IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 2ND AUGUST 2010 / 11TH SRAVANA 1932 WP(C).No. 9159 of 2010(T) ------------------------- PETITIONER(S): ---------------------- 1. K.P.RATNA SINGH, AGED 41, S/O.K.P.KORUKKUTTY, B-15, BSNL QUARTERS, CHEVAYUR AMSOM AND DESOM OF KOZHIKODE TALUK. 2. GIREESAN PARAPPOYIL, CHETTUVAIL (H), P.T.ROAD, VADAKARA, PIN 673 101. 3. MANOHARAN M., S/O.GOPALAN NAIR, EDAVALAKKANDY, MAYANAD P.O., KOZHIKODE. 4. K.M.BALAKRISHNAN, S/O.CHEKKINI, KANIYANKANDI CHALIL, PERAMBRA P.O., KOZHIKODE. 5. M.VASUDEVAN, S/O.M.DAMODARAN, MELEPARAZHI (H), FAROOK COLLEGE, KOZHIKODE. BY ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE SRI.E.NARAYANAN RESPONDENT(S): ------------------------ 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF LAW, SECRETARIAT, THIRUVANANTHAPURAM 2. THE DIRECTORATE OF LOCAL AND FUND AUDIT, THIRUVANANTHAPURAM 3. THE DEPUTY DIRECTOR OF LOCAL AND FUND AUDIT, DISTRICT OFFICE, CIVIL STATION, KOZHIKODE. 4. SRI.T.C.PYARI LAL, OFFICE OF THE DIRECTOR OF LOCAL FUND AUDIT, DIRECTORATE, VIKAS BHAVAN, KOZHIKODE. WPC NO.9159/10 -2- 5. SRI.P.M.RATHEESH KUMAR, OFFICE OF THE DEPUTY DIRECTOR OF LOCAL FUND AUDIT, CORPORATION AUDIT, KOZHIKODE CORPORATION. 6. SUMANGALA T., KARTHIKA, HOUSE NO.22A, KERALA NAGAR, NELLAYAM PO, TRIVANDRUM 695 013. 7. N.SATHEESAN, NANGARAYIL HOUSE, MOOKKUTTHALA P.O, MALAPPURAM DT. 8. P.K.MINU, ANUPAMA NIVAS, 7/705 B, NEITHELI NAGAR, KAKKANAD, KOCHI 30. ADV. SRI.K.JAJU BABU FOR ADDL.R SMT.M.U.VIJAYALAKSHMI FOR ADDL.R GOVT.PLEADER SRI.ARAVINDKUMAR BABU THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. ================ W.P.(C) NO. 9159 OF 2010 (T) ===================== Dated this the 2nd day of August, 2010 J U D G M E N T Petitioners are Selection Grade Auditors in the Local Fund Audit Department. In this writ petition, they are challenging Rule 6(ii) of the Kerala Local Fund Audit Service Rules, 2008, a copy of which is Ext.P1. 2. For the post of Auditor, the method of appointment laid down in the Rule is (1) by appointment by transfer from among Selection Grade Auditors or Senior Grade Auditors (in the absence of Selection Grade Auditor) in the Kerala local Fund Audit Subordinate Service and (2) by appointment by transfer from among Typists/Confidential Assistants (both direct recruit and promotee Typist/Confidential Assistant) in the Kerala Local Fund Audit Subordinate Service. Note (i) further provides that appointment by transfer from categories of Typists, Confidential Assistants and Selection Grade Auditors including Senior Grade Auditor, in the Local Fund Subordinate Service to the post of Audit Officer will be in the ratio of 1:1:15 respectively and that the ratio will be applied in a block of 17 vacancies of Audit Officers. WPC No. 9159/10 :2 : 3. Petitioners belong to the category of Senior Grade Auditors and according to the petitioners, Rule to the extent it provides for appointment by transfer from among Typists and Confidential Assistants is unconstitutional. It is contended that employees in the category of Typists and Confidential Assistants are unqualified and are inexperienced to discharge the duties of Audit Officer. 4. Special Rules are framed by the Government in exercise of its powers conferred under the Kerala Public Services Act, 1968 and the rule is in the realm of subordinate legislation. A piece of subordinate legislation can be challenged only if it is ultra vires of the parent statute or any other plenary laws or is it in violation of the fundamental rights of the affected parties. 5. Petitioners have no case that the rule is ultra vires the parent statute or any other plenary law. In so far as the allegation attracting violation of fundamental rights is concerned, the only case is that the unequals have been treated equally. 6. In my view, that argument will not stand. First of all in a block of 17 vacancies, only two vacancies are given to Typists and Confidential Assistants. Therefore, the Rule does not equate WPC No. 9159/10 :3 : all the categories, but has earmarked only two vacancies out of a block of 17 vacancies. A reading of the Rule in totality shows that the appointing authority by making provision for by transfer appointment was only providing a limited avenue of promotion to employees in the lower category. This policy as reflected in the Rule does not reflect any arbitrariness to attract any of the grounds of challenge in a proceedings under Article 226 of the Constitution of India. Writ petition is dismissed. ANTONY DOMINIC, JUDGE Rp