Prasad K. et al. v. District Judge, Malappuram, Kerala Public Service Commission, State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI** **FRIDAY, THE 20TH DAY OF JUNE 2014/30TH JYAISHTA, 1936** ## **WP(C).No. 7187 of 2011 (R)** ## **--------------------------------------** ## **PETITIONER(S):** - **-----------------------** **1. PRASAD.K., S/O.LATE MADHAVAN NAIR, 'ANUGRAHA', EDATHUPURAM TEMPLE ROAD, ANGADIPURAM, MALAPPURAM DISTRICT.** **2. RAJEEV PAMBALATH, S/O. CHANDRAN, PAMBALATH HOUSE, MAKKARAPARAMBA, MALAPPURAM DISTRICT-676 507.** **3. SAJEENA PUNNAKATTUKUZHI, D/O. ABDULLA P.K., PUNNAKATTUKUZHIYIL HOUSE, THIRURKKAD MALAPPURAM DISTRICT.** **4. LAKSHMANAN N., S/O. KARI N.K., NECHIKATTUKUNDIL HOUSE, KUTTOOR NORTH P.O. A.R.NAGAR (VIA), MALAPPURAM DISTRICT.** **5. UNNIKRISHNAN P., S/O. GANGADHARAN, PANAMUKKIL HOUSE, THEYYANGAD, PONNANI P.O. MALAPPURAM DISTRICT.** **6. SANDHEEPKUMAR, S/O. SANKARANARAYANAN, CHERKAPARAMBIL HOUSE, P.O.TRIPRANGODE, PIN-676 108, MALAPPURAM DISTRICT.** **7. SOUMYA RAJENDRAN K.K., D/O. RAJENDRAN K.K., KATTIKOLOTH HOUSE, SOORYAGIRI CHETTIPADI P.O., PARAPPANANGADI, MALAPPURAM DISTRICT.** ## **BY ADV. SRI.U.K.DEVIDAS** ## **RESPONDENT(S):** **-------------------------** **1. DISTRICT JUDGE, MALAPPURAM DISTRICT, MANJERI-676 121.** **2. THE KERALA PUBLIC SERVICE COMMISSION, PATTOM, THIRUVANANTHAPURAM.** **PJ** **....2/-** **..2..** **WP(C).No. 7187 of 2011 (R)** ## **--------------------------------------** **3. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-1.** *** ADDL.R4 TO R31 IMPLEADED** ## **4. SUNILKUMAR.V.** - **THOTTUNGAL HOUSE, VEETHANASSERI CHATHANGOTTUPURAM.P.O., WANDOOR VIA. MALAPPURAM DISTRICT, PIN - 679328.** ## **5. UMMER BABU.K.M.** - **MATTUMMAL KANDY HOUSE, CHEEKODE POST, PIN - 673645 MALAPPURAM DISTRICT.** ## **6. SAKKER HUSSAIN.M.** - **MATTATHOOR HOUSE, MALIYAKKAL, KOORAD.P.O. - 679339 MALAPPURAM DISTRICT.** ## **7. BALAMURALI MENON.M.** - **MURALI SADANAM, VEZHAKODE, POOVOOTHIKKAL.P.O. - 673639 AREACODE (VIA), MALAPPURAM DISTRICT.** ## **8. THASLIM.C.** - **CHERIYAKATHU HOUSE, KATTUMUNDA, NADUVATHU.P.O. PIN-679328, MALAPPURAM DISTRICT.** ## **9. ABDULLA.K.P.** - **KARIYAPARAMBATH HOUSE, MUTHUPARAMBU.P.O.- 673638, KONDOTTY (VIA), MALAPPURAM DISTRICT.** **10. PREETHA.K.V. PAKKAMADATHIL HOUSE, PALLIKUTH.P.O., CHUNGATHARA.** **11. BYJU.V.K. VALIYAKULANGARA, CHENNOVA.P.O., MANGALUR -676561.** ## **12. VIJAYAN.M.** - **PULIKKAL HOUSE, THUDIMUTTY BHOODHAN COLONY.P.O. MALAPPURAM DISTRICT, PIN - 679334.** **13. GEETHA.K. KOOZHAMPALLIYALIL HOUSE, PALATHOLE.P.O. CHERUKARA (VIA), MALAPPURAM DISTRICT, PIN -679340.** **14. CHRISTOPHER.G. KALIYATTU PARAMBA, JOSEPH ROAD, BEACH.P.O.- 673032 KOZHIKODE.** **PJ** **...3/-** **..3..** **WP(C).No. 7187 of 2011 (R)** ## **--------------------------------------** ## **15. LUKOSE SCARIA** - **PLAMKADAVIL HOUSE, VAZHOOR.P.O. -686504 KOTTAYAM DISTRICT.** **16. ABDUL SAMEER.V.P. VADAKKUMPURATH HOUSE, VALLIKAPETTA.P.O., MANKADA (VIA) MALAPPURAM DISTRICT, PIN -679324.** ## **17. ANEESHMON.P. PADIYARA HOUSE, CHERUKARA.P.O., PERINTHALAMANNA (VIA) MALAPPURAM DISTRICT, PIN - 679340.** ## **18. PADMAVATHI.K.** ## **KOZHIKKALATHIL HOUSE, ANNUNNIPARAMBA, UP- HILL, MALAPPURAM DISTRICT, PIN - 676505.** **19. GOPALAKRISHNAN.R.K. POKKATTE HOUSE, KOORIYAD.P.O.- 676306. MALAPPURAM DISTRICT.** ## **20. RANJITH.P.** ## **POLPARAMBATH HOUSE, THEKKANKUTTUR.P.O. KALPAKANCHERRY VIA., MALAPPURAM DISTRICT, PIN -676551.** ## **21. GIREESH MALAYIL** - **MALAYIL HOUSE, OLAKARA.P.O. -676306, PUKAYOOR MALAPPURAM DISTRICT.** ## **22. THOMAS.J.** - **POCHAYIL ERAKKAN, MALIBHAGOM CHAVARA SOUTH.P.O. -691584, KOLLAM.** ## **23. MUBASHEER,** ## **PULIKKAL HOUSE, KEEZHUPARAMBA.P.O MALAPPURAM DISTRICT.** ## **24. BISHA.V.K.** - **VANNERIKATTIL EDAPPAL POST -679576, MALAPPURAM DISTRICT.** ## **25. MARY.B.** - **THEKKEVEETTIL, ERAKKAM, THEKKUMBHAGUM CHAVARA SOUTH.P.O. -691584, KOLLAM DISTRICT.** **26. REMA.E. ELACHINI HOUSE, P.O.TRIKKANAPURAM, TAVANUR VIA. MALAPPURAM DISTRICT.** **PJ** **...4/-** **..4..