IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON THURSDAY, THE 26TH FEBRUARY 2009 / 7TH PHALGUNA 1930 WP(C).No. 11332 of 2005(Y) -------------------------------------- PETITIONER(S): ----------------------- 1. AJITH KUMAR.V.S, VELIKKARA VILAKATHU HOUSE, VILAVOORKAL, MALAYANKEEZHU P.O., THIRUVANANTHAPURAM. 2. MURUKAN.C., KALAYIL VEEDU, THALAYAL, BALARAMAPURAM P.O., THIRUVANANTHAPURAM. 3. SHIHABUDDIN.S., CHIRAYIL PADINJATTATHIL, NEERAVIL, PERINAD, KOLLAM DISTRICT. BY ADV. DR.K.P.SATHEESAN MR.K.K.GOPINATHAN NAIR MR.M.R.JAYAPRASAD MR.T.K.KAMALJITH RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY, INDUSTRIES RURAL DEVELOPMENT DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM. 2. THE SECRETARY, KHADI AND VILLAGE INDUSTRIES BOARD, VANCHIYOOR, THIRUVANANTHAPURAM. 3. KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, P.S.C. OFFICE, PATTOM, THIRUVANANTHAPURAM. R1 BY GOVERNMENT PLEADER MR.V.TEK CHAND R2 BY ADV. MR.K.P.HARISH,SC,KERALA KHADI BOARD R3 BY ADV. MR.ALEXANDER THOMAS, SC, KPSC THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/02/2009, ALONG WITH WPC NO. 18124 OF 2006 AND WPC NO. 33558 OF 2005, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO. 11332/2005-Y APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE NOTIFICATION ISSUED BY THE 3RD RESPONDENT IN GAZETTE DATED 01/02/2000. EXT.P2: COPY OF THE RANKED LIST DATED 06/10/2003 PUBLISHED BY THE 3RD RESPONDENT. EXT.P3: COPY OF THE REPRESENTATION FILED BY PETITIONER BEFORE THE 2ND RESPONDENT DATED 31/01/2005. EXT.P4: COPY OF THE REPRESENTATION FILED BY THE PETITIONERS' ASSOCIATION DATED 16/02/2005. EXT.P5: COPY OF THE LIST OF EMPLOYEES PROMOTED AS JUNIOR CO-OPERTIVE INSPECTORS FROM 1997 ONWARDS. EXT.P6: COPY OF THE NOTIFICATION NO.KH.15029/81/HI. DATED 29/06/2005 ISSUED BY THE 2ND RESPONDENT. EXT.P7: COPY OF THE LIST IN THE NAMES OF 16 PERSONS AND THE PLACE OF POSTING COLLECTED BY THE PETITIONER. (I.A.NO.3570/2006) EXT.P7: COPY OF THE REPLY GIVEN BY THE DEPUTY DIRECTOR, KHADI & VILLAGE INDUSTRIES BOARD UNDER RIGHT TO INFORMATION ACT DATED 10/07/2006. (C.M.A.NO.4927/2008.) EXT.P8: COPY OF THE ORDER NO.KB.1328/03/E1(A) DATED 04/04/2003. EXT.P9: COPY OF THE ORDER NO.KB.8738/97/E1(A) DATED 08/01/1999. EXT.P10: COPY OF THE RELEVANT PAGES OF THE NOTIFICATION NO.KB.6936/97/E1(B) DATED 31/03/2006. RESPONDENT'S EXHIBITS: EXT.R1(a): COPY OF THE LETTER DATED 10/07/2005 NO.KB/1209/99/EI(B) ISSUED BY THIS 2ND RESPONDENT TO THE 3RD RESPONDENT. EXT.R2(b): COPY OF THE PROCEEDINGS NO.KB.1209/99/E1(B). DATED, THIRUVANANTHAPURAM 09/10/2006 PASSED BY THE SECRETARY, KERALA KHADI & VILLAGE INDUSTRIES BOARD, THIRUVANANTHAPURAM. //TRUE COPY// P.A. TO JUDGE Rs/ P.R.RAMACHANDRA MENON, J. ====================== W.P.(C) Nos.11332 & 33558 of 2005 and 18124 of 2006 ====================== Dated, this the 26th day of February, 2009 J U D G M E N T “C.R.” Whether the prescribed Ratio between the Direct Recruits and the promotees in the Kerala Khadi and Village Industries Board ('Khadi Board' in short) has to be maintained with respect to the 'cadre strength' or the 'vacancies', is the basic issue involved. 2. The case of the petitioners in all these writ petitions is mainly against the appointments given by the second respondent 'Khadi Board' by way of promotion to the posts of Junior Co-operative Inspector, over and above the ratio fixed by the Regulations produced as Exhibit P6 in W.P.(C) No.11332 of 2005 (Exhibit P2 in W.P.(C) No.18124 of 2006). It is contended that the ratio of 60:40 prescribed between the direct recruits and promotees has been violated and that the excessive promotions are detrimental to the interest of the petitioners who are waiting for their W.P.(C) Nos.11332 & 33558 of 2005 and 18124 of 2006 -:2:- turn by virtue of their position in the rank list prepared and published by the PSC. The averments and allegations as to the violation of the ratio have been denied by the Board through different statements filed in W.P.(C) No.11332 of 2005 and as per the counter affidavit filed in W.P.(C) No.18124 of 2006. 3. The contention of the petitioners in W.P.