Ratheesh B. v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.K.JAYASANKARAN NAMBIAR** ## **&** **THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.** **THURSDAY, THE 12[TH] DAY OF JANUARY 2023/22ND POUSHA, 1944** ## **O.P(KAT).NO.86 OF 2022** **AGAINST THE ORDER DATED 16.12.2021 IN O.A.NO.2294/2019 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONER/4TH APPLICANT IN THE O.A:** **RATHEESH B AGED 36 YEARS S/O. BALAKRISHNA PILLAI, WORKING AS DEPUTY PRISON OFFICER, DISTRICT JAIL, KAKKANAD, ERNAKULAM - 682037, RESIDING AT KANJIKKAL VEEDU, EDAPPALLYCOTTA P.O., PANMANA, KOLLAM - 691583.** **BY ADV.SRI.ELVIN PETER P.J. BY ADV.SRI.K.R.GANESH BY ADV.SMT.GOURI BALAGOPAL BY ADV.SRI.ABHIJITH.K.ANIRUDHAN BY ADV.SMT.SREELEKSHMI A.S.** ## **RESPONDENTS/RESPONDENTS 1 TO 5 IN THE O.A.:** - **1 STATE OF KERALA REPRESENTED BY THE SECRETARY, HOME DEPARTMENT, GOVERNMENT SECRETARIAT, STATUE, THIRUVANANTHAPURAM - 695 001, KERALA.** - **2 THE DIRECTOR GENERAL OF PRISONS & CORRECTIONAL SERVICES, PRISONS HEAD QUARTERS, POOJAPPURA P. O., THIRUVANANTHAPURAM, KERALA - 695 012.** - **3 THE KERALA STATE PUBLIC SERVICE COMMISSION REPRESENTED BY THE SECRETARY, THULASI HILLS, PALACE, PATTOM, THIRUVANANTHAPURAM, KERALA - 695 004.** **O.P.(KAT).NO.86 OF 2022 :: 2 ::** - **4 UNNIKRISHNAN V.S. SUPERINTENDENT, SUB JAIL, PEERMADE, IDUKKI, KERALA - 685531.** - **5 AMJITH M. A. ASSISTANT SUPERINTENDENT, CENTRAL JAIL, KANNUR, KERALA - 670004.** **BY SRI.B. UNNIKRISHNA KAIMAL, SR. GOVT. PLEADER BY SRI.P.C. SASIDHARAN, SC, KPSC BY ADV.SRI.R.T.PRADEEP** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 12.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **O.P.(KAT).NO.86 OF 2022 :: 3 ::** ## **J U D G M E N T** ## **A.K. Jayasankaran Nambiar, J.** The 4[th] applicant in O.A.No.2294 of 2019 before the Kerala Administrative Tribunal is the petitioner before us, aggrieved by the order dated 16.12.2021 of the Tribunal in the O.A. The brief facts necessary for disposal of the O.P.(KAT) are as follows: The petitioner is presently working as an Assistant Prison Officer [re-designated as Deputy Prison Officer] in the Jail services under the Home Department. As per the amended Kerala Jail Subordinate Service Special Rules, the method of appointment to the post of Assistant Jailer Grade I and other posts borne on the same cadre is by (i) direct recruitment and (ii) by promotion from the category of Assistant Jailer Grade II. The Notes below the said Recruitment Rules read as follows: Note: (1) 50% of the vacancies in the cadre strength of category 1 shall be filled up by direct recruitment and 50% by promotion in the ratio 1:1. (2) Out of the 50% of the vacancies earmarked for direct recruitment, 20% shall be reserved for qualified executive staff, 20% for qualified ministerial staff and the rest 60% by open quota in the ratio of 1:1:3. In the **O.P.(KAT).NO.86 OF 2022 :: 4 ::** absence of suitable candidates from the executive and the ministerial staff, vacancies shall be filled up from the open quota. 2. The case of the petitioner before the Tribunal was essentially that in the selection process that ensued for filling up vacancies in the post of Assistant Jailer Grade I, the Kerala Public Service Commission [PSC] found that there were no candidates available for direct recruitment against the 20% quota earmarked for ministerial staff, and accordingly, the said vacancies were allotted for filling up from the open quota. The petitioner contended that in the absence of suitable candidates in the 20% quota earmarked for ministerial staff, the said vacancies should have been allotted to candidates among the executive staff for, that would have ensured the granting of vacancies to the departmental candidates, in preference to direct recruits, under the open quota. The petitioner also relied on the judgment of this Court in **Girish Kumar v. State of Kerala – [1995 KHC 137]** to substantiate his contentions. The prayer in the O.A. was for a declaration that the six vacancies that had been reported to the PSC for being filled from among the rank list of the ministerial wing were liable to be recalled and the same filled from the rank list of the executive wing for the purposes of the Special Rules. Other prayers incidental to the aforesaid were also sought for before the Tribunal. **O.P.