S. Sajeev v. Kerala Khadi and Village Industries Board and Secretary, Kerala Khadi and Village Industries Board

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** **THE HONOURABLE MR. JUSTICE GOPINATH P.** **MONDAY, THE 16TH DAY OF NOVEMBER 2020 / 25TH KARTHIKA, 1942** ## **WA.No.807 OF 2020** **AGAINST THE JUDGMENT DATED 19-05-2020 IN WP(C) 3535/2016(N) OF HIGH COURT OF KERALA** ## **APPELLANT/WRIT PETITIONER:** **S.SAJEEV** **AGED 52 YEARS, S/O.SIVADAS, BEE KEEPING FIELD MAN, DISTRICT KHADI AND VILLAGE INDUSRIES OFFICE, DOWN HILL, MALAPPURAM, NOW RESIDING AT THACHAPARAMBIL HOUSE, VADAKKUMPURAM P.O., VALANCHERRY VIA, MALAPPURAM DISTRICT.** **BY ADV. SRI.K.P.HARISH** ## **RESPONDENTS/RESPONDENTS:** - **1 KERALA KHADI AND VILLAGE INDUSTRIES BOARD VANCHIYOOR P.O., THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY, PIN-695 035.** - **2 THE SECRETARY, KERALA KHADI AND VILLAGE INDUSTRIES BOARD, VANCHIYOOR P.O., THIRUVANANTHAPURAM-695 035.** **R1 & R2 BY ADV. SRI.N. RAJAGOPALAN NAIR, SC, KHADI BOARD.** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 04-112020, THE COURT ON 16-11-2020 DELIVERED THE FOLLOWING:** W.A.No.807/2020 -2- ## **J U D G M E N T** Dated this the 16[th] day of November, 2020 ## Gopinath, J: This writ appeal arises from the judgment of a learned Single Judge of this court in W.P (C) No.3535/2016. The appellant was the petitioner in that Writ Petition which was filed praying _inter alia_ to quash Ext.P14 memo through which the appellant/writ petitioner was informed that he is not entitled to be considered for promotion as Oil Inspector in terms of the applicable Regulations. He also sought for a Mandamus directing the respondents to promote him as an Oil Inspector with effect from 07-12-2004 in terms of the Regulations which were applicable on that date. The learned Single Judge found that on the amendment of the Rules in 2006, the post in which the appellant/petitioner was working ceased to be a feeder category for promotion to the post of Oil Inspector. The learned Single Judge found that though the appellant/petitioner was fully qualified to be considered for promotion till the amendment of the Rules in 2006 there was nothing to show that there were vacancies that were required to be filled up or that anyone junior to the appellant/petitioner had been promoted overlooking the claim of the appellant/petitioner. The learned Single also found that this court W.A.No.807/2020 -3- cannot in exercise of jurisdiction under Article 226 direct that all vacancies should be filled up even if the vacancies were in existence in the light of the judgments of the Supreme Court in _**Deeepthi Agarwal v. Union of India;**_ (2011) 6 SCC 725 and _**D. Raghu and others v. R. Basaveswarudu & others;**_ 2020 (2) Supreme Today 347. The learned Single Judge therefore declined the relief sought for by the appellant/petitioner. However, the Learned Single Judge directed respondents to consider the matter of absence of sufficient avenues of promotion / stagnation etc., when the Rules are amended (which was stated to be under active consideration of the concerned authorities) and further directed that if on amendment of the Rules the appellant/petitioner is found entitled to be promoted he shall be considered for the same. 2. We have heard Ms. Rosin Joseph for the appellant and Sri. N. Rajagopalan Nair, Standing Counsel for Kerala Khadi and Village Industries Board. 3. The learned counsel for the appellant would vehemently contend that the qualifications / method of appointment etc., in the Board were governed by the Kerala Khadi and Village Industries Board (Classification and Conditions of Recruitment of Staff) Regulations (the 'CCR'), 1967. It is contented that these Regulations were amended W.A.No.807/2020 -4- in 1985. She would invite our attention to Ext.P2 which is a copy of the CCR, following the amendments issued on the 29[th] June, 1985 and point out that Beekeeping Field men were in the feeder category for promotion as Oil Inspector. She does not dispute the fact that the CCR had been comprehensively amended in 2006 and that by virtue of such amendment the category of Beekeeping Field man was no longer in the feeder category for promotion as Oil Inspector. She would however draw our attention to Ext.P11 which is a copy of the modified staff pattern in the Board issued on 23-06-2007 to establish that there were 7 posts of Oil Inspector. She would also refer to the pleadings in the writ petition where it is