IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI TUESDAY, THE 30TH SEPTEMBER 2008/ 8TH ASWINA 1930 WP(C).No. 5343 of 2008(J) ------------------------------------ PETITIONERS: --------------------- 1. SUDHEER.P., PEON, SOIL CONSERVATION OFFICE, THALASSERY, KANNUR DT. 2. P.K.MATHEW, LASCAR, SOIL CONSERVATION OFFICE, MANANTHAVADY, KELLOOR P.O, WAYANAD DIST. PIN 670 645 3. SREENIVASAN.K., LASCAR, SOIL CONSERVATION OFFICE, PERAMBRA, KOZHIKODE DIST. 4. JOHNY.M.F., PEON, ASSISTANT DIRECTOR OF SOIL CONSERVATION (E.H.), P.B.M BUILDINGS, MEENANGADI, WAYANAD DISTRICT. 5. H.MANZOOR KHAN, PEON, SOIL CONSERVATION OFFICE, MINI CIVIL STATION, CHENGANNUR, ALAPPUZHA DISTRICT. 6. S.ANILKUMAR, LASCAR, ASSISTANT DIRECTOR (SOIL SURVEY), KAICO BUILDINGS, FORT P.O., THIRUVANANTHAPURAM. 7. SURESHKUMAR K.P., LASCAR, SOIL CONSERVATION OFFICE,, VITH FLOOR, REVENUE TOWER, CHANGANACHERRY, KOTTAYAM DISTRICT. BY ADV. SRI.KALEESWARAM RAJ. RESPONDENTS: ----------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF AGRICULTURE, SECRETARIAT, THIRUVANANTHAPURAM. W.P.(C). NO.5343/2008-J: 2. THE DIRECTOR OF AGRICULTURE, VIKAS BHAVAN, THIRUVANANTHAPURAM. 3. KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY THE SECRETARY, KERALA PUBLIC SERVICE COMMISSION, PATTOM, THIRUVANANTHAPURAM. SR.GOVT. PLEADER SRI. NANDAKUMAR FOR R1 & R2, ADV. SRI.ALEXANDER THOMAS,SC,KPSC FOR R3. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11/06/2008, THE COURT ON 30/09/2008, DELIVERED THE FOLLOWING: prv. V.GIRI, J. ------------------------- W.P.(C)No.5343 of 2008 ------------------------- Dated this the 30th day of September, 2008. JUDGMENT The petitioners are working as Last Grade Servants in the Soil Conservation Unit of the Agriculture Department. At the outset, it has to be mentioned that there is a dispute as to whether Soil Conservation Unit in the Agriculture Department is a separate department or whether it is only a unit under the Agriculture Department as such. I will refer to this aspect at a later stage. 2. The Public Service Commission issued Ext.P1 notification dated 18.11.2003 inviting applications for the post of Agricultural Assistant Grade II in the Agriculture Department. 5% of the total vacancies are made available for the Last Grade Servants in the Agriculture Department for appointment by transfer. Apparently, the petitioners, considering themselves eligible for the said post, applied and they had appeared for a written examination conducted by the Public Service Commission. The Commission published a short list of candidates, W.P.(C)No.5343 of 2008 :: 2 :: Ext.P2, which included the petitioners as well. Thereafter, they appeared for verification of the records. By Ext.P3 series orders, the commission informed the petitioners that the Soil Conservation Unit is not part of the Agriculture Department and therefore, they are not eligible to be considered for appointment by transfer to the post of Agricultural Assistant in the Agriculture Department. This was challenged by the petitioners in W.P.(C)No.23219/06. The said writ petition was disposed of by this court as per Ext.P4 judgment, requiring the Government to consider the representations filed by the petitioners. The Government, thereafter, considered the petitioners' representations, but rejected the same under Ext.P5 order dated 4.1.2008. Exts.P3 and P5 have been challenged in this writ petition. 3. A statement has been filed on behalf of the Government supporting Ext.P5. 4. I heard learned counsel for the petitioners Mr.Kaleeswaram Raj and Mr.Nandakumar, learned Senior Government Pleader. W.P.(C)No.5343 of 2008 :: 3 :: 5. Mr.Kaleeswaram Raj submits that Soil Conservation Unit is only a part of the Agriculture Department. He makes reference in this regard to Ext.P8, stated to be an extract from the pay commission report of 2006 wherein Clause 5.74.1 states that Soil Conservation Department is an independent unit under the control of the Agriculture Department. It is further stated therein that Soil Conservation and Soil Survey are the two wings of Agriculture Department. It is further stated therein that the Director of Agriculture is the Head of the Department. Reference is also made to para 5.74.6 which speaks about the formation of a separate Department for Soil Conservation. The pay commission report refers to the alleged decision in this behalf by the Director of Agriculture, but nevertheless records the recommendation of the commission to consider the formation of a fullfledged separate department for soil conservation working in close co-ordination with the Department of Agriculture. Placing heavy reliance on this aspect in the pay commission report of 2006, W.P.(C)No.5343 of 2008 :: 4 :: Mr.Kaleeswaram Raj submits that this report was accepted by the Government and thereafter implemented as well. Soil Conservation Unit is treated as part of the Department of Agriculture and therefore, when Ext.P1 notification enables the Last Grade Servants in the Department of Agriculture as such to aspire for appointment to the 5% vacancies in the post of Agricultural Assistants in the Department of Agriculture, persons like the petitioners working as Last Grade Servants in the Soil Conservation Unit have a right to be so considered along with the other Last Grade Servants working in different units of the Agriculture Department. 