(KAT).NO.86 OF 2022 :: 5 ::** 3. The Tribunal, by the order impugned in this O.P.(KAT), rejected the contention of the petitioner by finding as follows: “9. I have gone through the judgment relied on by the applicants, the relevant provisions of the Special Rules considered in the above case provided that 50% have to be filled up by direct recruitment and the 50% by promotion/transfer from approved probationers in the category of Technical Assistant/Upper Division Clerk in the department. The Notes to the Rule provides that ratio between Technical Assistant and Upper Division Clerks shall be 1:6, beginning with the appointment of a Technical Assistant. Note 2 provides that in the absence of qualified persons in the categories of Technical Assistant and Upper Division Clerks against the vacancies reserved for them, said vacancies shall be filled up by direct recruitment. In the above case, the Hon'ble High Court has found that the quota set apart for Technical Assistants and the Upper Division Clerks is in internal ratio provided within the 50% quota for promotion/transfer from the approved probationers in the department. Since these are special quota provide within the quota for promotion/transfer, the Hon'ble High Court took the view that such vacancies can go to direct recruitment quota only after considering the claims of all within the 50% quota for promotion/transfer. 10. In the instant case, in the Jail Subordinate Services, the special quota for ministerial staff and executive staff are provided out off them 50% set apart by direct recruitment. It should be noticed that 50% of the cadre strength is already set apart for promotion from the category Assistant Jailor Gr.II. Following the principals adopted by the Hon'ble High Court in **Girish Kumar's case** , shifting of vacancies out side the quota can be effected only after considering the claims of all those belonging to the quota provided under the Special Rules. Therefore, the contention of the applicant's regarding the violation of q1uota rule cannot he accepted. Further, the applicants have no case that the 50% of the direct recruitment quota is exceeded. in such circumstances, the contention of the applicants that there has been violation of quota rule cannot be accepted. 11. The challenge against the appointment of respondents 4 and 5 also cannot be entertained, since it is well in accordance with the provisions in the Special Rules. It is also relevant to **O.P.(KAT).NO.86 OF 2022 :: 6 ::** note here that respondents 4 and 5 and also the applicants in O.A No.1948 of 2017 were appointed from Annexure-A9 ranked list, which is prepared pursuant to a selection initiated in the year 2012 [Category No.474/2012]. The said ranked list was brought into force with effect from 26.05.2015 and was in force upto 26.05.2018. Learned counsel for the respondents are right in contending that those included in the said ranked list are entitled to be advised against any vacancies that arose and reported to the PSC during the currency of the said list, in view of Rule 14 of KPSVC Rules of Procedure. It is also an undisputed fact that when selections were conducted by the PSC for the different classes eligible for direct recruitment pursuant to the notifications issued in the year 2015, there was no suitable candidate among the ministerial staff. It is also on record that advices and appointments were effected from the ranked list prepared for the executive staff in respect of the vacancies set apart for their quota. It is true that the vacancies set apart for the ministerial staff has been shifted for being advised from Annexure-A9 ranked list and appointments were effected. The claim of the applicants that those vacancies should have been shifted to the quotas set apart for executive staff is not supported by any provisions in the Special Rules.” 