asserted that 5 of the 7 sanctioned posts were remaining vacant at least till 2006 when Beekeeping Field men were removed from the Feeder Category for promotion to the post of Oil Inspector. She would rely on the judgment of the Supreme Court in _**S.B. Bhattacharjee v. S.D. Majumdar and others;**_ (2007) 10 SCC 513 and _**Deepak Agarwal and another v. State of Uttar Pradesh and others;**_ (2011) 6 SCC 725 to contend that the appellant/petitioner being fully qualified to be promoted as Oil Inspector in terms of the provisions contained in the CCR (till its amendment in 2006) was entitled to be considered for promotion considering the fact that there were at least 5 vacancies in that W.A.No.807/2020 -5- category as per the staff pattern in Ext.P11. 4. Sri. N. Rajagopalan Nair, learned Standing Counsel appearing for the Board however would contend that the matter has to be considered only with reference to the 2006 Rules. He would point out that in terms of the provisions contained in 2006 Rules the appellant/petitioner could not claim promotion to the post of Oil Inspector. He would submit that the learned Single Judge had rightly held that even if there were vacancies in existence ever prior to the amendment of the CCR in 2006, the Board was under no compulsion to fill up those vacancies. He would therefore submit that the view taken by the learned Single Judge is perfectly justified in law. 5. We have given our anxious consideration to the contentions raised by both sides. We are of the view that there is substantial merit in the claim put forth by the appellant/petitioner. The fact that the appellant was fully qualified to be promoted as Oil Inspector till the Rules were amended in 2006 is not disputed. The assertion on behalf of the appellant/petitioner that one of his colleagues namely one V.V. Karunakaran who was deputed for training along with the appellant/petitioner for the Village Oil Technical Course was promoted to the post of Oil Inspector in the year 2004 itself is also not disputed. We are in complete agreement with W.A.No.807/2020 -6- the view taken by the learned Single Judge that the employer has every right to decide that a particular vacancy need not be filled up and it is not as if the law requires that every vacancy shall be filled up by the employer. However, as rightly pointed out by the learned counsel for the appellant/petitioner every employee has a right to be considered for promotion. We have anxiously perused the records whether there was any conscious decision taken by the Board not to fill up any vacancy of Oil Inspector till the date on which the Rules were amended, in 2006. We find that the Board has no case that for valid and justifiable reasons the Board has taken a decision not to fill up the vacancy of Village Oil Inspector that existed prior to the amendment of the CCR in 2006. In that view of the matter, we are of the opinion that there was no justification to deny promotion to the appellant/petitioner especially when it is admitted that there were at least five vacancies in the post of Oil Inspector which existed even on the date the CCR was amended in 2006. As rightly held by the learned Single Judge the absence of avenues of promotion and consequent stagnation will defeat the morale of the employees causing discontentment and breeding inefficiency. We therefore feel that this is a case where we should direct the Board to promote the appellant / petitioner notionally to one of the vacancies of Village Oil Inspector W.A.No.807/2020 -7- which was in existence till the Rules were amended in 2006. We would be justified in doing so since it is settled law that all vacancies had to be filled up with reference to the Regulations/Rules in force on the date of occurrence of the vacancy. Useful reference in this regard may be had to the recent judgment of the Supreme Court in _**D. Raghu and others v. R. Basaveswarudu & others (also reported as 2020 OnLine SC 124).**_ In paragraphs 45 to 51 of that judgment, Justice K.M Joseph, speaking for the bench summarized the law in the following manner: - **“** _**45.