W.P.C. No. 19902/2012 (K)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **THURSDAY, THE 22ND DAY OF MAY 2014/1ST JYAISHTA, 1936** ## **WP(C).No. 19902 of 2012 (K)** **----------------------------** **PETITIONERS:** **--------------------------** *** 1. AHAMMED SHAFI.H., DARUSAFA, P.O.KOMMERI, KOZHIKODE-7.** *** (1ST PETITIONER IS ALLOWED TO WITHDRAW FROM PROSECUTING THE WRIT PETITION AS PER ORDER DATED 30/11/2012 IN IA NO.16036/2012).** ## **2. PRIYADARSINI V.,** **VISHALI, EDAMALI, THATTAYIL P.O., ADOOR TALUK, PATHANAMTHITTA-691 525.** ## **3. SANAL KUMAR K.R.,** **KALATHIL HOUSE, MUHAMMA P.O., ALAPPUZHA-688 525.** **4. THULASEEDHARA KURUP C.R., ADVAITHAM, KAITHA SOUTH, CHETTIKULANGARA P.O., MAVELIKKARA-690 106.** ## **5. SABU K.PAUL,** ## **KALIYAMPURATHU HOUSE, PIRAVOM POST, ERNAKULAM-686 664.** ## **6. SURESH K.,** - **"KASTHURI", MATHODAM, KANNADIPARAMBA, KANNUR-670 604.** ## **7. RESMI DIVAKARAN, KANNOLY HOUSE, P.O.INCHAMUDY, THRISSUR-680 564.** ## **8. JIBINI V.KURIAN,** - **ST.GEORGE HOUSE, OLAKETTYAMBALAM, P.O.MAVELIKKARA, ALAPPUZHA-690 510.** ## **9. REJIMON C.N.,** - **"JYOTHIS", KAPPIL EAST, KRISHNAPURAM P.O., ALAPPUZHA-690533.** **BY ADVS.SRI.ELVIN PETER P.J. SRI.T.G.SUNIL (PRANAVAM) SRI.K.R.GANESH** **..2/-** **Kss** **..2....** ## **WPC.NO.19902/2012 (K)** ## **RESPONDENTS:** **----------------------------** **1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, FOOD AND CIVIL SUPPLIES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **2. THE COMMISSIONER OF CIVIL SUPPLIES DEPARTMENT, COMMISSIONERATE OF CIVIL SUPPLIES DEPARTMENT, THIRUVANANTHAPURAM - 695 001.** **3. KERALA STATE CIVIL SUPPLIES CORPORATION LTD., MAVELI BHAVAN, MAVELI ROAD, GANDHI NAGAR, COCHIN-682 010, REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR.** **4. THE CHAIRMAN AND MANAGING DIRECTOR, KERALA STATE CIVIL SUPPLIES CORPORATION LTD., MAVELI BHAVAN, MAVELI ROAD, GANDHI NAGAR, COCHIN-682 010.** ## **5. THE DIRECTOR,** - **COMMISSIONERATE OF CIVIL SUPPLIES DEPARTMENT, THIRUVANANTHAPURAM - 695 001.** **6. KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, PATTOM, THIRUVANANTHAPURAM-695 004.** - **R1,R2 & R5 BY GOVERNMENT PLEADER SMT. K.A.SANJEETHA R3 & R4 BY ADV. SRI.SMT.MOLLY JACOB,SC,SUPPLYCO SRI.N.D.PREMACHANDRAN,SC,SUPPLYCO** - **R6 BY ADV. SRI.P.C.SASIDHARAN, SC, KPSC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/03/2014, THE COURT ON 22/05/2014 DELIVERED THE FOLLOWING:** **Kss** ## **WPC.NO.19902/2012 (K)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1: TRUE COPY OF RANK LIST OF SUCCESSFUL CANDIDATES FOR APPOINTMENT TO THE POST OF JUNIOR MANAGER W.E.F 2-3-12, PUBLISHED BY THE PUBLIC SERVIE COMMISSION AS PER NOTIFICATION NO.87/12/SS III.** **EXHIBIT P2: TRUE COPY OF KERALA STATE CIVIL SUPPLIES CORPORATION RECRUITMENT/PROMOTION RULES, 1997.** **EXHIBIT P3: TRUE COPY OF APPLICATION SUBMITTED BY 8TH PETITIONER BEFORE THE STATE PUBLIC INFORMATION OFFICER OF THE PUBLIC SERVICE COMMISSION.** **EXHIBIT P4: TRUE COPY OF REPLY DATED 7-6-2012 ISSUED BY THE ASST.PUBLIC INFORMATION OFFICER OF KERALA STATE CIVIL SUPPLIES CORPORATION LIMITED.** **EXHIBIT P5: TRUE COPY OF APPLICATION SUBMITTED UNDER THE RIGHT TO INFORMATION ACT BY SMT.MANJU M.KUMAR BEFORE THE STATE PUBLIC INFORMATION OFFICER OF KERALA STATE CIVIL SUPPLIES CORPORATION LTD.** **EXHIBIT P6: TRUE COPY OF REPLY DT.3-4-2012 VIDE NO.P1O.7645/12(2) ISSUED BY THE PUBLIC INFORMATION OFFICER, KERALA STATE CIVIL SUPPLIES CORPORATION LTD.** **EXHIBIT P7: TRUE COPY OF APPEAL SUBMITTED BY SMT.MANJU M.KUMAR BEFORE THE VIGILANCE OFFICER AND APPELLATE AUTHORITY, KERALA STATE CIVIL SUPPLIES CORPORATION DT.16-4-2012.** **EXHIBIT P8: TRUE COPY OF ORDER NO.VIG. 215/2012 DATED 22-5-2012 ISSUED BY THE VIGILANCE OFFICER AND APPELLATE AUTHORITY.** ## **RESPONDENTS' EXHIBITS;** **EXHIBIT R1: COPY OF THE G.O.(RT) NO.95/97/F&CSD DATED 3/04/1997.** **EXHIBIT R2: COPY OF THE APPENDED NORMS FOR DEPUTATION.** **EXHIBIT R3: COPY OF THE G.O.(MS) NO.57/2000/F&CSD DATED 30/12/2000.** **EXHIBIT R4: COPY OF THE REVISED CONSOLIDATED NORMS FOR DEPUTATION.