the applicant from the post of Head of Section and Principal. That, by the notional promotion of respondents 4 to 6, the applicant did O.P.(KAT) No.214 of 2018 13 not lose any promotional avenues since there is no prospect for further promotion for the applicant as well as respondents 4 to 6. 8. The learned counsel for the applicant reiterated the contentions urged before the Tribunal and submitted that Annexure A6 is a classic example of misuse of the power under Rule 39 Part II KS&SSR. According to the learned Counsel, the power under Rule 39 cannot be exercised in an arbitrary and whimsical manner, to favour a particular employee or a group of employees. Such exercise cannot be to the detriment of other employees, that too, without hearing the affected employees. It is contended that as a result of Annexure A6, the settled seniority of the applicant has been upset, to the benefit of respondents 4 to 6 and to that extent, the applicant has been put to prejudice. O.P.(KAT) No.214 of 2018 14 9. In the nature of the contentions urged, it would be apposite to consider Rule 39 of Part II of KS&SSR, which reads as follows:- _“39. Notwithstanding anything contained in these rules or in the Special Rules or in any other Rules or Government Orders the Government shall have power to deal with the case of any person or persons serving in a civil capacity under the Government of Kerala or any candidate for appointment to a service in such manner as may appear to the Government to be just and equitable:_ _Provided that where such rules or orders are applicable to the case of any person or persons, the case shall not be dealt with in any manner less favourable to him or them than that provided by those rules or orders.”_ Of course under Rule 39 of Part II of KS&SSR, the power to deal with the case of any employee in Government service in a just and equitable manner is vested with the Government, notwithstanding anything contained in the Rules or in the Special Rules or in any other Rules or Government orders. No doubt, the power is extensive. But the question is as to whether the power is all pervasive, to be exercised in all O.P.(KAT) No.214 of 2018 15 situations and in whatever manner the Government decides, to favour a person or group of persons, to the detriment of another person or group of persons, to circumvent the mandatory requirements in the Service Rules and above all to do so without hearing the affected persons. The answer can only be an emphatic 'no'. Rule 39 cannot under any circumstance be understood as a power, which can be exercised without following the fundamental principles of natural justice and fair play. The basic requirement of hearing the affected person is sacrosanct and cannot be given a go by. The exercise of power under Rule 39 is qualified by the words 'just and equitable', which definitely indicates that the Government shall exercise the power only in such a manner as may appear to be just and equitable. Justness of an order is liable to be tested on the touch stone of fairness. Equity O.P.(KAT) No.214 of 2018 16 presupposes consideration of all relevant factors and hearing of all affected persons. ## 10. In _**Koyit Joseph and others v. Subash George and others [ILR 2006 (3) Ker.162]**_ , the Division Bench analysed the scope and ambit of Rule 39 and held as under:- _“23. We have to understand R.39 of the K.S.S.R as giving power to the Government to set right matter, when otherwise there was imminent hardship or illegalities. What was contemplated was a relaxation in public interest. Appointments to the Police Force are to be made with reference to the rules framed under Public Services Act and it should not be mistaken that R.39 of the K.S.S.R by itself confers a special sui juris or exclusive power than that is prescribed by the Special Rules. The Special Rules as well as the general rules are to be deemed as issued under the Public Services Act, vide S.2 read with S.3 of the Act. It is not as if the Public Services Act is subservient to R.39 of the K.S.S.R in fact the parent Act requires full obedience. The foundation for invocation of power under the Rule is justice and equity. The petitioner in the O.P. cannot contend that what was proposed to be given him was a fresh appointment he being a serving officer. So much so, Government