IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI FRIDAY, THE 23RD MAY 2008 / 2ND JYAISHTA 1930 WP(C).No. 29149 of 2007(T) --------------------------------------- PETITIONERS: --------------------- 1. LALITHAMMA.K.PANOOSE, AGED 52 YEARS, W/O. K.C.ZACHARIA, PROJECT OFFICER (COIR), PONNANI, MALAPPURAM DISTRICT. 2. S.S.CHAN BEEVI, PROJECT OFFICER (COIR),KANNUR. BY ADV. SRI.DEEPU THANKAN. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REP. BY PRINCIPAL SECRETARY TO GOVERNMENT, INDUSTRIES (A) DEPARTMENT,THIRUVANANTHAPURAM. 2. DIRECTOR OF INDUSTRIES AND COMMERCE, THIRUVANANTHAPURAM. 3. M.SALIM, ASSISTANT DISTRICT INDUSTRIES OFFICER, TALUK INDUSTRIES OFFICE, MINI CIVIL STATION, PONNANI, MALAPPURAM DISTRICT. 4. K.N.KRISHNAKUMAR, ASSISTANT DISTRICT INDUSTRIES OFFICER, TALUK INDUSTRIES OFFICE,OTTAPPALAM. 5. A.N.SREEDHARAN, ASSISTANT DISTRICT INDUSTRIES OFFICER, TALUK INDUSTRIES OFFICE,IRINJALAKUDA. W.P.(C). NO.29149/2007: 6. K.S.PRADEEPKUMAR, ASSISTANT DISTRICT INDUSTRIES OFFICER, TALUK INDUSTRIES OFFICE,TRIPUNITHURA. 7. R.RAMESH CHANDRAN, TRAINING OFFICER ILO, U.N.O. PROJECT, MINI CIVIL STATION, KARUNAGAPPALLY, KOLLAM DISTRICT. 8. T.ABDUL VAHAB, ASSISTANT DISTRICT INDUSTRIES OFFICER, TALUK INDUSTRIES OFFICE,TIRUR 9. N.MOHANAN, ASSISTANT DISTRICT INDUSTRIES OFFICER, DISTRICT INDUSTRIES OFFICE,THIRUVANANTHAPURAM. 10. S.SURESHKUMAR, ASSISTANT DISTRICT INDUSTRIES OFFICER, DISTRICT INDUSTRIES OFFICE,KOTTAYAM. 11. P.S.SURESHKUMAR, ASSISTANT DISTRICT INDUSTRIES OFFICER, TALUK INDUSTRIES OFFICE, MEENACHIL, PALA. 12. SIMON ZACHARIA, ASSISTANT DISTRICT INDUSTRIES OFFICER, TALUK INDUSTRIES OFFICE, MANNARKKAD. 13. D.RAJENDRAN, ASSISTANT DISTRICT INDUSTRIES OFFICER, DISTRICT INDUSTRIES CENTRE,PATHANAMTHITTA. 14. HELEN JEROME, ASSISTANT DISTRICT INDUSTRIES OFFICER, DISTRICT INDUSTRIES CENTRE,ALAPPUZHA. 15. E.SALAHUDEEN, ASSISTANT DISTRICT INDUSTRIES OFFICER, DISTRICT INDUSTRIES CENTRE,KOLLAM. BY SR. GOVT. PLEADER SRI. NANDAKUMAR - R1 & R2, ADV. SRI.KALEESWARAM RAJ - R9 & R15, ADV. SRI. P.J. MATHEW - R5, R6 & R12, ADV. SRI. T.A. SHAJI - R3, R7 & R10, ADV. SRI. P. NARAYANAN - R4 & R14, ADV. SRI. P.C. SASIDHARAN - R8, R11 & R13. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/02/2008, ALONG WITH W.P.(C). NO. 31047/2007, THE COURT ON 23/05/2008 DELIVERED THE FOLLOWING: W.P.(C). NO.29149/2007-T: APPENDIX PETITIONER'S EXHIBITS : EXT.P.1: COPY OF THE FINAL SENIORITY LIST OF ADIO'S DT. 12/11/03. EXT.P.2: COPY OF THE JUDGMENT DTD. 04/01/06. EXT.P.3: COPY OF THE JUDGMENT DT. 05/03/07 IN C.C.(C) NO. 51/07. EXT.P.4: COPY OF THE JUDGMENT DT. 05/03/07 IN C.C. (C). NO. 51/07. EXT.P.5: COPY OF THE ORDER OF R.1. DT. 06/07/07. EXT.P.6: COPY OF THE CIRCULAR NO. E.E-1.15535.07 DIRECTORATE OF INDUSTRIES AND COMMERCE, THIRUVANANTHAPURAM DTD. 12/09/07. RESPONDENT'S EXHIBITS: EXT.R5.A: COPY OF THE MINUTES OF THE MEETING HELD ON 27/01/2007. EXT.R9.A: COPY OF THE G.O. (MS).NO.25/2005/ID DTD. 02/03/2005. EXT.R9.B: COPY OF THE G.O. (MS). NO. 127/IND. DTD. 23/02/1961. EXT.R9.C: COPY OF THE JUDGMENT DTD. 04/01/2006 IN W.P.(C). NO. 14917/2005. //TRUE COPY// prv. V. GIRI, J. --------------------------------------------- WP(C).NOs.29149 & 31047 of 2007 --------------------------------------------- Dated this the 23rd day of May, 2008. JUDGMENT Common issues arise for consideration in these two writ petitions and therefore they have been heard together and are being disposed of by this common judgment. WP(C). No.31047/2007 is taken as the leading case. The petitioners entered service as Junior Co-operative Inspectors in the Industries and Commerce Department. They were promoted on regular basis as Senior Co-operative Inspectors. They were then provisionally promoted as Industries Extension Officers. All the above mentioned posts are included in the Kerala Industries Subordinate Service and are governed by the Subordinate Service Rules (hereinafter referred to as the Subordinate Rules). 2. The post of Assistant District Industries Officer is one which is comprehended by the Special Rules for the Kerala Industries Service (hereinafter referred to as the Rules). The said post is included in category No.2, Class No.V WPC.29149 & 31047 of 2007 2 and Branch No.1 of the State service. The method of appointment to the said post as per the special rules is as follows:- Assistant District : By transfer from the following Industries Officer Categories of the Kerala Industries Subordinate Service:- Industries Extension Officer/ Technical Supervisor. Senior Co-operative Inspector. 