(C) No.11332 of 2005 (which is treated as the 'leading case' for the purpose of convenience), the vacancies originally notified as borne by Exhibit P1 were only '4'. After filing the writ petition, pursuant to the interim order dated 20.6.2005, '8' more vacancies were reported to the PSC as borne by Exhibit R1(a) produced along with the statement filed by the Khadi Board in response to I.A.No.15300 of 2005. Thereafter, the petitioners produced Exhibit P7 along with I.A.No.3750 of 2006 showing the particulars of the 16 persons stated as promoted after 1996 under the 40% quota ear-marked to the feeder category of Junior Co- W.P.(C) Nos.11332 & 33558 of 2005 and 18124 of 2006 -:3:- operative Inspectors. The hypothetical contention putforth in paragraph 4 of the affidavit in support of the I.A. is that, if 40% quota for promotees denotes '16' vacancies/promotees, the corresponding extent of 60% ear- marked for Direct Recruits will come to '24' and since only 12 vacancies (originally 4 + subsequent 8 pursuant to the interim order) were reported to the PSC, there is a residual extent of '12' more vacancies seeking the same to be reported as per the said interlocutory application. However, this Court while passing the interim order dated 15-9-2006 in the said I.A. No.3570 of 2006 directed the Khadi Board to report only '5' more vacancies of Junior Co-operative Inspectors to the PSC before the expiry of rank list, however, making it clear that the PSC need not advise candidates against those 5 vacancies until further orders. Pursuant to the above said interim order, 5 more vacancies were reported by the Khadi Board as pointed out in their statement dated NIL (filed on 4-10-2006) and as confirmed W.P.(C) Nos.11332 & 33558 of 2005 and 18124 of 2006 -:4:- by the third respondent in their counter affidavit dated 31- 10-2006. Referring to the application of the quota rule on the basis of “cadre strength”, particularly based on the principle/dictum laid down by the Apex Court in PRAKASH v. KURIEN [1999 (2) KLT 710 (SC)], the Khadi Board has given the break up figures as follows:- Cadre strength of J.C.I. - 36 40% of 36 cadre strength (4 promotees) - 14 Present strength of promotees - 11 60% of quota of for direct recruitment (of the cadre strength) - 22 No. of J.C.I. now working who are directly recruited through K.P.S.C. - 21 No. of vacancies to which advice list is already received - 3 Accordingly, it is contended by the second respondent Khadi Board that altogether 24 persons were recruited through the PSC, which reveals that the recruitment to two posts was in excess than the prescribed quota for the direct recruits and however, that these two posts have to be W.P.(C) Nos.11332 & 33558 of 2005 and 18124 of 2006 -:5:- adjusted later in tune with the judgment of the Apex Court to remove the imbalance. It is asserted by the Khadi Board that the quota rule has never been violated and that the number of promotees never exceeded 14 at any point of time. 4. Along with the reply affidavit dated 22-10-2008, petitioners have given the particulars of the concerned appointments/promotions effected by the Khadi Board, stated as obtained under the relevant provisions of the Right to Information Act, 2005 and the same has been produced as Exhibit P7 (re-numbered by the Court as Exhibit P7(x) since yet another document has already been marked as Exhibit P7 in I.A.No.3570 of 2006). This document contains the particulars of the cadre strength, the number of vacancies filled up through the PSC, the number of further vacancies reported to the PSC and number of promotions effected by the Khadi Board as given in the statement already filed by the Board, as referred to herein W.P.(C) Nos.11332 & 33558 of 2005 and 18124 of 2006 -:6:- before in response to I.A.No.3570 of 2006, which hence, tally with each other. 