** **/TRUE COPY/** **P.S.TO JUDGE** **Kss** ## A.M. Shaffique, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-=-=-=-= W.P(C) No. 19902 of 2012 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-=-=-= Dated this, the 22[nd] day of May, 2014. ## J U D G M E N T This writ petition is filed seeking a declaration that Rule 2 and the Annexure prescribed in Ext. P2 Rules as against Sl. No. 1A to the post of Junior Manager is unreasonable, unworkable, discriminatory, unconstitutional and violative of Article 14 of the Constitution of India, to restrain the respondents from enforcing the said provision against Junior Managers' post, prescribing deputation of Assistant Taluk Supply Officers and for a direction to fill up the post of Junior Manager from Ext. P1 rank list by direct recruitment, in the absence of qualified Assistant Taluk Supply Officers in Civil Supplies Department by deputation. 2. The facts involved in the case would disclose that the method of appointment to the post of Junior Manager (General) in Kerala State Civil Supplies Corporation (for short 'the Corporation') has to be in accordance with Kerala State Civil Supplies Corporation Recruitment/Promotion Rules, 1997, which is produced as Ext. P2. The concern in this writ petition is with reference to filling up the post of Junior Manager (General), which is to be made in accordance with Rule 2 of Ext. P2 Rules. Sl. No. 1A in the Annexure to Rule 2 reads as under: -: 2 :- W.P(C) No. 19902 of 2012 |Sl.No.|Name of post and scale<br>ofpay|Method<br>of<br>recruitment|Qualificatio<br>n| |---|---|---|---| |1.(a)|Junior Managers<br>Rs. 2200-3500|(a)<br>Direct<br>recruitment<br>(b) Deputation of<br>ATSO's from Civil<br>Supplies<br>Department. In the<br>absence of qualified<br>candidates<br>for<br>appointment<br>by<br>method (a) those<br>vacancies will also<br>be filled up by<br>method (b) 10% of<br>the posts will be<br>reserved for direct<br>recruitment.|1.<br>Graduation<br>from<br>a<br>recognized<br>University.<br>(2) M.B.A.| 3. The Kerala Public Service Commission (for short 'the KPSC') invited applications to the post of Junior Manger (General) in the Corporation. The qualification prescribed in the notification was graduation from a recognized University and MBA. Ext. P1 is the rank list prepared. Petitioners are included in the said rank list and one of the petitioner is included in the supplementary list of scheduled castes as well. 4. The contention of the petitioners is that the W.P(C) No. 19902 of 2012 -: 3 :- aforesaid Rule is arbitrary, unreasonable and unworkable as it makes a provision prescribing reservation to only 10% of the posts for direct recruitment. Another complaint raised is that there is no specific provision which enables filling up of vacancies, if there are no qualified hands for appointment by deputation from the post of Assistant Taluk Supply Officers in the Civil Supplies Department. It is inter alia contended that deputation is not the recognised mode of appointment. The same being only considered as a plenary power vested in the Government, which could be invoked only in public interest in terms of Rule 9B of KS & SSR. In so far as in Ext. P2 Rules deputation has been made the major mode of appointment and only 10% of the posts are reserved for direct recruitment, it amounts to discrimination and the post remains unfilled if there are no candidates, who could be deputed to the said post. 5. Another contention urged is that the qualification prescribed for filling up the post of Assistant Taluk Supply Officers in Civil Supplies Department is only SSLC. As far as direct recruitment to the post of Junior Manager is concerned, graduation and MBA are the qualification prescribed. According to W.P(C) No. 19902 of 2012 -: 4 :- the petitioners, their enquiry reveals that none of the Assistant Taluk Supply Officers who are appointed to the post of Junior Manager, possess the qualification prescribed for the said post and that apart, as far as Assistant