3. Thus the post of Industries Extension Officer, Technical Supervisor along with Senior Co-operative Inspector form the feeder category for promotion to the post of Assistant District Industries Officer. The petitioners were entitled to be considered for promotion to the post of Assistant District Industries Officer. Even while continuing as senior Co-operative Inspectors and as evidenced by Ext.P1, petitioners 1 and 2 were included in the select list for promotion to the post of Assistant District Industries Officer. As evidenced by Ext.P3 to P5 orders, they were promoted as Assistant District Industries Officer and their probation was also declared as evidenced by Exts.P6 to P8. Petitioners 3 to 7 were thereafter included in the select list WPC.29149 & 31047 of 2007 3 published by the Government for promotion to the category of Assistant Registrar. The first petitioner was included in the select list for promotion to the post of Project Officer/Deputy Registrar and he was so promoted. The second petitioner was promoted as Assistant Registrar. 4. The contesting respondents had entered service as Technical Supervisors in the Department of Industries and Commerce. The post of Technical Supervisor was originally comprehended by the Subordinate Rules (according to the petitioners). While so, by Government Order dated 6.4.2001, Ext.R11(b) the Government declared the post of Technical Supervisor in the department of Industries and Commerce as gazetted. The Subordinate Rules were amended by Ext.R11(c) notification SRO.No. 150/2001/ID dated 17.2.2001 with effect from 1.7.1983. The post of Technical Officer (which is the re- designated post of Technical Supervisor) was not included in the Subordinate Rules. But corresponding amendment was not made in the Rules by incorporating the post of Technical Officer as part of the state service. In the meanwhile, by the pay revision order of 1998, the scale of pay of Technical Officer and the Assistant WPC.29149 & 31047 of 2007 4 District Industries Officer were brought on a par and fixed at Rs.6675-10550. Prior to the said pay revision order, the scale of pay of Technical Supervisor was actually higher than that of the Assistant District Industries Officer, as is evidenced by Ext.R16 (d),(e) and (f) orders. 5. Respondents 3 to 18, as stated above, were recruited as Technical Supervisors in the Department of Industries and Commerce. Respondents 3 to 7 were included in Ext.P2 select list for promotion to the post of Assistant District Industries Officer for the year 2001, respondents 8,9 and 10 were included in the select list for the same post for the year 2003 and respondents 12 to 18 were not included. The petitioners categorically assert that respondents 3 to 18 were promoted as Assistant District Industries Officer subsequent to the petitioners and therefore respondents 3 to 18 are juniors to the petitioners in the category of Assistant District Industries Officer. The petitioners referred to Ext.P14 final seniority list for the period from 1.1.1997 to 30.6.2001 and Ext.P15 provisional seniority list of Assistant District Industries Officer's for the period from 1.7.2001 to 31.12.2003 and contend that respondents 3 to WPC.29149 & 31047 of 2007 5 18 are obviously juniors to the petitioners in the post of Assistant District Industries Officer. 6. While so, the Government issued Ext.P16 Government order GO(MS).88/2007/ID dated 6.7.2007. Apparently, the said order came to be issued by the Government, taking note of the direction issued by this court in Ext.R16(g) judgment dated 4.1.2005 in WP(C).No.14917/2005. 