IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR MONDAY, THE 15TH JUNE 2009 / 25TH JYAISHTA 1931 WA.No. 752 of 2009() -------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.36212/2008 Dated 27/02/2009 .................... APPELLANT/PETITIONER ---------------------------------- K.A.CHANDRASEKHARAN,DIRECTOR, HANDLOOM & TEXTILES,TRANSFERRED AND POSTED ON DEPUTATION AS MANAGING DIRECTOR, KERALA ARTISANS DEVELOPMENT CORPORATION,THIRUVANANTHAPURAM, RESIDING AT HOUSE NO.P 90, PULLEKONAM LANE, SASTHAMANGALAM,THIRUVANANTHAPURAM. BY ADV. SRI.T.P.KELU NAMBIAR, SENIOR ADVOCATE SRI.M.GOPIKRISHNAN NAMBIAR SRI.P.G.RAJAGOPALAN RESPONDENTS/ RESPONDENTS: -------------------------------------- 1. STATE OF KERALA,REP.BY THE SECRETARY TO GOVERNMENT, INDUSTRIES (C) DEPARTMENT, SECRETARIAT,THIRUVANANTHAPURAM. 2. P.R.LUIS, DIRECTOR OF HANDLOOM & TEXTILES, VIKAS BHAVAN,THIRUVANANTHAPURAM. SR. GOVERNMENT PLEADER, SRI.BENNY GERVASIS FOR R1 SRI.N.RAGHURAJ FOR R2. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 15/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: “CR” K. BALAKRISHNAN NAIR & C.T.RAVIKUMAR, JJ. ------------------------------ W.A. No.752 OF 2009 ------------------------------- Dated this the 15th day of June, 2009 J U D G M E N T ~~~~~~~~~~~ Balakrishnan Nair, J. The writ petitioner is the appellant. The respondents herein were the respondents in the writ petition. The appellant filed the writ petition challenging Ext.P7 order dated 1.12.2008 passed by the Government deputing him as Managing Director of the Kerala Artisans Development Corporation from his parent post of Director of Handloom and Textiles. 2. The brief facts of the case are the following: The appellant and 2nd respondent were Additional Directors of Industries and Commerce, which is a post borne on the Kerala Industries Service. As per the 'Special Rules for the post of Director of Handloom, 1989', the said post was being filled up by transfer from Kerala Industries Service, that is, from the post of Additional Director. When a vacancy arose in the post of W.A.No.752/2009 2 Director, superseding the senior most Additional Director, Shri.N.Vimalan, the appellant was appointed to that vacancy, which arose on 31.5.2005. Later, by Ext.P2 order of the Government dated 4.2.2006, the appointment of the appellant in the post of Director of Handloom and Textiles was regularised. Still later, the appellant was appointed as Managing Director of the Kerala State Handloom Weavers' Co-operative Society Ltd. (HANTEX) and in the resultant vacancy Sri. N. Vimalan, Additional Director of Industries and Commerce was appointed as Director of Handloom and Textiles. Sri. N.Vimalan retired on 30.6.2006 and in that vacancy the 2nd respondent, who was an Additional Director, was appointed as Director of Handloom and Textiles. Later, by Ext.P4 order dated 22.8.2007, the appellant was again appointed as Director of Handloom and Textiles. While so, by Ext.P6 order dated 28.11.2008, he was put in charge of Kerala Artisans Development Corporation Ltd. with effect from 1.12.2008 until further orders. Soon, thereafter, on 1.12.2008 the impugned order Ext.P7 was passed, posting the 2nd respondent as Director of Handloom and Textiles and appointing the appellant as the W.A.No.752/2009 3 Managing Director of Kerala Artisans Development Corporation on deputation. Challenging Ext.P7, on the ground that the said order does not disclose the reasons for deputing him, as provided under Rule 9B of Part II of the Kerala State and Subordinate Services Rules (for short 'KS& SSR'), the Writ Petition was filed. The respondents supported the impugned order. The learned Single Judge dismissed the Writ Petition. Feeling aggrieved by the judgment of the learned Single Judge, this Writ Appeal is filed. 3. The learned senior counsel, Sri. T.P.Kelu Nambiar, appearing for the appellant submitted that by Ext.P2, the appellant has been regularised in the post of Director of Handloom and Textiles. Of course, he could be sent on deputation in public interest. But, Rule 9B mandates that the Government should give its reasons for sending the appellant on deputation. The Government does not have any consistent case in its statement/affidavit regarding the reason for sending the appellant on deputation. The learned senior counsel also relied on the decision of the Division Bench of this court in Kerala W.A.No.752/2009 4 State Housing Board v. Murali [1989 (2) KLT 28] and submitted that an order of deputation, which does not give reasons is invalid. 