Taluk Supply Officers are concerned, minimum qualification is only SSLC. It is therefore contended that it was wrong on the part of the rule making authority to have made deputation as a method of appointment. Hence, according to them, there is an omission in the rule in so far as it has not made provision of filling up vacancies by direct recruitment in the absence of qualified Assistant Taluk Supply Officers in the Civil Supplies Department for appointment to the post of Junior Manager. It is also contended that even for appointment to the post of Junior Manager, they should have the qualification prescribed under Rule, ie. graduation and MBA. 6. Counter affidavit is filed by the 6[th] respondent KPSC inter alia stating that they invited application for selection to the post of Junior Manager (General) in the Corporation and the number of vacancies notified were 9. It is stated that as per the recruitment rules, the qualification prescribed is in respect of direct recruitment. The Commission has initiated the W.P(C) No. 19902 of 2012 -: 5 :- selection process in respect of the 9 vacancies and the last advice to the post was made on 10.7.2012. Total number of candidates advised so far is 13. It is also stated that the rank list is still in force and candidates will be advised against all the vacancies reported during the period of the rank list. 7. The 1[st] petitioner has filed I.A. No. 16036/2012 seeking to withdraw from prosecuting the writ petition as he was subsequently advised and the same was allowed by this Court as per order dated 30.11.2012. 8. Counter affidavit is filed by respondents 3 and 4. It is inter alia stated that only 10% of the total sanctioned post of Junior Manager is reserved for direct recruitment and the balance posts are to be filled by deputation from Assistant Taluk Supply Officers from Civil Supplies Department. It is in the said background that 9 vacancies of Junior Managers were reported for which selection was conducted. It is further indicated that deputation of the officers from Civil Supplies Department to Civil Supplies Corporation is a policy matter of the Government. The Corporation is Government owned and it has established 1403 outlets at different parts of the State. It has also made W.P(C) No. 19902 of 2012 -: 6 :- provision for deputation of officers from Civil Supplies Department to the Corporation as directed by the Government. State Government has issued orders for compulsory deputation of employees of the Civil Supplies Department as per Government Orders dated 3.4.1997 produces as Exts. R1 and R2. Further orders were issued by the Government revising the norms after consultation with service organisations, Director of Civil Supplies, Managing Director of the Corporation as per Government Order dated 30.12.2000, produced as Ext. R3. A further revision of the norms were made, which is produced as Ext. R4. As per the Government Orders, all officers of the Civil Supplies Department coming under different categories were to work in the Corporation on deputation. It is inter alia stated that as per the prevailing norms of deputation, except for the post which requires specialised knowledge and qualification, deputation is compulsory. It is also stated that the employees of Civil Supplies Department has to work for 13 years on deputation on an average and about 1300 employees of the Civil Supplies Department are presently working in the Corporation on deputation. It is also stated that the validity of the aforesaid Government Order and norms had been upheld by this W.P(C) No. 19902 of 2012 -: 7 :- Court in **Balachandran v. State of Kerala** , [1999(1) KLT 377]. The Corporation inter alia submits that it is the prerogative of the appointing authority to prescribe the method of appointment and qualification for the post and since only 10% of the post of Junior Manager is reserved for direct recruitment, there is no discrimination or arbitrariness in the same. Further, it is contended that MBA qualification is fixed only for direct recruitment and for filling up vacancy of Junior Manager, MBA qualification is not required for Assistant Taluk Supply Officers who are sent on deputation as Junior Manager. Further, there are sufficient qualified Assistant Taluk Supply Officers qualified to be appointed as Junior Managers available in the Civil Supplies Department on deputation and therefore, according to them, there is no lacuna in Rule 2 as alleged by the petitioners. It is further contended that the Corporation has not experienced any situation of unworkability, as contended by the petitioners. 