5. Placing reliance on the proceedings of the Khadi Board produced as Exhibits P8 and P9 giving promotions to the persons concerned, it is contended by the petitioners that the names shown at Sl.No.7 of Exhibit P8 and at Sl.No.1 (under category No.2) do not find a place in the list of persons shown as Exhibit P7 promotees produced along with I.A.No.3570 of 2006. Accordingly, it is contended by the petitioners that '5' more vacancies which are liable to be ear-marked for direct recruitment are still available and since '5' more vacancies have admittedly been reported pursuant to the interim order dated 15-9-2006 i.e., before the expiry of the rank list, advice memo has to be issued by the PSC to 5 more candidates from the concerned rank list. It is further contended that since these actual/original slots available for direct recruitment were filled up by giving promotions to respondents 4 to 8, they are liable to be W.P.(C) Nos.11332 & 33558 of 2005 and 18124 of 2006 -:7:- reverted (to be adjusted later as and when vacancies arise) so as to accommodate the direct recruits, particularly in view of the law declared by the Apex Court as reported in AWADH PRASAD SINGH & OTHERS v. STATE OF BIHAR & OTHERS [AIR 1990 SC 1256]. 6. There cannot be any dispute as to the right of the eligible direct recruits to be placed over and above the promotees even by reverting them, if there is any excess promotion, in view of the authoritative pronouncement of the legal position by the Apex Court. But the crucial question involved in the present case is, as to how the ratio between the direct recruits and promotees has to be applied i.e., whether it is to be in respect of the “cadre strength” or against the “vacancies” available. 7. In the case discussed by the Supreme Court as referred to above, the factual position provided for reckoning all the vacancies available in a 'particular W.P.(C) Nos.11332 & 33558 of 2005 and 18124 of 2006 -:8:- financial year' and in turn, for fixation of the inter se seniority. The contention of the promotees, who happened to officiate the posts for quite long in excess of the quota ear-marked for promotees before the direct recruits came to occupy the slots available to them, was considered and held by the Apex Court that this officiation will not give any right for such persons who occupied the above slots ear- marked for a different category (Direct Recruits), though they have officiated for quite long. Accordingly, the direct recruits were given placement over and above the promotees therein. The issue involved in the present case, i.e, the manner of application and appropriation of ratio as to whether it has to be in respect of the “cadre strength” or not, was not a subject matter of the said case. 8. The specific case putforth by the Khadi Board in the counter affidavit filed in W.P.(C) No.18124 of 2006 and the statement filed in W.P.(C) No.11332 of 2005 is that they had chosen to follow the dictum laid down by the Apex W.P.(C) Nos.11332 & 33558 of 2005 and 18124 of 2006 -:9:- Court in 1999(2) KLT 710(SC) holding that the ratio has to be applied in respect of the “cadre strength” and not against 'vacancies'. The said stand is vehemently opposed by the petitioners stating that the decision rendered by the Apex Court was in respect of the Government service in Kerala and in view of the specific stipulation provided under Note 3 to Rule 5 in Part II of the Kerala State and Subordinate Service Rules, 1958. It is submitted by the learned counsel for the petitioners that the provisions of the K.S.R. as well as K.S.& S. S.R are not at all applicable to the second respondent Khadi Board, which is a separate legal entity and governed by the Kerala Khadi and Village Industries Board Act, 1957 and the Regulations formulated by virtue of the powers conferred under Section 34 of the Act. Accordingly, it is contended that the Board is bound to follow Exhibit P6 Regulation in W.P.(C) No.11332 of 2005 applying the ratio against the available 'vacancies' and not against the 'cadre strength'. W.P.(C) Nos.11332 & 33558 of 2005 and 18124 of 2006 -:10:- 9. The above preposition putforth from the part of the petitioner does not hold any water at all in view of the specific case putforth by the petitioner in W.P.