4. Sri. Benny Gervasis, the learned senior Government Pleader submitted that Ext.R1(a) Rules changing the method of appointment to the post of Director of Handloom and Textiles have been issued by the Government on 17.9.2008 with retrospective effect from 1.3.1997. The present method of appointment is “appointment by Government”, whereas, under the repealed rules it was appointment by transfer from the post of Additional Director. So, in this case, the Government are competent to appoint any person to the post of Director of Handloom and Textiles. The learned Government Pleader further submitted that though the impugned order does not give any reasons, the appellant has been deputed as he is a very efficient officer, who will be able to manage the Kerala Artisans Development Corporation efficiently, and take it out of the present financial difficulties. So, the order has been passed in good faith and in public interest. The learned counsel, Mr. W.A.No.752/2009 5 Reguraj, who appeared for the 2nd respondent supported the above submissions of the learned Government Pleader. 5. Rule 9B of Part II of the Kerala State and Subordinate Services Rules reads as follows: “9B:- Notwithstanding anything contained in these rules or in the Special Rules, the Government may, in public interest and for reasons to be recorded in writing, depute or transfer officers from one service to another or from one Department to another within the same service or send to or take in officers from other Governments or Statutory Bodies subject to such conditions as the Government may in each case impose: Provided that in the case of transfers in the interest of security of State, the reasons need not be recorded if Government are satisfied that it is not expedient to disclose the reasons for such transfer. Provided further that the Commission shall be consulted in respect of such deputations and transfers whenever such consultation has not been specifically excluded by the provisions of the Kerala Public Service Commission (Consultation) Regulations, 1957.” (emphasis supplied) W.A.No.752/2009 6 Interpreting the above Rule, the Division Bench of this Court in Kerala State Housing Board v. Murali (supra) has stated as follows: “12. Rule 9B of the Kerala State and Subordinate Services Rules deals with deputation of officers and engrafts an accepted principle in service law that the exigencies of service may, in public interest, require deputation of officers from one service to another or from one department to another or even from Government service to statutory bodies and vice versa. Deputation in service parlance, is a recognised mode of transfer and rule 9B prevents the arbitrary exercise of this power of deputation by insisting that it can be done only in public interest and for reasons to be recorded in writing. Reasons need not be recorded if the deputation is made in the interest of the security of the State. Rule 9B is thus not a conferment of a new power of deputation unknown in administrative law, but only declaratory of an existing recognised power in service jurisdiction. Rule 9B cannot therefore be understood as excluding a power of deputation of officers to the Housing Board. The Act in S.19(2) and the rules, especially Rule 4(2) of the establishment rules made by the Government, and the establishment regulations made by the Board, particularly the annexure to those regulations, W.A.No.752/2009 7 contemplate transfers of Government officers to the Housing board and it cannot be assumed that these provisions were inserted without any regard to the source of power to depute. It is difficult to ignore these provisions and exclude rule 9B together to deprive the Board of its power of appointment on deputation.” (emphasis supplied) 6. Going by the above decision of this Court, the Government are bound to give reasons, while deputing the appellant so as to avoid arbitrary exercise of the power under Rule 9B of the KS & SSR. We are in respectful agreement with the view expressed by the Division Bench