9. Counter affidavit is filed on behalf of the 1[st] respondent inter alia stating that the functions of Corporation overlap with those of Civil Supplies Department and Government has taken a policy decision that except for the posts that require W.P(C) No. 19902 of 2012 -: 8 :- specialised knowledge and qualification, other posts in the Corporation shall be manned by the officers on deputation from the Civil Supplies Department. They rely upon Rule 140(a) of Part I KSR, which enables the Government to depute personnel from Civil Supplies Department to the Corporation. The Corporation being owned by the Government, deputation from the Department can be made under the abovesaid Rule as well. It is also stated that deputation is compulsory in all cadres and the willingness of the personnels are not sought before deputing them to various posts. Further, it is stated that 87 posts of Junior Managers are earmarked for deputation staff. Those who come from L.D. Clerk cadre in Civil Supplies Department are promoted as Assistant Taluk Supply Officers cadre only after a minimum service of 22 to 24 years in other cadres. During the aforesaid period of service, they might have worked in the Corporation in Assistant Cadre for a minimum of 15 to 18 years. The experience they attain during the above said years are far more than the qualification of fresh hands. The scale of pay of Junior Managers on deputation is only Rs. 16180-29180, whereas that of Junior Managers directly recruited is Rs. 20740-36140. The directly W.P(C) No. 19902 of 2012 -: 9 :- recruited Junior Managers (General) have higher qualification and higher scale of pay than the Junior Mangers on deputation. Therefore, according to the Government, Assistant Taluk Supply Officers, who are deputed from Civil Service Department and working as Junior Manager cadre in the Corporation is based on Government policy, which cannot be challenged. 10. Having regard to this factual situation, the short question to be considered is whether the petitioners are entitled to challenge Ext. P2 Rules with reference to Sl. No. 1A in Annexure to Rule 2. 11. As far as the number of posts for which direct recruitment is concerned, there cannot be any dispute that the maximum posts reserved for direct recruitment is 10% of the total posts available. As far as the qualification is concerned, for the post of Junior Manager by direct recruitment, there is no dispute that the qualification prescribed is graduation from a recognised University and MBA. Another method of appointment is by deputation of Assistant Taluk Supply Officers from Civil Supplies Department. If there are no candidates for appointment by direct recruitment, then also those vacancies will be filled up by way of deputation. The word 'deputation' in the Rule W.P(C) No. 19902 of 2012 -: 10 :- by itself indicates that there is no specific qualification prescribed for the deputed staff. The only condition is that the deputation shall be from the post of Assistant Taluk Supply Officers. As far as Assistant Taluk Supply Officers are concerned, no specific qualification is prescribed in the Rules nor is it stated that for deputing them to the post of Junior Manager, they should also acquire the qualification prescribed for candidates in the direct recruitment stream. In the said circumstances, the other question would be whether there is any arbitrariness or illegality in limiting the direct