IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 2ND NOVEMBER 2009 / 11TH KARTHIKA 1931 WP(C).No. 5048 of 2008(A) ------------------------- PETITIONER(S): --------------------- K.R. SONA, FIELD ASSISTANT, SAKTHAN THAMPURAN PALACE, ARCHAEOLOGICAL MUSEUM, THRISSUR-20. BY ADV. SRI.N.D.PREMACHANDRAN SRI.D.AJITHKUMAR SMT.LALIZA.T.Y. RESPONDENT(S): ----------------------- 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, CULTURAL AFFAIRS, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR, DIRECTOR OF ARCHAEOLOGY, SREEPADAM PALACE, NEAR FORT POST OFFICE, THIRUVANANTHAPURAM-23. 3. K.R. SHYLENDRANATH, TECHNICAL ASSISTANT, KOTTARAKKARA THAMPURAN MUSEUM OF CLASSICAL ARTS, KOTTARAKKARA,KOLLAM DIST 4. T.K. KARUNADAS, TECHNICAL ASSISTANT, INFORMATION CENTRE, KERALA ARCHAEOLOGY DEPARTMENT, EAST FORT P.O., THIRUVANANTHAPURAM-23. ADV. SRI.ELVIN PETER P.J. FOR R4 SRI.V.P.MOHAMMED NIYAZ FOR R3 GOVERNMENT PLEADER SRI.ANTONY MUKKATH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.5048/08 APPENDIX PETITIONER'S EXHIBITS EXT.P1: A COPY OF THE APPOINTMENT ORDER DT 20.11.1986. EXT.P2: A COPY OF THE PROCEEDINGS DATED 10.12.96. EXT.P3: A COPY OF THE PROCEEDINGS DATED 13.5.99. EXT.P4: A COPY OF THE FINAL SENIORITY LIST OF MUSEUM ASSISTANT AS ON 1.1.89. EXT.P5: A COPY OF THE SPECIAL RULES FOR TE EKRALA Archaeological SUBORDINATE SERVICE 1974. EXT.P6: A COPY OF THE ORDER DATED 12.6.97. EXT.P7: A PHOTOCOPY OF THE SPECIAL RULES. EXT.P8: COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN OP NO.11813/2001 DATED 13.6.07. EXT.P9: A COPY OF THE ORDER DT 20.10.2003. EXT.P10: A COPY OF THE FINAL SENIORITY LIST OF LDC IN THE ARCHAEOLOGICAL DEPARTMENT PUBLISHED ON 25.11.92. EXT.P11: COPY OF APPOINTMENT ORDER DATED 12.1.05. EXT.P12: A COPY OF CIRCULAR DATED 19.5.2003. EXT.P13: COPY OF APPOINTMENT ORDER DATED 12.6.2003. EXT.P14: COPY OF SPECIAL RULES FOR KERALA ARCHAEOLOGICAL SERVICE 2000. EXT.P15: COPY OF REPRESENTATION DATED 3.2.2008. EXT.P16: COPY OF REPRESENTATION DATED 8.2.2008. EXT.P17: A COPY OF THE ORDER DT 18.10.2003. EXT.P18: A COPY OF THE ORDER DT 3.6.2003. EXT.P17: A COPY OF THE ADVICE OF APPOINTMNET BY PUBLIC SERVICE COMMISSION DT 9.12.2008. EXTS. OF R3 EXT.R3(a): A COPYOF THE ORDER DT 1.2.2008 DECLARING THE COMPLETION OF PROBATION OF THE 3RD RESPONDENT. WPC NO.5048/08 -2- EXT.R3(b): A COPY OF THE ORDER DT 31.10.95. EXTS. OF R4 EXT.R4(a): TRUE COPY OF THE COMMUNICATION DATED 29.8.95 ISSUED BY THE 2ND RESPONDENT. EXT.R4(b): TRUE COPY OF THE COMMUNICATION DATED 7.3.95 ISSUED BY THE 2ND RESPONDENT. EXT.R4(c): TRUE COPY OF THE REPRESENTATION DT 12.9.96 SUBMITTED BY THE 4TH RESPONDENT. EXT.R4(d): TRUE COPY OF THE COMMUNICATION DATED 7.1.97 BETWEEN THE 1ST AND 2ND RESPONDENTS. EXT.R4(e): TRUE COPY OF THE COMMUNICATION DT 17.10.97 BETWEEN THE 1ST AND 2ND RESPONDENTS. EXT.R4(f): TRUE COPY OF THE COMMUNICATION DATED 18.7.98 BETWEEN THE 1ST AND 2ND RESPONDENTS. EXT.R4(g): TRUE COPY OF THE COMMUNICATION DATED 20.4.98 BETWEEN THE 1ST AND 2ND RESPONDENTS. EXT.R4(h): TRUE COPY OF THE COMMUNICATION DATED 18/7/98 ISSUED BY THE 2ND RESPONDENTS. EXT.R4(i): TRUE COPY OF THE COMMUNICATION DATED 29.10.98 ISSUED BY THE 2ND RESPONDENT. EXT.R4(j): TRUE COPY OF THE JUDGMENT DATED 10.6.99 IN OP NO.17121/96 OF THIS HON'BLE COURT. EXT.R4(k): TRUE COPY OF THE ORDER DT 12.6.2003 ISSUED BY THE 2ND RESPONDENT. EXT.R4(l): TRUE COPY OF THE REPORT DATED 29.5.2001 ISSUED BY THE COMMITTEE. EXT.R4(m): TRUE COPY OF THE JUDGMENT DATED 21.1.2009 IN WPC NO.34771/08 OF THIS HON'BLE COURT. EXT.R4(n): TRUE COPY OF THE REPORT DT 1.6.09 SUBMITTED BY THE 2ND RESPONDENT TO THE 1ST RESPONDENT. //TRUE COPY// P.A. TO JUDGE Rp ANTONY DOMINIC, J. ================ W.P.(C) NO. 5048 OF 2008 (A) ===================== Dated this the 2nd day of November, 2009 J U D G M E N T The substantial prayer now urged before me is to declare that the action of the 2nd respondent in promoting the 4th respondent as Research Assistant, Field Assistant and Technical Assistant are illegal and against Ext.P7, the Special Rules. Although there is a challenge against the promotion of the 3rd respondent, no arguments were addressed as far as the 3rd respondent's promotion is concerned, and therefore, I am not examining the case pleaded against the 3rd respondent. 