** In Y.V. Rangaiah (supra), this Court was dealing a case under the Andhra Pradesh Registration and Subordinate Service Rules. The Rule in question, inter alia, contemplated preparation of a panel every year in September. That apart, the Government also issued very clear instructions, which emphasised prompt preparation of panels being essential for increasing administrative efficiency and filling of vacancies without delay. Instead of filling-up vacancies on the 01.09.1976, there was delay and the panel came to be drawnup in 1977 by which time an amendment to the Rules purported to take away rights of the Lower Division Clerks for promotion and the Feeder Category was sought to be confined to the U.D. Clerks. It was in the said factual context that the court proceeded to lay down as follows:_ _“9. Having heard the counsel for the parties, we find no force in either of the two contentions. Under the old rules a panel had to be prepared every year in September. Accordingly, a panel should have been prepared in the year 1976 and transfer or promotion to the post of Sub-Registrar Grade II should have been made out of that panel. In that event the petitioners in the two representation petitions who ranked higher than Respondents 3 to 15 would not have been_ W.A.No.807/2020 -8- _deprived of their right of being considered for promotion. The vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules. It is admitted by counsel for both the parties that henceforth promotion to the post of Sub-Registrar Grade II will be according to the new rules on the zonal basis and not on the State-wide basis and, therefore, there was no question of challenging the new rules. But the question is of filling the vacancies that occurred prior to the amended rules. We have not the slightest doubt that the posts which fell vacant prior to the amended rules would be governed by the old rules and not by the new rules.”_ _**46.** It suffices, for our purpose, to note that the view taken by the Court, in the said case, came to be followed in subsequent judgments, viz., P. Ganeshwar Rao v. State of A.P., 2; P. Mahendran v. State of Karnataka, 3; A.A. Calton v. Director of Education, 4 and N.T. Devin Katti v. Karnataka Public Service Commission, 5._ _**47.** On the other hand, there is another line of decisions which is relied upon by the appellants. Very briefly, the principle is this:_ _Despite availability of vacancies, if the Appointing Authority consciously takes a decision to keep unfilled the vacancies for good reasons, the Rules, as on the day of consideration of the matters relating to promotion, would govern the situation._ _**48.** The representative of this view would be the decision by the Bench of three Judges in K. Ramulu (Dr.) v. (Dr.) S. Suryaprakash Rao, 6 and P. Ganeshwar Rao (supra). In K. Ramulu (Dr.) (supra), the Government had taken a decision to amend the Rules in question. It also took a conscious decision not to fill the vacancies till the amendment. For the years 1995-1996, there was no panel prepared. Essentially on the said facts, this Court held as follows:_ _“12. The same ratio was reiterated in Union of India v. K.V. Vijeesh [(1996) 3 SCC 139 : 1996 SCC (L&S) 683] (SCC paras 5_ W.A.No.807/2020 -9- _and 7). Thus, it could be seen that for reasons germane to the decision, the Government is entitled to take a decision not to fill up the existing vacancies as on the relevant date. Shri H.S. Gururaja Rao, contends that this Court in Y.V. Rangaiah v. J. Sreenivasa Rao [(1983) 3 SCC 284 : 1983 SCC (L&S) 382] had held that the existing vacancies were required to be filled up as per the law prior to the date of the amended Rules. The mere fact that Rules came to be amended subsequently does not empower the Government not to consider the persons who were eligible prior to the date of amendment. It is seen that the case related to the amendment of the Rules. Prior to the amendment of the Rules two sources were available for appointment as Sub-Registrar, namely, UDCs and LDCs. Subsequently, Rules came to be amended taking away the right of the LDCs for appointment as Sub-Registrar. When the vacancies were not being filled up in accordance with the existing Rules, this Court had pointed out that prior to the amendment of the Rules, the vacancies were existing and that the eligible candidates were required to be considered in accordance with the prevailing Rules. Therefore, the mere fact of subsequent amendment does not take away the right to be considered in accordance with the existing Rules. As a proposition of law, there is no dispute and cannot be disputed. But the question is whether the ratio in Rangaiah case [(1983) 3 SCC 284 : 1983 SCC (L&S) 382] would apply to the facts of this case. The Government therein merely amended the Rules, applied the amended Rules without taking any conscious decision not to fill up the