(C) No.11332 of 2005 under Ground (B), which is extracted below:- “B) The cadre strength of Junior Co-operative Inspector is 36. The ratio is 60:40 is to be maintained between direct recruits and promotees. This ratio should be applied to the cadre strength as a whole and not to vacancies as and when they arise. If the quota rule is applied there should be 22 direct recruits. But as on today there are 14 direct recruits. Thus there is a deficiency of 8 recruits as per the quota. Refusal to report these 8 vacancies to PSC is arbitrary and thus violative of Article 14 of the Constitution of India.” In view of the above admitted facts as to the manner of application of the quota rule and the definite case projected by the petitioners, it is no more open to them to take 'U' turn and contend that the ratio has to be applied against the 'vacancies' and not against the 'cadre strength'. It is also relevant to note that the extent of vacancies stated as liable to be reported to the PSC is shown as '8' in Ground 'B' (referring to the relative extent of the ratio). It has also to be noted from the undisputed facts that this Court, vide W.P.(C) Nos.11332 & 33558 of 2005 and 18124 of 2006 -:11:- interim order dated 20-6-2005, had directed the Khadi Board to report all the above '8' vacancies, pursuant to which the same was reported by the Khadi Board as borne by Exhibit R1(a), which shows that the petitioners cannot have any further grievance in this regard. 10. With regard to the application of the quota rule with reference to the 'cadre strength', it is pointed out by the learned counsel appearing for the Khadi Board that there is no inconsistency or deviation from the Regulations formulated and notified by the Khadi Board. It is submitted that the document produced as Exhibit P6 Regulations and Exhibit P10 amended Regulations in W.P.(C) No.11332 of 2005 do not contain the full text of the Regulations; but for the operative portion of the Appendix with regard to the different posts. Referring to Regulation No.”7(d)” of the Kerala Khadi and Village Industries Board (Classification and Conditions of Recruitment of Staff) Regulations, 1967, it is pointed out that where the prescribed method of W.P.(C) Nos.11332 & 33558 of 2005 and 18124 of 2006 -:12:- recruitment is by Direct, by transfer or promotion, the proportion or order in which the vacancies should be filled up by persons recruited direct and by those recruited by transfer or promotion, shall be such as may be fixed by the Board. Similar provision as incorporated vide Regulation No.“6(d)” of the amended Regulations 2006 has also been brought to the notice of this Court. On reading the above provisions and the Appendix harmoniously, it is contended by the Khadi Board that there is nothing wrong on their part in deciding to apply the ratio with reference to the “cadre strength” adopting the dictum laid down by the Apex Court in 1999(2) KLT 710 (SC). 11. However, the learned counsel for the petitioners attempted to confront the position by referring to the objects and reasons of the Kerala Khadi and Village Industries Board (Classification and Conditions of Recruitment of Staff) Regulations, 1967. Sections 4 and 5 specify the power of the Board to appoint the members of W.P.(C) Nos.11332 & 33558 of 2005 and 18124 of 2006 -:13:- the staff of the Board and to determine the pay, allowance and other conditions of service of the members of staff by way of Regulations. Reference is also made to Section 34 as to the power of the Board to bring about the Regulations with previous sanction of Government in respect of the remuneration, allowance and other conditions of the service of the members of the Staff of the Board (other than the Secretary) as provided under Section 2(b) therein; in so far as the same is not inconsistent with the Act and as provided thereunder. Obviously, the above provisions clearly deal with the powers of the Khadi Board as to the specific instances of remuneration, allowance and other conditions of service of the members of the Staff of the Khadi Board. It is also true that the concerned Regulations produced as Exhibit P2 in W.P.