4. Before us, it is the contention of Sri.Elvin Peter P.J., the learned counsel for the petitioner that the Special Rules clearly envisaged multiple methods of appointment to the post of Assistant Jailer Grade I, and a ratio is prescribed between direct recruitment and promotion where 50% of the posts in the cadre are to be filled by direct recruitment and the remaining 50% by promotion of in-service candidates. Under the quota reserved for direct recruitment, 20% of the vacancies have each been carved out for executive staff and ministerial staff among in-service candidates and the remaining 60% is to be filled by candidates in the open quota. It is his contention that **O.P.(KAT).NO.86 OF 2022 :: 7 ::** inasmuch as Note (2) in the Special Rules contemplates that in the absence of suitable candidates from the executive and ministerial staff, vacancies shall be filled up from open quota, there has to be a situation where there are no candidates available both in the executive and in the ministerial quota, for the vacancy to be then filled from among the open candidates. In other words, the contention seems to be that if there is a situation where the absence of suitable candidates is confined to only one of the quotas namely, either executive or ministerial, then the vacancies allocated for the ministerial quota should be given to the executive quota and vice versa, and it should not go to the open quota since the object sought to be achieved by the Special Rules is supposedly to ensure that adequate vacancies are reserved for in-service candidates in the direct recruitment quota. He once again relies on the judgment of this Court in **Girish Kumar (supra)** to substantiate his contention on merits. 5. Per contra, Sri. B. Unnikrishna Kaimal, the learned Government Pleader appearing for the State Government, Sri. P. C. Sasidharan, the learned Standing counsel for the PSC and the learned counsel appearing for the party respondents would support the finding of the Tribunal in the impugned order and contend that, in the absence of any enabling words in the Special Rules permitting the allocation of **O.P.(KAT).NO.86 OF 2022 :: 8 ::** vacancies earmarked for a particular quota to another quota, the absence of suitable candidates in the quota for ministerial staff could not entail an allocation of those vacancies to candidates in the executive quota. 6. We have considered the rival submissions and we have also gone through the pleadings on record. On a consideration of the same, we find ourselves unable to accept the contention of the learned counsel for the petitioner. The Special Rules clearly provide for filling up the cadre strength to the post of Assistant Jailer Grade I through direct recruitment and promotion. Accordingly, 50% of the vacancies in the post have to be filled up through direct recruitment and 50% by promotion from in-service candidates. The Rules thereafter carve out separate quotas of 20% each from out of the 50% that is earmarked for direct recruitment for filling up from executive staff and ministerial staff respectively working in the Department. The Note below the Special Rules clarifies that in the absence of suitable candidates from executive and ministerial staff, vacancies shall be filled up from the open quota. In our view, since the carving out of the quota for executive staff and ministerial staff is from the quota of 50% that is earmarked for direct recruitment, the absence of any candidate in any of the carved out categories must entail an allocation of that vacancy **O.P.