was obliged to recognise the presence of third persons, and claims of his seniors. This is because the petitioner do only come within the first category spoken to by the Rules viz, a case where it deals with a person already in service. Of course, in the case of a fresh candidate, who is yearing for appointment, Government has power to relax, as could be gatherable from the latter part of the Rules, but the petitioner cannot claim that he belongs to this general. Therefore, we have to notice that the principles laid down by the Full Bench in Sreedharan Pillai's case would have relevance. The loss of seniority which was to befall on the appellants therefore could not have been overlooked._ O.P.(KAT) No.214 of 2018 17 _such persons were likely to be seriously affected and prejudiced. The judgment and consequential order Annexure.A therefore offended principles of fair play, natural justice and requires to be annulled.”_ ## 11. Again, in _**Vijayakumar v. State of Kerala [2014 (1)**_ _**KLT 186]**_ , another Division Bench of this Court held that when the power to relax a rule is protected while making a rule, then the power has to be understood as an exception and only as the reflection of the existing power to deal with extraordinary circumstances. Any power to relax has always to be understood as one exercised in exceptional circumstances and that, if power to relax were to be treated otherwise, that would be an affront to fairness, transparency and hence, would be arbitrary, having regard to Part III of the Constitution of India. 12. The Apex Court considered the gamut of the provisions made by the Government, providing for relaxation of the Recruitment Rules and other Service Rules in _**Ashok**_ O.P.(KAT) No.214 of 2018 18 _**Kumar Uppal v. State of Jammu and Kashmir [(1998) 4 SCC**_ . _**179]**_ After considering the question at length, it was held that the Government can exercise the power to relax the rules in cases where hardship is caused due to the implementation of these rules, to meet a particular situation or where injustice has been caused to either the individual employee or class of employees. The Apex Court sounded a note of caution by observing that the power to relax cannot be exercised capriciously or arbitrarily, to give undue advantage or to favour an individual employee. 13. The question as to whether invocation of power by the Government under Rule 39 can be done as a matter of course, without considering whether it is for a just and equitable reason as mandated in Rule 39, came up for consideration in _**Dinesh Sankar N.T v. State of Kerala and**_ O.P.(KAT) No.214 of 2018 19 _**others [ILR 2016 (4) Ker. 547]**_ . The beneficiary therein was a person who was not even called for an interview by the PSC because of non-satisfaction of the required qualification with respect to physical measurement. The challenge in the original petition was against the exemption granted to the beneficiary from having the requisite chest measurement for being appointed as Forest Range Officer. The beneficiary's challenge against his non-inclusion in the select list of Forest Range Officer for reason of his not satisfying the physical eligibility condition having failed up to the Supreme Court, he moved the Government with a representation and the Government in exercise of power under Rule 39 granted exemption to the beneficiary and directed him to be promoted without undergoing the mandatory training. His promotion was challenged by another aspirant and after detailed O.P.(KAT) No.214 of 2018 20 consideration of the question with respect to invocation of the power under Rule 39 and a detailed survey of precedents, the Division Bench held that if the relaxation given by the Government is approved, it obviously will be in contravention of the relevant rules as it existed at the relevant point of time. That apart, there may be so many other persons like the beneficiary, who may be standing in the queue and having more merit. It was observed that the Government was more eager to extend the benefit, taking the case of the beneficiary in isolation, merely on the basis of the representation made by him, quite conveniently forgetting the merit/fate or chance of others concerned. It was held that no second thought is required to hold that the power under Rule 39 was exercised by the Government quite casually and arbitrarily. 