7. The said writ petition was filed by certain persons working as Technical Officer in the Industries Department seeking a direction to the Government to approve and issue the amendment to the Special Rules for the State service in respect of the post of Technical Officer. Taking note of the admitted position that the post of Technical Officer has been excluded from the Subordinate rules with effect from 1983 as evidenced by Ext.R11 (b) Government order and therefore the necessity to include the said post in the special rules for the State service, this court in Ext.R16(g) judgment issued the following directions: “The Government will consider Ext.P4 and facilitate grant of the approval to the draft special rules as requested in Ext.P4 representation in accordance with law, at WPC.29149 & 31047 of 2007 6 the Government's earliest and by taking whatever steps which can be taken from the side of the Government without causing any undue delay.” 8. The Government noted that there were 15 posts of Technical Officers. The post of Technical Supervisor (later re- designated as Technical Officer) was declared as gazetted and the said post was excluded from the Subordinate Rules. The said post is included in the draft Special Rules for the Kerala Industries Service as feeder category for the post of Assistant Director. Apparently, taking note of the fact that the scale of pay of Technical Supervisor and Assistant District Industries Officer was brought on a par with effect from 1.3.1997, the date of implementation of the 1998 pay revision order, the Government ordered that in future the post of Assistant District Industries Officer shall be the feeder category to the post of Assistant Director of Industries and Commerce. The Director of Industries was directed to prepare a combined seniority list of Technical Officer and Assistant District Industries Officer on inter se seniority with effect from 1.3.1997. Ext.P16 reflects the decision on the part of the Government to merge 15 posts of Technical WPC.29149 & 31047 of 2007 7 Officers with that of Assistant District Industries Officer. Taking note of Exts.P16, P17 provisional list was published by the Director of Industries and Commerce on 12.9.2007, respondents 3 to 18 are shown as appointed to the post of Technical Officer/Assistant District Industries Officer with effect from 1.3.1997 and consequently they are enbloc treated as seniors in the post of Assistant District Industries Officer's. It is in these circumstances, the petitioners have challenged Exts.P16 and P17. 9. The petitioners contend that Ext.P16 order is illegal and unsustainable on several grounds. Firstly it is contended that Ext.P16 order runs to the statutory rules relating to the State Service viz. Kerala State Industries Service Rules. As per the said Rules, the post of Assistant District Industries Officer is included in category 2, Class V and the post of Technical supervisor is one of the feeder categories to the said post. Assuming that the Government has the power to merge the post of Technical Supervisor (petitioners do not admit this position) with that of Assistant District Industries Officer, it can be done only by an amendment of the statutory rules and not by an executive order. WPC.29149 & 31047 of 2007 8 10. It is then contended that the contesting respondents were recruited to the post of Technical Supervisors and they were actually considered for promotion to the post of Assistant District Industries Officer and were promoted as well. They were promoted pursuant to them being included in the select list for the said post. They had accepted promotion to the post of Assistant District Industries Officer and respondents 3 to 18 are juniors to the petitioners in the said post. The said promotions were effected in accordance with law and seniority in the post of Assistant District Industries Officer is to be reckoned with reference to the commencement of service in the said post. This whole position is now sought to be changed by the executive order Ext.P16 by deciding to merge the post of Technical Officer with that of Assistant District Industries Officer with retrospective effect from 1.3.1997. According to the petitioners, the Government has clearly acted in an arbitrary manner and even without jurisdiction in passing Ext.P16 order. 11. A counter affidavit has been filed on behalf of the first respondent. Separate counter affidavits have been filed by the contesting respondents. The contentions taken up by them WPC.29149 & 31047 of 2007 9 are mostly similar. It will suffice to give hereunder the contentions taken up by the respondents. 