(KAT).NO.86 OF 2022 :: 9 ::** to the main category for which the direct recruitment quota was contemplated namely, the open category. In this context, we are of the view that the use of the word “and” in the Note under the Special Rules has to be read as “and/or” for the purposes of conveying the object of the Rule. A Division Bench of this Court in **Peekay Re-Rolling Mills Pvt. Ltd. v. Secretary to Government and Others - [2011 (1) KHC 826]** relied on the following passage in Earl T. Crawford's Construction of Statutes, Note 188 on disjunctive and conjunctive words which reads as follows:- “In ordinary use, the word 'or' is a disjunctive that marks an alternative which generally corresponds to the word 'either'. In fact of the meaning, however, the word 'or' and the word 'and' are often used interchangeably. As a result of this common and careless use of the two words in legislation, there are occasions when the Court, through construction, may change one to the other. This cannot be done if the statute's meaning is clear, or if the alteration operates to change the meaning of the law. It is proper only in order to more accurately express, or to carry out the obvious intent of the legislature, when the statute itself furnishes cogent proof of the error of the legislature and especially where it will avoid absurd or impossible consequences, or operate to harmonize the statute and give effect to all of its provisions”. When the word 'and' is read as 'and/or', the Special Rules would require that in the absence of suitable candidates either in the quotas earmarked for executive or ministerial staff or in both, the vacancies have to be filled up from the open quota, which is the residual category of direct recruitment. This, in our view, would be the correct **O.P.(KAT).NO.86 OF 2022 :: 10 ::** way to read the Special Rules, for, it is more conducive to attaining the objects sought to be achieved through the prescription of quotas, and carving them out of the main quota of 50% meant for direct recruitment of open candidates. The judgment relied upon by the learned counsel for the petitioner also is clearly distinguishable on facts as has already been noticed by the Tribunal in the order extracted above and impugned in this O.P.(KAT). We therefore see no reason to interfere with the impugned order of the Tribunal, and for the reasons stated above, the O.P.(KAT) fails, and is accordingly dismissed. **Sd/A.K.JAYASANKARAN NAMBIAR JUDGE** **Sd/MOHAMMED NIAS C.P. JUDGE** **prp/** **O.P.(KAT).NO.86 OF 2022 :: 11 ::** ## **APPENDIX OF O.P.(KAT).NO.86/2022** ## **PETITIONER'S EXHIBITS:** **Exhibit P1 TRUE COPY OF THE O.A.NO.2294/2019 FILED BY THE PETITIONER BEFORE THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM.** **ANNEXURE A1 TRUE COPY OF THE GO(P) NO.266/2010/HOME DATED 09.12.2010. ANNEXURE A2 TRUE COPY OF GAZETTE NOTIFICATION DATED 11.06.2015 ISSUED BY THE PSC IN CATEGORY NO.170/2015. ANNEXURE A3 TRUE COPY OF THE SHORT LIST BEARING NO.05/2018/ERIII DATED 01.02.2018 IN CATEGORY NO.170/2015 ISSUED BY R3. ANNEXURE A4 TRUE COPY OF THE RANKED LIST NO.711/18/SS IV IN CATEGORY NO.170/2015 DATED 16.10.2018 ISSUED BY R3. ANNEXURE A5 TRUE COPY OF THE NOTIFICATION ISSUED IN THE POST OF ASSISTANT JAILOR GRADE I IN CATEGORY NO.168/2015 DATED 11.06.2015 ISSUED BY R3. ANNEXURE A6 TRUE COPY OF THE SHORT LIST BEARING NO.SL NO.232/16/ERIII DATED 14.10.2016 IN CATEGORY NO.168/2015. ANNEXURE A7 TRUE COPY OF THE RANKED LIST BEARING NO.71018/SSIV PUBLISHED BY THE PSC WITH RESPECT TO CATEGORY NO.168/2015 DATED 16.10.2018. ANNEXURE A8 TRUE COPY OF THE NOTIFICATION AS SL. NO.233/16/ER XIII DATED 14.10.2016 IN** **O.P.(KAT).NO.86 OF 2022 :: 12 ::** ## **CATEGORY NO.169/2015 ISSUED BY THE PSC.** **ANNEXURE A9 TRUE COPY OF THE RANKED LIST BEARING NO.213/2015/SSIV PUBLISHED BY THE PSC ON 26.05.2015 IN CATEGORY NO.474/2012.** **ANNEXURE A10 TRUE COPY OF THE INTERIM ORDER IN OA NO.1948/2017 DATED 31.10.2017 PASSED BY THE HON'BLE KERALA ADMINISTRATIVE TRIBUNAL.** - **ANNEXURE A11 TRUE COPY OF THE LETTER NO.22/B3/2019/HOME DATED 21.03.2019 ISSUED BY THE 1ST RESPONDENT TO THE 3RD APPLICANT.** **ANNEXURE A12 TRUE COPY OF THE ADVICE CHART BEARING NO.R1(C) (1) 11275/2018/GW IN CATEGORY NO.168/2015 REGARDING THE ADVICE OF 13 CANDIDATES ON 14.01.2019.** **Exhibit P2 TRUE COPY OF THE MA NO.275/2020 FILED BY THE APPLICANTS IN OA NO.2294/2019.