existing vacancies pending amendment of the Rules on the date the new Rules came into force. It is true, as contended by Mr. H.S. Gururaja Rao, that this Court has followed the ratio therein in many a decision and those cited by him are P. Ganeshwar Rao v. State of A.P. [1988 Supp SCC 740 : 1989 SCC (L&S) 123 : (1988) 8 ATC 957], P. Mahendran v. State of Karnataka [(1990) 1 SCC 411 : 1990 SCC (L&S) 163 : (1990) 12 ATC 727], A.A. Calton v. Director of Education [(1983) 3 SCC 33 : 1983 SCC (L&S) 356], N.T. Devin Katti v. Karnataka Public Service Commission [(1990) 3 SCC 157 : 1990 SCC (L&S) 446 : (1990) 14 ATC 688], Ramesh Kumar Choudha v. State of M.P. [(1996)_ W.A.No.807/2020 -10- _11 SCC 242 : (1996) 7 Scale 619] In none of these decisions, a situation which has arisen in the present case had come up for consideration. Even Rule 3 of the General Rules is not of any help to the respondent for the reason that Rule 3 contemplates making of an appointment in accordance with the existing Rules._ _13. It is seen that since the Government have taken a conscious decision not to make any appointment till the amendment of the Rules, Rule 3 of the General Rules is not of any help to the respondent. The ratio in the case of Ramesh Kumar Choudha v. State of M.P. [(1996) 11 SCC 242 : (1996) 7 Scale 619] is also not of any help to the respondent. Therein, this Court had pointed out that the panel requires to be made in accordance with the existing Rules and operated upon. There cannot be any dispute on that proposition or direction issued by this Court. As stated earlier, the Government was right in taking a decision not to operate Rule 4 of the General Rules due to their policy decision to amend the Rules. He then relies on para 14 of the unreported judgment of this Court made in Union of India v. S.S. Uppal [(1996) 2 SCC 168 : 1996 SCC (L&S) 438 : (1996) 32 ATC 668]. Even that decision is not of any help to him. He then relies upon the judgment of this Court in Gajraj Singh v. STAT [(1997) 1 SCC 650 : (1996) 7 Scale 31] wherein it was held that the existing rights saved by the repealed Act would be considered in accordance with the Rules. The ratio therein is not applicable because the existing Rules do not save any of the rights acquired or accruing under the Rules. On the other hand, this Court had pointed out (in Scale para 23) thus: (SCC pp. 664-65, para 22)_ _“Whenever an Act is repealed it must be considered, except as to transactions past and closed, as if it had never existed. The effect thereof is to obliterate the Act completely from the record of Parliament as if it had never been passed; it never existed except for the purpose of those actions which were commenced, prosecuted and concluded while it was an existing law. Legal fiction is one which is not an actual reality and which the law recognises and the court accepts as a_ W.A.No.807/2020 -11- _reality. Therefore, in case of legal fiction the court believes something to exist which in reality does not exist. It is nothing but a presumption of the existence of the state of affairs which in actuality is non-existent. The effect of such a legal fiction is that a position which otherwise would not obtain is deemed to obtain under the circumstances. Therefore, when Section 217(1) of the Act repealed Act 4 of 1939 w.e.f. 1-7-1989, the law in Act 4 of 1939 in effect came to be non-existent except as regards the transactions, past and closed or saved.””_ _**49.** In Deepak Agarwal v. State of U.P., 7, one of the two appellants was a Statistical Officer. The other one was a Technical Officer. The Rules prior to their amendment included them in the Feeder Category for the promotion to the post of Deputy Excise Commissioner. The amendment, by which they stood deprived of their right to be considered for promotion, was made considering work experience, duties and qualifications of Statistical Officer and Technical Officers rendering them unfit to be considered for the higher post. The question, which fell for consideration, was posed in paragraph 18 as follows:_ _“18. The short question that arises for consideration is as to whether the appellants were entitled to be considered for promotion on the post of Deputy Excise Commissioner under the 1983 Rules, on the vacancies, which occurred prior to the amendment in the 1983 Rules on 17-5-1999.”_ _**50.