6. Mr.Nandakumar, on the other hand, submits that Soil Conservation Unit functions as fullfledged department. He refers to Ext.R1(a) Government Order, G.O.(MS)No.1059/63/Agri dated 7.12.1963, which contains a direction relating to the creation of a separate Department for Soil Conservation. Ext.R1(a) order contains a Government sanction for creation of a separate Department of Soil Conservation under the W.P.(C)No.5343 of 2008 :: 5 :: Director of Soil Conservation. It also refers to appointment of one Dr.M.S.Nair, Former Director of Rubber Plantations as the Director of Soil Conservation. It further directs that the Headquarters of Director of Soil Conservation will be at Trivandrum. 7. Mr.Nandakumar further refers to G.O.(MS) No.332/91/AD dated 20.11.1991, an executive order which essentially constitutes Special Rules providing for reservation of 5% in the post of Agricultural Assistants Grade II for the Last Grade Servants in the Department of Agriculture. He further refers to G.O.(P) No.236/72/Agri dated 1.7.1972, where under the Government had laid down the revised qualifications and method of recruitment to the post of Overseer, Draftsman Grade I, Draftsman Grade II, Surveyors and Tracers in the Agriculture (Soil Conservation) Department. Mr.Nandakumar submits that right from 1963 Soil Conservation Unit is treated as a separate Unit as such. It is, in fact, treated as a separate Department. But since the work being carried on in the Department of W.P.(C)No.5343 of 2008 :: 6 :: Soil Conservation, as he describes it, is extremely similar or at least inter-linked with the work carried on by the persons holding parallel posts or similar posts in the Department of Agriculture and Soil Conservation was originally treated as a wing of the Department of Agriculture. Executive orders relating to the Soil Conservation Department have come to be issued from the Agriculture (Establishment) Department. The Head of the Department of Last Grade Servants like the petitioners is the Director of Agriculture (Soil Conservation). Soil Conservation is for all intents and purposes a separate Department and in fact and in law, the Director of Agriculture cannot be said to be the Head of the Department (Soil Conservation Unit). It is also contended that because it is stated in the Pay Commission Report that the Director of Agriculture is the Head of the Department, it may not improve the case of the petitioners. 8. It is the specific case of the Government that the Agriculture Department and the Soil Conservation W.P.(C)No.5343 of 2008 :: 7 :: Department followed different Special Rules. It is further asserted that the earlier pay revision orders and administrative reports and Budget Allocation Documents show that Soil Conservation Department is a separate Department. Promotions, seniority list, transfer and posting of persons are also done by each department. Likewise there are Departmental Promotion Committees for the two departments. Though a statement alone has been filed in this case, similar is the stand taken in Ext.P6, which is a counter affidavit filed by the Director of Agriculture, 3rd respondent in the earlier writ petition, W.P.(C)No.23219/06. 9. I cannot say that the contention vehemently put forth by Mr.Kaleeswaram Raj that Soil Conservation Unit will have to be treated as coming under the umbrella of the Agriculture Department as such and it has been so treated in certain quarters, is a completely misconceived argument. But, what is required to be done by this court is to take note of the totality of the circumstances and then decide whether the stand taken by the Government W.P.(C)No.5343 of 2008 :: 8 :: in Ext.P5 is so perverse or untenable or unsustainable to be interfered with by this court under Article 226 of the Constitution of India. No doubt, in Ext.P8 the pay commission report, there is even a recommendation for creation of a fullfledged Soil Conservation Department, implying that even in 2006 Soil Conservation Unit has been functioning as a separate wing of the Department of Agriculture. But, in my view, the question which really arises for consideration is whether Ext.P1 notification contemplated Last Grade Servants in the Soil Conservation Unit also as eligible to the post of Agricultural Assistants Grade II in the Department of Agriculture. In my view, it cannot be said that the notification contemplated persons like the petitioners as also eligible for applying to the post of Agricultural Assistants Grade II in the Agriculture Department against the 5% vacancies reserved for Last Grade Servants in the Agriculture Department. I first take note of G.O.(MS) No.332/91 dated 20.11.1991 which undisputedly is the Government order that is currently in force and which W.P.