(C) No.18124 of 2006 (Exhibit P6 in W.P. (C) No.11332 of 2005) as well as Exhibit P10 the amended Regulations were formulated by the Board invoking the power provided under Section 34. But this does not refer to W.P.(C) Nos.11332 & 33558 of 2005 and 18124 of 2006 -:14:- manner of application of ratio provided in the concerned Regulations fixing the same as 60:40 between the direct recruits and promotees. It was in the said circumstances, as contended by the Khadi Board, that the Board, in view of the Regulation No.7(d) of Exhibit P6 Regulations (full text not being part of Exhibit P6) conferring the right upon the Board to regulate the method of appointment; chose to adopt the dictum laid down by the Apex Court in 1999(2) KLT 710 (SC) applying the ratio with reference to the “cadre strength”. The explanation offered by the Khadi Board appears to be very much plausible and sustainable. As such, the challenge raised, that too during the course of hearing (such contention having been raised only in the reply affidavit filed by the petitioners, and contrary to the specific assertion in Ground 'B' of the writ petition) seeking to apply the quota rule against the 'vacancies' and not against the 'cadre strength' is devoid of any merit and no interference is called for. W.P.(C) Nos.11332 & 33558 of 2005 and 18124 of 2006 -:15:- 12. However, there is a further case for the petitioners that even on applying the ratio to the 'cadre strength' which is admittedly fixed as '36', the prescribed ratio ear-marked to the direct recruits is not actually allotted to them. It is also stated that the break up figures furnished by the Khadi Board as to the number of direct recruits appointed is inclusive of the persons who were given appointment from the earlier rank list as well as those also who got subsequent promotion from the post of Junior Co-operative Inspectors as Senior Co-operative Inspectors and hence that it does not represent the existing strength/representation. 13. In fact, the actual position as on today with regard to the exact number of direct recruits, out of the total cadre strength of 36, is not discernible from the proceedings/statements filed by the Khadi Board. The learned counsel for the Khadi Board submits that the present strength of direct recruits in the post of Junior Co- W.P.(C) Nos.11332 & 33558 of 2005 and 18124 of 2006 -:16:- operative Inspectors can be ascertained only after verifying the data available with the Khadi Board. 14. In the above circumstances, while sustaining the action pursued by the Khadi Board in applying the ratio against the “cadre strength”, they are hereby directed to consider the actual number of direct recruits serving the Khadi Board as Junior Co-operative Inspectors and if it is less than '22' (stated as allocable for Direct Recruitment), the requisite deficit to make it '22' shall be intimated by the second respondent Khadi Board to the third respondent PSC within a period of one month from the date of receipt of a copy of this judgment. On such an event, the third respondent PSC shall advise such number of candidates from the rank list with regard to the post of Junior Co- operative Inspector in respect of which '5' vacancies were already reported before its expiry on 5-10-2006, pursuant to the interim order dated 15-9-2006 passed by this Court in W.P.(C) No.11332 of 2005. Only such extent of vacancies W.P.(C) Nos.11332 & 33558 of 2005 and 18124 of 2006 -:17:- will be treated as 'validly reported' to the PSC before the expiry of the rank list. On receipt of such advice, the second respondent Khadi Board will be bound to revert such number of promotees occupying such slots of the Direct Recruits and who are occupying the lowest position in the ladder. Necessary orders in this regard shall be passed giving finality to the matter, as expeditiously as possible and at any rate, within a period of two months from the date of receipt of a copy of this judgment. All the Writ Petitions are disposed of as above. No costs. P.R.RAMACHANDRA MENON, JUDGE. skr