** This Court noticed that there was no statutory duty cast on the State to complete the selection process within a prescribed period. It further noted the statutory provision enabling the State to leave a particular post unfilled. It was still further found that the promotion to the vacancies had been made under the amended Rules. The principle laid down in Y.V. Rangiah (supra) came to be distinguished in the following words:_ _“24. We are of the considered opinion that the judgment in Y.V. Rangaiah case [(1983) 3 SCC 284 : 1983 SCC (L&S) 382] would not be applicable in the facts and circumstances of this_ W.A.No.807/2020 -12- _case. The aforesaid judgment was rendered on the interpretation of Rule 4(a)(1)(i) of the Andhra Pradesh Registration and Subordinate Service Rules, 1976. The aforesaid Rule provided for preparation of a panel for the eligible candidates every year in the month of September. This was a statutory duty cast upon the State. The exercise was required to be conducted each year. Thereafter, only promotion orders were to be issued. However, no panel had been prepared for the year 1976. Subsequently, the Rule was amended, which rendered the petitioners therein ineligible to be considered for promotion. In these circumstances, it was observed by this Court that the amendment would not be applicable to the vacancies which had arisen prior to the amendment. The vacancies which occurred prior to the amended Rules would be governed by the old Rules and not the amended Rules.”_ _**51.** Still further, we may notice the following statement of the law contained hereunder:_ _“26. It is by now a settled proposition of law that a candidate has the right to be considered in the light of the existing rules, which implies the “rule in force” on the date the consideration took place. There is no rule of universal or absolute application that vacancies are to be filled invariably by the law existing on the date when the vacancy arises. The requirement of filling up old vacancies under the old rules is interlinked with the candidate having acquired a right to be considered for promotion. The right to be considered for promotion accrues on the date of consideration of the eligible candidates. Unless, of course, the applicable rule, as in Y.V. Rangaiah case [(1983) 3 SCC 284 : 1983 SCC (L&S) 382] lays down any particular time-frame, within which the selection process is to be completed. In the present case, consideration for promotion took place after the amendment came into operation. Thus, it cannot be accepted that any accrued or vested right of the appellants has been taken away by the amendment.”_ W.A.No.807/2020 -13- 6. Having found that the Board has no case that they had taken a conscious decision to keep the vacancies unfilled and this is not a case where ‘ _the Appointing Authority consciously takes a decision to keep unfilled the vacancies for good reasons’_ to use words which we have borrowed from _**D. Raghu and others (supra)**_ and following the _ratio_ of that judgment _**,**_ we allow this writ appeal by setting aside the judgment of the learned Single Judge to the extent it holds that the appellant/petitioner was not entitled to be considered for promotion to the post of Oil Inspector as the Rules (the CCR) has been amended in 2006. We direct the 1[st] respondent Board to consider the appellant/petitioner for promotion to one of the posts of Oil Inspector which was vacant till the time when the Rules were amended in 2006 and to notionally promote the appellant/petitioner as Oil Inspector with reference to the qualifications prescribed by the Rules and they stood prior to amendment in 2006. We also hold that the appellant/petitioner, on promotion as Village Oil Inspector, will not be entitled to the benefit of pay and allowances for the period from the date on which he is notionally promoted to the date on which he is actually promoted pursuant to this judgment. However the service from the date of notional promotion till date of actual portion shall count for all other benefits such as pay fixation, seniority, pensionary W.A.No.807/2020 -14- benefits etc. The needful shall be done within a period of 2 months from the date of receipt of a copy of this judgment. We place on record our appreciation for the way in which this case was argued by Ms.Rosin Joseph for the petitioner and the extremely fair submissions of Sri.N.Rajagopalan Nair, the learned standing counsel for the Khadi and Village Industries Board. In the facts and circumstances of the case, we make no order as to costs. (Sd/-) **A. M. SHAFFIQUE Judge** (Sd/-) **GOPINATH P. Judge** AMG