** **WP(C).No. 7187 of 2011 (R)** ## **--------------------------------------** ## **27. SWAYAMPRABHA.M.** **W/O.ADV.K.P.CHANDRAN, 'ROSE', PUTHARIKKAL PARAPPANANGADI.P.O.- 676303, MALAPPURAM DISTRICT.** ## **28. RAMAKRISHNAN.K.** **KAKKANCHIRA HOUSE, ANJUKUNNU.P.O., MANANTHAVADY (VIA) WAYANAD DISTRICT, PIN 670645.** **29. SURESH.K. KANAYAMKODE HOUSE, POST VELLUR -676517, VIA POOKKOTTUR, MALAPPURAM DISTRICT.** ## **30. RAJAGOPALAN.E.M.** **ELIYAPRA HOUSE, VATTAMKULAM.P.O. -679578, EDAPPAL VIA. MALAPPURAM DISTRICT.** ## **31. UMMUSALMA** **THODIYIL HOUSE, MAMBATTUMOOLA, MALAPPURAM DISTRICT. ADDL. R4 TO R31 IS IMPLEADED AS PER ORDER DATED 17.06.2011 IN IA 9110/2011 IN WPC.NO.7187/2011.** ## *** ADDL.R32 IMPLEADED** **32. THE REGISTRAR (SUBORDINATE JUDICIARY) HIGH COURT BUILDING, ERNAKULAM, KOCHI -31. ADDL. R32 IS IMPLEADED SUO MOTU AS PER ORDER DATED 11.04.2013.** **R1,R3 BY ADV. GOVERNMENT PLEADER SRI.JIBU P. THOMAS R2 BY SRI.P.C.SASIDHARAN, SC, KPSC R4-31 BY ADV. SRI.K.P.SUDHEER R32 BY ADV. SRI.B.UNNIKRISHNA KAIMAL** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 2/6/2014 ALONG WITH WPC. 31442/2011, THE COURT ON 20-06-2014, DELIVERED THE FOLLOWING:** **PJ** ## **WP(C).No. 7187 of 2011 (R)** ## **--------------------------------------** ## **APPENDIX** ## **PETITIONERS' EXHIBITS** **----------------------------------** - **P1: COPY OF THE RANKED LIST DATED 7/12/10 PUBLISHED IN THE OFFICIAL WEBSITE OF THE 2ND RESPONDENT** - **P2: COPY OF THE NOTIFICATION DATED 12/4/07** - **P3: COPY OF THE INFORMATION GIVEN BY THE FIRST RESPONDENT UNDER THE RIGHT TO INFORMATION ACT.** - **P4: COPY OF THE RELEVANT PAGE OF THE SPECIAL RULE FOR LAST GRADE SERVICE** - **P5: COPY OF THE REPRESENTATION DATED 14/2/2011 FILED BEFORE THE SECOND RESPONDENT** - **P6: COPY OF THE REPRESENTATIONS DATED 14/2/11 FILED BEFORE THE CHIEF MINISTER OF KERALA.** ## **RESPONDENTS' EXHIBITS** ## **-------------------------------------** **NIL.** ## **/ TRUE COPY /** ## **P.S. TO JUDGE** **PJ** ## **A.V. RAMAKRISHNA PILLAI, J.** **-------------------------------------------------W.P.(C) Nos. 7187 & 31442 of 2011, 1707 of 2012 and 10896 & 23332 of 2013 -------------------------------------------------Dated this the 20[th] day of June, 2014** ## **J U D G M E N T** In these writ petitions, the petitioners allege that the vacancies of Process Servers in certain judicial districts in the State are not reported by the District Judges concerned to the Kerala Public Service Commission for being appointed in the Judicial Department in those districts. Item nos.(i) and (ii) under Category 8 of the Special Rules for Last Grade Service are also challenged by some of the petitioners. 2. For convenience of discussion, WP(C) No.7187/2011 can be referred to as, “Petition No.1”; WP(C) No.31442/2011 can be referred to as, “Petition No.2”; WP(C) No.1707/2012 can be referred to as, “Petition No.3”; WP(C) No.10896/2013 can be referred to as, “Petition No.4”; and WP(C) No.23332/2013 can be referred to as, “Petition No.5”. WP(C) No.7187/2011 & conn. cases **==> picture [20 x 9] intentionally omitted <==** 3. The petitioners in Petition No.1 are candidates included in Ext.P1 ranked list in that writ petition published by the Kerala Public Service Commission for appointment to the post of Process Server in the Judicial Department of Malappuram District. They allege that though a number of vacancies were already reported in other districts, the District Judge, Malappuram, is not reporting vacancies to the Public Service Commission in spite of Exts.P5 and P6 representations. They also challenge item no.(ii) under Category 8 of the Special Rules for Last Grade Service. 4. The petitioners in Petition No.2 are included in Ext.P1 ranked list of that writ petition for being considered for appointment as Process Server in the Judicial Department in Pathanamthitta District. According to them, though there are vacancies in Pathanamthitta District, the District Judge, Pathanamthitta, is not reporting vacancies for appointment. They also allege that there are no persons WP(C) No.7187/2011 & conn. cases **==> picture [20 x 9] intentionally omitted <==** working in the Last Grade Service qualified to be promoted to the post of Process Server. They also seek for a change in the ratio fixed as per the rules. 