12. The respondents point out that the post of Technical Supervisor should never have been treated as a feeder category to the post of Assistant District Industries Officer. The post of Technical Officer was created as per GO(MS)No.127/61/ID dated 23.2.2961. The qualification prescribed for direct recruitment to the post of Technical Supervisor was B.Sc Degree in Mechanical Engineering obtained from the Kerala University or BE degree in Mechanical Engineering obtained from the Madras University or equivalent qualification or an Associate Membership Diploma in Mechanical Engineering obtained from Indian Institution of Engineers or an equivalent qualification. It is pointed out that even a person with SSLC who joined as a Co- operative Officer can aspire for appointment to the post of Assistant District Industries Officer. At the time of issue of the special rules for the Industries service, the scale of pay of Industries Extension Officer and Technical Supervisor was the same. But subsequently by Ext.R16 (d) order dated 26.9.1995, pursuant to the request made by the Director of Industries and WPC.29149 & 31047 of 2007 10 Commerce for allowing the higher scale of pay to Technical Supervisor who are graduates in Engineering on a par with professional degree holder in other department, the Government ordered that the scale of pay of Technical Supervisors of Industries Department who are graduates in Engineering will be Rs.2060-3200. This was higher than the scale of pay of Assistant District Industries Officer. By the pay revision order 1998, the scale of pay of Technical Officer was revised to Rs.6675-10550. The same is that of the revised scale of Assistant District Industries Officer which post was included in the State service. Though the contesting respondents say that injustice was done to Technical Officers by equating the post with Assistant District Industries Officer, (they contend that the post of Technical Officer should be placed higher to the post of Assistant District Industries Officer) they contend that by Ext.P16 order the injustice has been ameliorated to a great extent. 13. It is contended that when the Government issued the amended Subordinate Service Rules (or issued a fresh set of rules as the case may be) with effect from 1.7.1983, the post of Technical Supervisor was not included therein. The post of senior WPC.29149 & 31047 of 2007 11 Co-operative Inspector and Industries Extension Officer are included in the Subordinate Service. The State Rules in so far as it provides for the feeder category to the post of Assistant District Industries Officer in category 2 Class V will have to be read in conjunction with the Subordinate Service Rules. Though the post of Technical Supervisor is included in column No.2 against the post of Assistant District Industries Officer, the said provision became unenforceable qua the post of Technical Supervisor when the same was excluded from the Industries Subordinate Service. It is contended that only a post which is included in the Subordinate service could be treated as a feeder category to the post of Assistant District Industries Officer which is included in the State Service. A post which is admittedly not included in the subordinate service and which was eligible to be treated atleast on a par with that of Assistant District Industries Officer with effect from 1.3.1997, going by the revised scale of pay brought into existence with effect from the said date obviously cannot be treated as feeder category for the post of Assistant District Industries Officer. In the circumstances it is contended that what has been done under Ext.P16 order is only what ought to WPC.29149 & 31047 of 2007 12 have been logically, reasonably and fairly done by the Government, contemporaneous to the enforcement of the subordinate rules by GO.(P).No.30/2001/ID dated 17.2.2001. There is no warrant for interference with Ext.P16 order, contend the respondents. 14. I heard learned counsel for the petitioners Sri. Elvin Peter, Sri. Deepu Thankan, Senior Government Pleader Sri.Nandakumar, learned counsel for the contesting respondents Sri.P.C.Sasidharan, Sri.S.P.Aravindakshan Pillai, Sri.Kaleeswaram Raj, Sri.P.Narayanan and Sri.T.A.Shaji. 