in the above case. We notice that Ext.P7 does not give any reasons, whatsoever, for deputing the appellant. The relevant portion of the said order reads as follows: “Shri.P.R.Luis formerly Director of Handloom and Textiles was appointed as Managing Director, Hantex on deputation basis as per the Government Order read as 1 st paper above. Government are pleased to revert him from deputation and posted as Director, Handloom and Textiles vice Shri. K.A.Chandrasekharan transferred. W.A.No.752/2009 8 On transfer, Shri. K.A.Chandrasekharan on full additional charge ordered as per the order II nd cited is appointed as Managing Director, Kerala Artisans' Development Corporation on deputation basis. Sri. K.Sudhir, Joint Director, O/o The Director of Industries and Commerce, presently holding the post of the Secretary, Kerala State Handicrafts Apex Co-operative Society Ltd (SURABHI) is appointed as Managing Director, Hantex vice Shri. P.R.Luis reverted. He will also continue as Secretary, Kerala State Handicrafts Apex Co-operative Society Ltd (SURABHI) on full additional charge.” 7. Going by the aforementioned order, the same is unsupportable in law for not giving reasons for deputing the appellant. In appropriate cases, even if, the impugned order does not give the reasons, it may be supported, if the file relating to the same contains reasons. It is true, the Government have attempted to support their decision to depute the appellant by stating that he is an efficient officer etc., but, the file does not disclose any such reasons. In the absence of anything on the W.A.No.752/2009 9 above point on record, it is quite unsafe to act on the submissions in the statements/affidavits which the Government have filed. Ext.P7 is a statutory order. When it is challenged, normally, the author of the order cannot be permitted to supply reasons, which are not found therein, to support the order, in view of the decisions of the Apex Court in Commissioner of Police v. Gordhandas [AIR 1952 SC 16], which was followed in Mohinder Singh Gill v. Chief Election Commissioner [AIR 1978 SC 851]. 8. The contention of the learned senior Government Pleader that appointment to the post of Director can be made by the Government, in view of the new Rule without reference to the seniority in the feeder category etc. cannot be accepted. It is true, as per the new Special Rules, introduced on 17.9.2008 with retrospective effect from 1.3.1997, the method of appointment to the post of Director is “appointment by Government”. In this case, even before the introduction of the new Rule, by Ext.P2, the appellant's appointment has been regularised. Even assuming that in view of the retrospectivity of the new Rule, the W.A.No.752/2009 10 said appointment became invalid, the Government can make fresh appointment, only after inviting applications and preparing a select list in view of Rule 3(a) of Part II of the KS & SSR, which reads as follows. “3. Approved Candidates:- (a) All first appointments to the service shall be made by the appointing authority on the advice of the Commission in respect of posts falling within the purview of the Commission and in all other cases by the appointing authority from a list of approved candidates prepared in the prescribed manner.” (emphasis supplied) So, in the absence of any selection as provided under Rule 3(a), the appointments of Sri.N.Vimalan and the 2nd respondent in the post of Director of Handloom and Textiles can only be treated as provisional appointments. If the retrospectivity of the new Special Rules cannot affect the regularisation of the appellant made as per Ext.P2, they were appointed in the vacancies created by the deputation of the appellant from the post of Director. In that event, the said appointments cannot affect the rights of the appellant. W.A.No.752/2009 11 9. In view of the above position, Ext.P7 is quashed. The Government are given liberty to pass fresh orders in the matter, in accordance with law, within one month from today. Till such time, the present arrangement will continue. If, no such orders are passed within one month from today, the appellant shall be re-posted as Director of Handloom and Textiles. The Writ Appeal is disposed of as above. (K.BALAKRISHNAN NAIR, JUDGE) (C.T.RAVIKUMAR, JUDGE) ps