(C)No.5343 of 2008 :: 9 :: provides for reservation of 5% vacancies in the post of Agricultural Assistants Grade II for the Last Grade Servants in the Agriculture Department. It is issued by the Agriculture Department, to be precise, Agricultural (Farms) Department. I find it significant to take note of the fact that G.O.(P)No.232/72/Agri dated 1.7.1972 where under the Government has provided the revised qualifications and method of recruitment for the post of Overseer, Draftsman Grade I, Draftsman Grade II, Surveyor, Tracers in the Agriculture (Soil Conservation) Department, specifically refers to the Department as such as Agriculture (Soil Conservation) Department. The said Government order provides for qualifications and method of appointment to the aforementioned posts and refers to the recommendations from the Director of Agriculture (Soil Conservation). The Director of Agriculture (Soil Conservation) is the appointing authority of persons like the petitioners. But, he obviously is not the appointing authority or the Head of the Department of Agricultural Assistants Grade II in the Agriculture Department. W.P.(C)No.5343 of 2008 :: 10 :: 10. I have, in the earlier portion of the judgment, referred to the other Government orders, referred to by Mr.Nandakumar. I also take note of G.O. (MS)No.305/97/AD dated 26.11.1997, where under the Government had modified the educational qualifications for the post of Works Superintendent in the Agriculture (Soil Conservation) Department. Similarly, I take note of G.O.(MS)No.134/71/Agri dated 6.5.1971 from the Agriculture (Establishment) Department which lays down the qualifications and method of appointments to the post of Field Assistants in the Soil Conservation Department. What I have discerned as crucial, by reference of these orders, is that whenever the Government had intended a reference to the Soil Conservation Unit, or Soil Conservation Department, as the case may be, they have either referred to as Agriculture (Soil Conservation) Department or Department of Soil Conservation, as the case may be. Soil Conservation and Soil Survey may have been treated as different units under the Agriculture Department as such, as contended by W.P.(C)No.5343 of 2008 :: 11 :: Mr.Kaleeswaram Raj, in the norms for the transfer of posting of employees under the Agriculture Department, Soil Conservation, Soil Survey and Farm Information Bureau. But, what I have discerned as significant is that in each of the Government orders where under the Government or the competent authority has intended to refer to the Soil Conservation Unit or Soil Conservation Department, as the case may be, as distinguished from the Agriculture Department, they have specifically referred to as either Soil Conservation Unit of Agriculture Department or Department of Soil Conservation, as the case may be. 11. In this background, I find that Ext.P1 notification will have to be read in conjunction with G.O. (MS)No.332/91/AD dated 20.11.1991 which practically constitutes the Special Rules for 5% of the Agricultural students in the Agriculture Department. The said Government Order refers to the vacancies in the Agriculture Department and if the Government had intended that the post of Agricultural Assistants Grade II W.P.(C)No.5343 of 2008 :: 12 :: referred to in the said Government Order should also contemplate Last Grade Servants in the Soil Conservation Unit of the Agriculture Department (as described by the petitioners) or of the Department of the Soil Conservation, as the case may be (as contended by the Government), then the order would have definitely indicated the same. That has not been done. I think, it is only appropriate to construe Ext.P1 notification as referable to the Last Grade Servants in the Agriculture Department meaning as it were, the Department of Agriculture, not including the Last Grade Servants in the Soil Conservation Unit of the Agriculture Department or the Department of Soil Conservation, as the case may be. In other words, the stand taken in this regard by the Government, as evidenced by Ext.P5, seems to be reasonable and correct, and at any rate, it is not vitiated by an unreasonable or an unsustainable view, in fact and in law. I do not think it necessary, in the circumstances, to finally decide whether the department of Soil Conservation is a Unit of the Department of Agriculture or W.P.(C)No.5343 of 2008 :: 13 :: an independent fullfledged department, as the case may be. Since, what is involved is only construction of Ext.P1 notification, I have undertaken the same with reference to the Government order providing for 5% reservation of the vacancies for appointment by transfer to the Last Grade Servants and also in the light of associated Government Orders. It would be inappropriate to undertake an adjudication on the larger issue where it really is not necessary to be so addressed by this court. For all these reasons, I do not find any merit in this writ petition. It is accordingly dismissed. Sd/- (V.GIRI) JUDGE sk/ //true copy//