5. In Petition No.3, the petitioner is the rank holder in Ext.P1 ranked list for the post of Process Server in the Judicial Department in Wayanad District. He alleges that though vacancies are there in the Judicial Department, the same are not reported to the Public Service Commission and the appointments are being made by promotion from Peons, who have not completed the period of probation in the entry cadre. He also prays for a ratio to be fixed between persons qualified to be appointed by transfer, by promotion as well as by direct recruitment. 6. The petitioners in Petition No.4 are included in Ext.P1 ranked list in that writ petition for being appointed as Process Server at Kannur District. They also allege that though vacancies are there, the same are not reported to the Public Service Commission by the District WP(C) No.7187/2011 & conn. cases **==> picture [20 x 9] intentionally omitted <==** Judge, Kannur District. They further allege that respondents 4 to 30, who were originally appointed as Peons, were promoted to the post of Process Server before completing their probation period, which is illegal. They also seek for fixation of ratio for appointment to the post of Process Server between promotees and direct recruitees. 7. The petitioner in Petition No.5 is the second rank holder in Ext.P1 ranked list in that writ petition for appointment to the post of Process Server in Pathanamthitta District. She also alleges that though vacancies were there, the same were not reported by the District Judge, Pathanamthitta to the Public Service Commission. 8. Detailed counter affidavits have been filed by the State, Kerala Public Service Commission, party respondents as well as the High Court of Kerala. 9. In the counter affidavit, the stand taken by the respondent State is that the question of reporting any WP(C) No.7187/2011 & conn. cases **==> picture [20 x 9] intentionally omitted <==** vacancy does not arise as so many persons in the Feeder Category are awaiting appointment; and only in the absence of persons in the Feeder Category, the question of direct recruitment arises. 10. In the counter affidavit filed by the Kerala Public Service Commission, they have contended that they only performed its constitutional obligation by recruiting candidates as per the request of the appointing authority; and it is the bounden duty of the Commission to advise candidates against vacancies reported within the validity period of a ranked list; and advice has been issued against all the vacancies reported by the appointing authority. 11. In the counter affidavit filed by the High Court of Kerala, it was contended that there are no vacancies in the districts referred to above for being appointed by direct recruitment. 12. In Petition No.1, additional respondents 4 to 32, who are working in the Judicial Department, filed counter affidavit alleging that they are qualified persons in the WP(C) No.7187/2011 & conn. cases ..6.. Judicial Department and entitled to get promotion. 13. In the counter affidavit filed by the party respondents in Petition No.4, who are promotees, submitted that they entered service as Peons in the Judicial Department and promoted as Process Servers. Regarding the allegation that some of them got promotion before completion of probation, it was contended that no provision in the Special Rules for Last Grade Service is provided for completion of probation as a condition for promotion to the post of Process Servers. Therefore, they contended that the promotion granted to them as Process Server is perfectly in order. According to them, only after filling up the vacancies by resorting to item nos.(i) and (ii) of Category 8 of Rule 5, item no.(iii) can be resorted (direct recruitment). Therefore, they prayed for a dismissal of the writ petitions. 