15. Sri.Elvin Peter vehemently contends that Ext.P16 order is vitiated and unsustainable for more than one reason. He firstly contends that enforcement of Ext.P16 would result in a direct conflict with the statutory rules viz. State Rules for the Industries Service, in as much as the post of Technical Officer which according to the State Rules is treated as feeder category to the post of Assistant District Industries Officer has been merged with the promotion post. In effect, therefore Ext.P16 order amends the statutory rules, according to him. He refers to the following judgments to contend for the position that executive WPC.29149 & 31047 of 2007 13 orders issued by the Government under Article 162 of the Constitution cannot go against statutory special rules. He submits that executive orders can only supplement or not supplement but not supplant the statutory rules. The decisions referred to in this regard are: (1) State of Maharashtra vs. Jagannath Achyut Karandikar (AIR 1989 S.C 1133) (2) T.R.Kapur and others vs. State of Haryana and others (AIR 1987 S.C 415) (3) C.L.Verma vs. State of M.P. and another (AIR 1990 S.C 463) (4) Pankajakshan vs. State (1996(2) KLT 124) (5) Ex.Major N.C.Singhal vs. Director General, Armed Forces Medical Services, New Delhi and another (AIR 1972 S.C 628) (6) P.Sadagopan and others vs. Food Corporation of India and another (1997(4) SCC 301) (7) P.Mohan Reddy vs. E.A.A. Charles (AIR 2001 S.C 1210); and (8) Vishal Properties (P) Limited vs. State of U.P. (2007(4) KLT SN.69(SC). WPC.29149 & 31047 of 2007 14 16. Sri.Elvin Peter contends that assuming that the Government has power to merge the post of Technical Supervisor (Technical Officer) to that of an Assistant District Industries Officer, it can be done only with prospective effect. In merging the post with retrospective effect from 1.3.1997 the Government has really tinkered with the vested right of the petitioners to reckon the seniority in the post of Assistant District Industries Officer, with reference to the date of commencement of service in the said post. He then contends that the contesting respondents have actually been considered for selection to the post of Assistant District Industries Officer and had been promoted to the said post, later in point of time to the petitioners. Interse seniority of the petitioners and the contesting respondents are governed by the said orders of promotion and such orders have attained finality. Final seniority list in the post of Assistant District Industries Officer cannot be tinkered with by an executive order, which is given retrospective effect. 17. In my view, the first and foremost issue is whether the order issued by the government is vitiated by an arbitrariness which is violative of Article 14 and 16 of the Constitution. If the WPC.29149 & 31047 of 2007 15 answer to the above question is in the affirmative, then the petitioners are obviously entitled to succeed, without necessitating a detailed adjudication on the other contentions raised by the counsel for the petitioners including the one that the order is in contravention of the statutory rules. Though I propose to consider each one of the contentions raised by the counsel as enumerated above, it will be apposite to consider the question of constitutionality of the order in question in the first instance. 18. There are certain facts which are either admitted or not admitted. The post of Technical Supervisor in the Industries Department was brought into existence by GO(MS) 127/61/ID dated 23.2.1961. It was originally included in the non gazetted category. The educational qualification for the said post, as I have mentioned in paragraph 12 above, is principally a degree in Engineering. Admittedly, it was declared to be a gazetted post by Government Order GO(MS)No.429/01/ID dated 6.4.2001. Obviously it ought to have been included in the State Service Rules. The special rules for the subordinate service issued as per GO(P).No.30/2001/ID dated 17.2.2001 with effect from WPC.29149 & 31047 of 2007 16 1.7.83 consciously excluded the post of Technical Officer from the purview of the Subordinate service . At the same time the post of Industries Extension Officer and senior Co-operative Inspector are comprehended by the Subordinate rules. 