2. The 4th respondent commenced service in the Department of Archeology on 2/5/1989 as a Lower Division Clerk. Ext.P7, the Kerala Archaeological Subordinate Service Rules, 2000 (the Special Rules) came into force from 3/1/2000. Subsequent to the introduction of the Special Rules, by Ext.P13 order dated 12/6/2003, the 3rd respondent was promoted as a Research Assistant, though on a provisional basis under Rule 9(a) (i) of KS & SSR. He continued in that post and was subsequently promoted as Technical Assistant again under Rule 9(a)(i) w.e.f. WPC 5048/08 :2 : 25/7/06. The contention raised by the petitioner is that, going by Ext.P7, the Special Rules, the method for filling up the post of Research Assistant is only by direct recruitment and that the promotion of the 4th respondent from the post of Lower Division Clerk is against the Special Rules. 3. Though the 4th respondent accepts the position that he commenced his service as a Lower Division Clerk from 2/5/1989 and that the was promoted from that post to the post of Research Assistant by Ext.P13, the 4th respondent argues that his promotion was not as per Ext.P7 Special Rules and seeks to justify his promotion, relying on Ext.R4(a), which according to the 4th respondent was the Draft Rule introduced by the Archaeological Department under cover of letter dated 29/8/1995. According to the 4th respondent, as per Ext.R4(a), in the absence of officers eligible in the categories of Museum Assistant, Display Technician and Gallery Supervisor for promotion, the post of Research Assistant could be filled up by appointment by transfer from his category. It is stated that the vacancy to which he was appointed arose as early as on 1/10/96 and that as on the date of occurrence of vacancy, Rule in vogue was Ext.R4(a) and it was WPC 5048/08 :3 : therefore that he was promoted on the basis of the Draft Rule, although the promotion was subsequent to the introduction of the Special Rules. It is stated that being a Research Assistant, he was entitled to be promoted as Technical Assistant going by Ext.P7, the Special Rules. 4. Therefore, to decide on the validity or otherwise of the promotion of the 4th respondent as Research Assistant from the category of Lower Division Clerk, what arises for consideration is the impact of Ext.R4(a), the Draft Rules relied on by him. The circumstances in which Draft Rule could be followed by an appointing authority has been pointed out by the Apex Court in the judgment in Vimal Kumari v. State of Haryana {(1998) 4 SCC 114}, where it was held that it is open to the appointing authority to regulate the conditions of service of the employees for whom the Rules are made, even at the draft stage, provided there is clear intention on the part of the Government to enforce those Rules in the near future and that recourse to such Draft Rules is permissible only for the interregnum to meet any emergent situation. It is also held that if the intention was not to enforce or notify the Rules at all, recourse to “Draft Rules” cannot WPC 5048/08 :4 : be taken. Again in High Court of Gujarat v. Gujarat Kishan Mazdoor Panchayat {(2003(4) SCC 712}, the Apex Court held that it is trite that draft rules which are made to lie in a nascent state for a long time cannot be the basis for making appointment or recommendation and that the Rules even in their draft stage can be acted upon provided there is a clear intention on the part of the Government to enforce those rules in the near future. 