14. Arguments have been heard. 15. Most of the petitioners challenge item nos.(i) and (ii) of Category 8 under Special Rules for Last Grade WP(C) No.7187/2011 & conn. cases **==> picture [20 x 9] intentionally omitted <==** ## Service. Category 8 reads as follows; “Category 8: - (i) By appointment from among qualified persons in the Judicial Department carrying similar or identical scale of pay, according to seniority and willingness; ## OR - (ii)In the absence of qualified persons under item (i) above, by promotion from among the qualified persons in the Last Grade Service in the Department according to seniority; ## OR - (iii)In the absence of qualified persons under items (i) and (ii) above, by direct recruitment.” The rule makes it clear that the third method, i.e., appointment by direct recruitment, can be resorted only in the absence of qualified persons under item nos. (i) and (ii). 16. In addition to the challenge raised against the aforesaid rule, some of the petitioners have pointed out that persons from the Feeder Category, who had not successfully completed the period of probation, were promoted to the post of Process Server, which, according to them, is absolutely illegal. The learned counsel for the WP(C) No.7187/2011 & conn. cases **==> picture [20 x 9] intentionally omitted <==** petitioners, inviting my attention to a decision to a decision of a Division Bench of this Court in **Easwaran Namboodiri V.G.** v. **Travancore Devaswom Board** [2010 KHC 445], argued that the employee has to complete the minimum period of probation in the lower category for promotion to the higher category, though declaration to that effect has not been effected as on the date of promotion. 17. Going through the aforesaid decision, it can be seen that the said decision was rendered into in the light of Rule 8(3) of the Travancore Devaswom Board Rules, 1979. Though the general rules (Rule 28 Part II of KS & SSR) provided for completion of probation for a promotion to the higher grade, Rule 3 of the Special Rules makes it clear that Part II of the KS & SSR other than rules 3, 4, 7, 9, 10(c), 14, 15, 16, 17, 18(h) and 27 shall not apply to the said service. Therefore, it can be safely held that there is no provision in the Special Rules, which provides for completion of probation for the Last Grade Service as a WP(C) No.7187/2011 & conn. cases **==> picture [20 x 9] intentionally omitted <==** condition to promotion to the post of Process Servers. Viewed in that profile, the argument advanced by the petitioners that appointments under item nos.(i) and (ii) of Category 8 are without considering the question of declaration of probation, has no force. 18. In some of the writ petitions, there is a specific prayer for fixation of ratio among the promotees and the direct recruitees. The legislature in its wisdom has made a provision to safeguard the interests of the Last Grade Employees as well as persons carrying similar or identical scale of pay to avoid frustration due to stagnation. That is why, it was made clear in the rules that the appointment by direct recruitment can be resorted to only in the absence of persons under item nos.(i) and (ii). It cannot be said that the rule is discriminatory; and therefore, it cannot be annulled. 19. Though it was challenged by all the petitioners that vacancies of Process Servers are there in the district for being reported to the Kerala Public Service WP(C) No.7187/2011 & conn. cases **==> picture [26 x 9] intentionally omitted <==** Commission, in the counter affidavit filed by the High Court of Kerala, it is made clear that as persons to be promoted from item nos.(i) and (ii) under Category 8 are there, there cannot be any question of reporting any vacancies. On a consideration of the entire materials now placed on record, this Court is of the view that the petitioners are not entitled to succeed. Therefore, the writ petitions are dismissed, but, without costs. Sd/- **A.V. RAMAKRISHNA PILLAI, JUDGE** bka/-