Sonu John v. State of Kerala and Kerala Public Service Commission

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **WEDNESDAY, THE 04TH DAY OF DECEMBER 2019 / 13TH AGRAHAYANA, 1941** ## **OP(KAT).No.503 OF 2019** **AGAINST THE ORDER/JUDGMENT IN OA 1832/2019 DATED 19-11-2019 OF KERALA ADMINISTRATIVETRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONER/S:** **SONU JOHN AGED 44 YEARS S/O. JOHN MATHEW, STATISTICAL INVESTIGATOR GRADE I, TALUK STATISTICAL OFFICE, MINI CIVIL STATION, KANJIRAPALLY, KOTTAYAM DISTRICT, RESIDING AT KOTTACKUPURATHU HOUSE, ELANTHOOR P.O., PATHANAMTHITTA DISTRICT.** ## **BY ADV. SRI.V.PHILIP MATHEW** ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY ITS SECRETARY, DEPARTMENT OF PERSONNEL AND ADMINISTRATIVE REFORMS, KERALA GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **2 KERALA PUBLIC SERVICE COMMISSION REPRESENTED BY ITS SECRETARY, OFFICE OF THE PUBLIC SERVICE COMMISSION PATTOM P.O., THIRUVANANTHAPURAM-695 001.** ## **OTHER PRESENT:** ## **SR.GP SRI.P.N.SANTHOSH, SRI.P.C.SASIDHARAN,SC, PSC** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 04.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** O.P (KAT) 503/2019 2 ## **JUDGMENT** **Dated this the 04[th] day of December, 2019** ## **K.Vinod Chandran, J** **The petitioner is a Statistical** **Investigator Grade I who is aggrieved with his in eligibility to apply for the Kerala Administrative Service(KAS) for reason of he being above the age limit prescribed. The petitioner before the Tribunal challenged the prescription of age limit and by an M.A sought for provisional participation in the recruitment process. The Tribunal rejected the claim for provisional participation in the selection process, for reason of the definite prescription in the notification.** ## **2. The learned Counsel for the petitioner** **would argue that the petitioner who joined Government service in 2006 had given up other plum appointments offered to him to try his luck in a** O.P (KAT) 503/2019 3 **selection to the KAS; introduction of which was proposed long back. The petitioner contends that he had a legitimate expectation which is shattered now for reason of prescription of age limit. The petitioner prays that Government be directed to grant at least a one time chance to those persons who have crossed the age of 40. Quite realising the fact that this Court would not interfere in a policy decision, learned Counsel for the petitioner vehemently prays for interference relying on the decision of the Hon'ble Supreme Court in** _**2012 (6) SCC 502[Brij Mohan Lal v. Union of India and others].**_ **This Court has ample powers to interfere even in a policy decision as held by the Hon'ble Supreme Court; is the compelling argument.** **3. The Tribunal, by the impugned interim order found that since the petitioner is not covered by the Special Rules prescribed and belong to an excluded category there can be no interim order granted to accept the online application to** O.P (KAT) 503/2019 4 **the post of KAS (Junior Time Scale).** **4. We see that Stream I is by direct recruitment and Stream II, through by-Transfer recruitment from regular employees or approved probationers in any Government Department between age of 21 and 40 years. As far as Stream III is concerned even persons having age between 40 and 50 years are entitled to apply, but, however only employees of those departments which are included under Schedule I.** **5. We do not think there is any ground of legitimate expectation available to the petitioner. The petitioner's contention is that after joining service in the year 2006, he was offered an appointment in the Kerala Agricultural University in the year 2007 and with Mahatma Gandhi University in 2011. He sacrificed these plum appointments only for** **the purpose of joining the KAS; is the submission. The ground of legitimate expectation is also urged on the proposal of constituting KAS having been in** O.P (KAT) 503/2019 5 **the consideration of the Government of Kerala for long years.** **6. We do not find any definite promise having been extended to the Government employees by mere reason of contemplation of creation of a new service in the State. The proposals crystallized only with the Special Rules being framed in the year 2017. For a legitimate expectation to arise the promise made by an authority should be clear, unequivocal and unambiguous. Only then, a person can claim that the authority in all fairness should not act contrary to the promise.** _**[(2019) 9 SCC 710) Kerala State Beverages (M&M) Corporation Limited v. P P Suresh and others)].**_ **We do not see any such promise having been extended to the petitioner or any of the Government servants.** **7. Admittedly, even in the year 2017 there was a prescription of maximum age and the petitioner chose to challenge the prescription only in the year 2019. The petitioner's contention is that even when** O.P (KAT) 503/2019 6 **an amendment was attempted to the Special Rules, the prescription of maximum age remained as such, which according to us does not confer on him a different cause of action.** **8. The petitioner's choice, of remaining in the Government service without accepting the other offers of appointment was his own conscious decision based on a hope he nurtured and not motivated by any promise extended to him by the employer. If, by his own choice, he lost out, he has only himself to blame and there cannot be any ground set up of legitimate expectation.** **9. We also are of the opinion that the prescription of maximum age for recruitment into a service either from the public or from the Government employees is a policy decision coming within the exclusive domain of the Government. What** **has been held in** _**Brij Mohan Lal (supra)**_ **also is that** _**“the Supreme Court is not oblivious of the principle that policy decisions should be**_ O.P (KAT) 503/2019 7 _**interfered with rarely”(sic.).**_ **In that case limited interference was made only taking into account the need for improvement of the justice delivery system and fortification of independence of judiciary while ensuring attainment of constitutional goals to do complete justice. There is no such compelling circumstances herein, requiring this Court to interfere with the prescription of a maximum age for recruitment into a service now created by the Government for the purpose of manning the higher echelons of the State administration.** **We find no reason to interfere with the order and we reject the original petition** _**in limine.**_ **Sd/-** **K. Vinod Chandran, Judge** **Sd/-** **jma** **V.G. Arun, Judge** O.P (KAT) 503/2019 8 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** ## **EXHIBIT P1** **COPY OF O.A.1832/19 BEFORE THE KERALA ADMINISTRATIVE TRIBUNAL FILED BY THE PETITIONER.** **EXHIBIT PA (ANNEXURE COPY OF MEMO DATED 15.11.2011 ISSUED BY A1) REGISTRAR OF MAHATMA GANDHI UNIVERSITY INFORMING PETITIONER ABOUT HIS SELECTION AS ASSISTANT IN THE UNIVERSITY. EXHIBIT P1(ANNEXURER COPY OF G.O(P) NO.12/2017 P&ARD DATED A2) 29.12.2017. EXHIBIT P1(ANNEXURER COPY OF G.O.(P) NO.4/2019 p7ARD DATED A3) 11.7.2019. EXHIBIT P1(ANNEXURER COPY OF REPRESENTATION DATED 1.12.2018 A4) SUBMITTED BY PETITIONER. EXHIBIT P2 COPY OF M.A.NO.2368/19IN O.A.1832/19 BEFORE KERALA ADMINISTRATIVE TRIBUNAL. EXHIBIT P2 (ANNEXURE COPY OF NOTIFICATION INVITING A5) APPLICATION FOR SELECTION TO KERALA ADMINISTRATIVE SERVICE. EXHIBIT P3 COPY OF THE ORDER DATED 19.11.19 IN M.A.NO.2368/19 PASSED BY KERALA ADMINISTRATIVE TRIBUNAL.**