5. In the context of the law thus laid down by the Apex Court, it has to be accepted that though Ext.R4(a) Draft Rules were allegedly promulgated way back in 1985, there is nothing on record to indicate that the Rules were followed in any case, and while so, Ext.P7 Special Rules came to be introduced in 2000 and at any rate since 2000, the Special Rules held the field. It is after the introduction of the Special Rules that by Ext.P13 dated 12/6/2003, the 4th respondent was appointed as Research Assistant. This was clearly impermissible for two reasons. One is that the Draft Rules were never followed and that the appointment in question was effected long after the Special Rules came into force. Further, the promotion effected also cannot be justified on the ground of any emergency. WPC 5048/08 :5 : 6. There is yet another anomaly in this case. Even going by Ext.R4(a) Draft Rules now relied on, what is provided in Ext.R4 (a) is that in the absence of qualified persons in the feeder category, appointment by transfer to the post of Research Assistant is permissible from Upper Division Clerks. Though the 4th respondent has a case that the expression Upper Division Clerks occurring in Ext.R4(a) is a mistake, I am not satisfied with that statement, as there is no material to substantiate the plea. Therefore, even on that ground the promotion of the 4th respondent by Ext.P13 cannot be sustained. 7. The 4th respondent however raised yet another argument to sustain Ext.P13 appointment and his further promotion from that category. He points out that Ext.P7 Special Rules in question came into force on 3/1/2000. It is pointed out that at the time when the Special Rules was implemented, the petitioner was only a Museum Assistant. It is pointed out that going by the Special Rules, petitioner could have been promoted only as Manager and that as per Rule 8 of the Special Rules, the petitioner should have successfully completed probation in the promoted post to be eligible for further promotion. It is stated WPC 5048/08 :6 : that only thereafter could she have been promoted as Field Assistant. Counsel submits that despite this position, by Ext.P9 order dated 20/10/2003, the petitioner was promoted from the post of Museum Assistant directly to the post of Field Assistant. It is stated that this promotion was against the Rule and therefore the petitioner being the beneficiary of the violation of the Special Rules cannot impugne the 4th respondent's promotion on the ground that the same was in violation of the very same Special Rules. 8. However, counsel for the petitioner contradicts this contention by pointing out that this Court by judgment in OP No.3692 of 1993 rendered on 23rd of September, 1998 directed the authorities to finalise the Special Rules and to review the promotions which were made. It is stated that it was in pursuance to this judgment that Ext.P7 Special Rules were implemented and that based on the judgment and inspite of the Special Rules, several promotions were regularized. It is stated that it was on that basis that the petitioner's claim for promotion as Manager was recognized with retrospective effect and she was ordered to be promoted as Field Assistant. Counsel also points out WPC 5048/08 :7 : the cases of Sri.B.Balamohan and Smt.A.Rajasree, in whose cases also, according to her similar promotions were ordered. 9. At the outset, dealing with the objection now raised by the counsel for the petitioner, I should say that irrespective of the invalidities now pointed out by the counsel for the 4th respondent, Ext.P9 order was issued as early as on 20/10/2003 and the petitioner has been subsequently promoted to the post of Curator during the pendency of this writ petition. Neither the 4th respondent nor anybody else has so far challenged the petitioner's promotion and at this distance of time, any challenge is highly belated. For that reason and also having regard to the directions issued by this Court in the judgment referred to above and the promotions that are given not only to the petitioner, but also to others, I am not inclined to hold that the promotion of the petitioner by Ext.P9 is irregular at this distance of time, especially in the absence of any challenge to Ext.P9 even in this proceedings. In view of this, I am not persuaded to think that the petitioner should be declined relief on the ground that she is the beneficiary of Ext.P9. 10. In the result, I set aside Ext.P13 as it is opposed to WPC 5048/08 :8 : Ext.P7 Special Rules noticed above. The 2nd respondent is directed to pass orders consequential to the above. Writ petition is disposed of as above. ANTONY DOMINIC, JUDGE Rp