14. As far as the instant case is concerned, the Special O.P.(KAT) No.214 of 2018 21 Rules prescribed eight years experience in Engineering profession, of which at least three years should be teaching experience as Lecturer not below the Diploma level in recognised/ approved institutions. As per Rule 10 (ab) of Part II KS&SSR, the experience prescribed under the statute should be gained after acquiring the basic qualification prescribed for the post. The basic qualification prescribed for the post of Head of Section is Degree in appropriate branch of Engineering or any other qualification recognised by Government as equivalent thereto. It naturally follows that the eight years experience in Engineering profession should be experience gained after acquiring the essential qualification for holding the post. As rightly held by the Tribunal, the usage of the words 'eight years experience in Engineering profession' clearly indicates that the experience O.P.(KAT) No.214 of 2018 22 should be after acquisition of Engineering/Technology Degree or its equivalent. Indisputably, respondents 4 to 6 had acquired B.Tech Degree only on 11.11.1997 and were promoted as Lecturers on the same date. Their eight year experience in Engineering profession could have been reckoned only from 11.11.1997. If so, respondents 4 to 6 would become eligible for promotion as Head of Section only by 11.11.2005. Hence, the promotion granted to respondents 4 to 6 as Head of Section with effect from 11.11.2000 under Annexure A6 order and their notional promotion as Principals with effect from 03.06.2010 is in patent violation of the Service Rules. 15. The power under Rule 39 is not to be exercised for circumventing the mandatory requirement under the Service Rules, so as to provide benefit to a person or a group of O.P.(KAT) No.214 of 2018 23 persons, that too, to the detriment of another person or group of persons, promoted long back, on their satisfying the requisite eligibility condition. As rightly observed by the Tribunal, the benefit was granted even without exhausting the statutory remedies provided under Rules 27B, 28 (b) (i) (8) (a) and 29 of Part II of KS&SSR. The legal position with regard to the sanctity of seniority list and the list being unassailable at the instance of a person who had been sleeping over his rights is well settled through a catena of decision of the Honourable Supreme Court including the decisions in _**Rajendra Prathap Singh Yadav and others v. State of Uttar Pradesh and others [(2011) 7 SCC 743], H.S.Vankani and others v. State of Gujarat and others [(2010) 4 SCC 301], Rabindra Nath v. Union of India [(1970) 1 SCC 84],**_ For the reasons mentioned above, the findings in the O.P.(KAT) No.214 of 2018 24 impugned order of the Tribunal are only to be affirmed and we do so. Consequently, the original petition is dismissed. No order as to costs. **Sd/K.VINOD CHANDRAN JUDGE** **Sd/-** **V.G.ARUN JUDGE** Scl/23.01 O.P.(KAT) No.214 of 2018 25 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXT P1 TRUE COPY OF THE O.A NO.1326/2014 BEFORE THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM. ANNEXURE-A1: TRUE COPY OF SELECT LIST DATED 21/04/03. ANNEXURE-A2: TRUE COPY OF ORDER DATED 18/07/03 ISSUED BY THE 1ST RESPONDENT. ANNEXURE-A3: TRUE COPY OF GRADATION LIST DATED 5/6/07 ISSUED BY THE 2ND RESPONDENT. ANNEXURE-A4: TRUE COPY OF ORDER DATED 26/08/13 IN T.A.NO.6185 OF 2012. ANNEXURE-A5: TRUE COPY OF ORDER DATED 23/10/13 ISSUED BY THE 1ST RESPONDENT. ANNEXURE-A6: TRUE COPY OF ORDER DATED 24/05/14 ISSUED BY THE 1ST RESPONDENT. EXT P2 TRUE COPY OF THE REPLY STATEMENT FILED BY THE RESPONDENTS 4, 5 AND 6 IN O.A NO.1326/2014 OF THIS HONOURABLE TRIBUNAL.** - **ANNEXURE-R4(A): TRUE COPY OF THE LETTER NO.RIGHT TO INFORMATION/400/2008-09 DATED 09/01/09 OF THE STATE PUBLIC INFORMATION OFFICER OF THE OFFICE OF THE 3RD RESPONDENT.** - **ANNEXURE-R4(B): TRUE COPY OF THE G.O (RT) NO.849/71/EDN.DATED 2/6/71.** O.P.(KAT) No.214 of 2018 26 |**ANNEXURE-R4(C):**|**TRUE COPY OF THE LETTER NO.EG2/476/2013**| |---|---| ||**DATED 11/03/14 OF THE 3RD RESPONDENT,**| ||**ADDRESSED TO THE 1ST RESPONDENT.**| |**EXT P3:**|**TRUE COPY OF THE ORDER DATED 02/05/18**| ||**IN OA.1326/204 OF THIS HONOURABLE**| ||**TRIBUNAL.**|