recruitment to 10% of the total posts. Counter affidavit filed by the respondents would inter alia indicate that the Government had issued orders to place the Assistant Taluk Supply Officers working in Civil Supplies Department by way of Junior Managers in the Civil Supplies Corporation. It is apparently a policy matter of the Government. It is also stated that such persons would work in the Civil Supplies Department/Corporation for a considerable long period and they are deputed to the post of Junior Manager on account of the policy decision of the Government to fill up such vacancies in various categories for facilitating the activity which is being W.P(C) No. 19902 of 2012 -: 11 :- carried on by the Corporation. A candidate who applies to the post by virtue of Ext. P1 notification cannot claim that the Government should have a different policy to appoint personnels in all the vacancies by way of direct recruitment. Such policy decision of the Government cannot be considered as arbitrary, unreasonable or discriminatory. In so far as the Government had restricted direct recruitment only to 10% of posts of Junior Managers, the petitioners cannot complain that the entire posts are to be filled up by way of direct recruitment. If such a decision is taken, it will be against the policy of the Government which cannot be accepted by this Court. 12. Learned counsel for the petitioners referred to the judgment of the Supreme Court in **Gujarat Urja Vikas Nigam Ltd., v. ESSAR Power Ltd** ., (2008) 4 SCC 755 in order to indicate that there is omission in the rules. I do not think so. As already indicated, the rule making authority was very clear that there would not be any lack of Assistant Taluk Supply Officers in the Department and that is factually found to be correct on the basis of the averments made in the counter affidavit of the Government. 12. Another contention urged is with reference W.P(C) No. 19902 of 2012 -: 12 :- to availability of Assistant Taluk Supply Officers, who have no requisite qualification. The contention of the petitioners is that present rule is unworkable though it is stated that in the absence of direct recruits, deputation is the method of appointment, there is no situation which envisages filling up of vacancies when there are no available qualified personnel from the post of Assistant Taluk Supply Officers to be sent on deputation. This contention is factually negatived in the counter affidavit of the Government, which indicates that sufficient Assistant Taluk Supply Officers are available in the Civil Supplies Department to be sent on deputation and there is no vacancy available in that cadre. 13. That apart, when rules have been framed by the Government with reference to the method of appointment and when there is categorisation of direct recruits as well as by way of deputation, this Court cannot sit in judgment with reference to the said rule making authority of the Government. The Government has farmed rules taking into account special circumstances available in the Civil Supplies Department and the Corporation and the method of working between the two departments. That apart, W.P(C) No. 19902 of 2012 -: 13 :- under Rule 140 of Part I KSR, it is always open for the Government to depute their employees to other Government Departments. When such a method is adopted by framing rules, such rules cannot be termed as arbitrary, unreasonable or discriminatory in any manner. The rule can be challenged only if the Government does not have legislative competence or it is arbitrary in any manner. In so far as there is no lack of legislative competence and there is no arbitrariness in the method of appointment as per Rules, I do not think that the petitioners will be justified in seeking to quash the aforesaid Rule to the extent indicated in the above writ petition. Under these circumstances, I do not think that the petitioners are entitled to seek the reliefs in writ petition and accordingly the same is dismissed. Sd/- A.M. Shaffique, Judge. ## Tds/