** - **ANNEXURE A13 TRUE COPY OF THE NOTIFICATION ISSUED BY THE PSC DATED 05.02.2020 IN CATEGORY NO.496/2019.** - **ANNEXURE A14 TRUE COPY OF THE NOTIFICATION ISSUED BY THE PSC DATED 05.02.2020 IN CATEGORY NO.496/2019.** **Exhibit P3 TRUE COPY OF THE MA NO.414/2020 DATED 12.02.2021 FILED IN OA NO.2294/2294.** **ANNEXURE A15 TRUE COPY OF THE NOTIFICATION BERING NO.E64352/2020/PRHQ ISSUED BY THE 2ND RESPONDENT DATED 27.02.2020 ALONG WITH PROVISIONAL SENIORITY LIST OF ASSISTANT SUPERINTENDENT GRADE I AS ON 01.01.2020 BEARING NO.GENERAL E6-4352/2020/PRHQ-998 DATED 27.02.2020.** **Exhibit P4** **TRUE COPY OF THE MA NO.1207/2021 DATED** **O.P.(KAT).NO.86 OF 2022 :: 13 ::** ## **02.07.2021 FILED IN OA NO.2294/2294.** ## **ANNEXURE A15** **TRUE COPY OF THE NOTIFICATION BEARING N O.E6-14567/2021/PHQ DATED 12.06.2021 ALONG WITH RELEVANT PAGES OF THE PROVISIONAL SENIORITY LIST OF ASSISTANT SUPERINTENDENT GRADE I AS ON 01.01.2021.** - **Exhibit P5** - **TRUE COPY OF THE MA NO.1732/2020 IN OA NO.2294/2019 DATED 25.11.2020 FILED BY THE APPLICANTS.** - **Exhibit P6 TRUE COPY OF THE MA NO.1820/2021 IN OA NO.2294/2019 DATED 14.09.2021 FILED BY THE APPLICANTS.** - **Exhibit P7 TRUE COPY OF THE MA NO.2016/2021 IN OA NO.2294/2019 DATED 29.06.2021 FILED BY THE APPLICANTS.** - **Exhibit P8 TRUE COPY OF THE STATEMENT FILED BY THE 2ND RESPONDENT IN OA NO.2294/2019.** - **ANNEXURE R2(a)** - **TRUE COPY OF THE LETTER NO.E628477/2019/PRHQ DATED 13.10.2021 ISSUED BY THE DIRECTOR GENERAL OF PRISONS AND CORRECTIONAL SERVICES, POOJAPPURA.** - **Exhibit P9 TRUE COPY OF THE REPLY AFFIDAVIT FILED BY THE 1ST RESPONDENT IN OA NO.2294/2019.** - **ANNEXURE R1(A)** - **TRUE COPY OF THE KERALA JAIL SUBORDINATE SERVICE (AMENDMENT) RULES 2010.** - **Exhibit P10** - **TRUE COPY OF THE M.A.NO.2348/2021 IN OA NO.2294/2019 ALONG WITH ANNEXURES FILED BY THE APPLICANTS.** - **ANNEXURE A16** **TRUE COPY OF THE QUERY UNDER RTI ACT DATED 16.10.2021 SUBMITTED BY ADV. ABDUL WAHID.** **O.P.(KAT).NO.86 OF 2022 :: 14 ::** - **ANNEXURE A16(a)** - **TRUE COPY OF THE REPLY BEARING NO.E627194/2021/PHQ DATED 15.11.2021 ISSUED BY THE 2ND RESPONDENT.** - **ANNEXURE A17** - **TRUE COPY OF THE DETAILS OF VACANCIES IN VARIOUS POSTS AS ON 01.11.2021 PUBLISHED BY THE 2ND RESPONDENT.** ## **Exhibit P11** - **TRUE COPY OF THE MA NO.2470/2021 DATED 14.12.2021 FILED IN OA NO.2294/2019 FILED BY THE APPLICANTS.** - **ANNEXURE A19 TRUE COPY OF THE JUDGMENT IN GIRISH KUMAR V. STATE OF KERALA, 1995 KHC 137 OF THE HON'BLE HIGH COURT OF KERALA.** - **ANNEXURE A20 TRUE COPY OF THE JUDGMENT IN MAHESH CHANDRA GUPTA, ADVOCATE V. UNION OF INDIA & OTHERS DATED 06.07.2009 OF THE HON'BLE SUPREME COURT OF INDIA (CASE NO.6/2009).** - **ANNEXURE A21 TRUE COPY OF THE JUDGMENT IN M RADHAKRISHNAN V. UNION OF INDIA DATED 11.06.2018 OF HON'BLE MADRAS HIGH COURT (WP NO.13921/2018).** - **ANNEXURE A22 TRUE COPY OF THE JUDGMENT IN M/S HYDERABAD ASBESTOS CEMENT V. UNION OF INDIA DATED 07.12.2019 OF THE HON'BLE SUPREME COURT.** - **Exhibit P12** - **TRUE COPY OF THE REPLY STATEMENT FILED BY RESPONDENTS 4 & 5.** - **ANNEXURE R4(a) TRUE NOTIFICATION SL. NO.233/16/ER XIII DATED 14.10.2016 ISSUED BY THE 3RD RESPONDENT.** **ANNEXURE R4(b) TRUE COPY OF THE RTI QUERY SUBMITTED BEFORE THE 2ND RESPONDENT ON 01.11.2018.** **O.P.(KAT).NO.86 OF 2022 :: 15 ::** ## **RESPONDENT'S EXHIBITS:** **Exhibit-R4(a) TRUE COPY OF ORDER DATED 1.7.2021 BY WHICH PROMOTIONS WERE EFFECTED AS DEPUTY SUPERINTENDENT.** ## **PETITIONER'S EXHIBITS:** **ANNEXURE R4(c)** **TRUE COPY OF THE RTI REPLY ISSUED BY THE PUBLIC RELATION OFFICER ATTACHED TO THE OFFICE OF THE 2ND RESPONDENT DATED 26.11.2016.** ## **RESPONDENT'S EXHIBITS:** **Exhibit-R4(b)** **TRUE COPY OF ORDER DATED 13.7.2022 BY WHICH THE PROMOTIONS AS DEPUTY SUPERINTENDENT ARE REGULARIZED.** ## **PETITIONER'S EXHIBITS:** **Exhibit P13** **CERTIFIED COPY OF THE ORDER DATED 16.12.2021 IN OA NO.2294/2019 OF THE HON'BLE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM.** **//TRUE COPY//**