19. It would be advantageous to consider, as to what could have been logically done by the Government at least contemporaneous to the enforcement of the subordinate service rules vide GO dated 17.2.2001. It took a conscious decision not to include the post of a Technical Officer as part of the Subordinate service. It will have to be remembered that almost at the same point of time viz. on 6.4.2001 vide GO(Ms) No.429/2001 the post of Technical Officer was declared as gazetted. There is no gazetted post as such included in the Subordinate service, nor can it be gainsaid that any gazetted post in the Industries Department is not included in the State Service. If that be so, in the fitness of things, it would have only been appropriate that the post of Technical Officer be included in the State service. 20. Once this position is accepted, then the next question which arises in the logical sequence of events, is the WPC.29149 & 31047 of 2007 17 place in the state service where the post of Technical Officer is to be included. This obviously lies exclusively within the domain of the Government which also is the Rule making authority. But the fact which commends itself for acceptance in this regard is that the scale of pay of Technical Officer has been on a par with that of an Assistant District Industries Officer with effect from 1.3.1997. As a matter of fact, going by Ext.R16 (d)(e) and (f), the scale of Technical Officer was higher than that of Assistant District Industries Officer prior to 1998 pay revision order. Be that as it may, it is undisputed that the scale of pay of Technical Officer has been the same as that of the Assistant District Industries Officer with effect from 1.3.1997. Had therefore the Government been prompt in taking contemporaneous action on the post of Technical Officer being declared as gazetted, it would have been only appropriate for the post of Technical Officer to be treated on a par with Assistant District Industries Officer, within the format contemplated by the State Service Rules. In an ideal situation, amendment to the State Service rules, contemporaneous to the enforcement of the subordinate service rules should have followed logically. For some reason there has WPC.29149 & 31047 of 2007 18 been delay on the part of the Government in effecting appropriate amendment to the statutory rules to reflect the factual position as stated above. 21. In this view of the matter I am unable to accept the contention of the learned counsel for the petitioners that Ext.P16 order in so far as it directs merger of 15 posts of Technical Officer with that of Assistant District Industries Officer in the department of Industries and Commerce with effect from 1.3.1997 should be considered as arbitrary or otherwise violative of Articles 14 and 16 of the Constitution of India. 22. The principal contention put forwarded by Sri.Elvin Peter, learned counsel for the petitioners was that Ext.P16 order obviously contravenes the special rules for the State Service. He contends that the rules contemplates the post of Technical Officer as a feeder category to the post of Assistant District Industries Officer. The situation continues even as on date. Ext.P16 order behooves that the post of Technical Officer be merged with that of its promotion post of Assistant District Industries Officer. He contends that assuming without admitting that it can be done, the same obviously necessitates an amendment to the special WPC.29149 & 31047 of 2007 19 rules. This has not been done and therefore Ext.P16 order in so far as it contravenes the statutory rules will have to be declared as violative of the statutory rules, according to him. I have already referred to the decisions cited by him in support of his contention. As a proposition in law, it could hardly be disputed that executive orders cannot contravene the statutory rules. The moot question is whether Ext.P16 order contravenes the statutory rules as such. 23. I have referred to the relevant portion of the State Service Rules which provides for the method of appointment to the post of Assistant District Industries Officer coming under category 2 in Class V. I have also extracted the relevant portion dealing with the method of appointment for the purpose of appreciating the contention of the learned counsel for the petitioners. There