IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 10TH FEBRUARY 2010 / 21ST MAGHA 1931 WA.No. 2745 of 2009() --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.5048/2008 Dated 02/11/2009 .................... APPELLANT(S): 4TH RESPONDENT ---------------------------- T.K.KARUNADAS, TECHNICAL ASSISTANT, INFORMATION CENTRE, KERALA ARCHAEOLOGY DEPARTMENT, EAST FORT P.O., THIRUVANANTHAPURAM-23. BY ADV. SRI.ELVIN PETER P.J. SMT.POOJA SURENDRAN RESPONDENT(S): PETITIONERS -------------------------- 1. K.R.SONA, FIELD ASSISTANT, SAKTHAN THAMPURAM PALACE, ARCHAEOLIOGICAL MUSEUM, THRISSUR-20. 2. STATE OF KERALA, REP. BY ITS SECRETARY TO GOVERNMENT, CULTURAL AFFAIRS DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM. 3. THE DIRECTOR OF ARCHAEOLOGY, DIRECTORATE OF ARCHAEOLOGY, SREEPADAM PALACE, NEAR FORT POST OFFICE, THIRUVANANTHAPURAM-23. 4. K.R.SHYLENDRANATH, TECHNICAL ASSISTANT, KOTTARAKKARA THAMPURAN MUSEUM OF CLASSICAL ARTS, KOTTARAKKARA, KOLLAM DISTRICT. ADV. SRI.O.V.RADHAKRISHNAN, SENIOR ADVOCATE FOR R1 SRI.N.D.PREMACHANDRAN FOR R1 GOVT.PLEADER SRI.BENNY GERVASIS ADV.SRI.MOHAMMED NIYAZ FOR R4. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 10/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.R. K.BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ. ---------------------------------------------- W.A. No.2745 of 2009 ---------------------------------------------- Dated 10th February, 2010. J U D G M E N T Balakrishnan Nair, J. The 4th respondent in the writ petition is the appellant. The writ petitioner is the first respondent herein. 2. The brief facts of the case are the following: The first respondent joined the Archaeology Department, as Museum Assistant, on 28.11.1986. In due course, her probation was declared. The Special Rules(Recruitment Rules) governing qualifications and method of appointment to the posts in the said Department, both in the State Service and the Subordinate Service, were issued by the Government on 3.1.2000, as per G.O.(P) No.3/2000/CAD and G.O.(P) No.2/2000/CAD, respectively. (State service covers gazetted posts and Subordinate service covers non-gazetted posts in the department) As per the Special Rules, the post of Museum Assistant is a feeder category for promotion to the post of Manager, which is category No.8 in the Special Rules for the Kerala Archaeological Subordinate Service. WA NO.2745/09 2 The next higher posts are Research Assistant (Folklore) and Research Assistant (Numismatics). The method of appointment to these posts is by direct recruitment. Category No.2, Field Assistant(Malabar Survey) is the promotion post of Manager. The post of Field Assistant (Malabar Survey) is a feeder category for appointment by transfer to the posts of Epigraphy Assistant/Excavation Assistant/Curator. While those rules were enforced, the promotions in the department were reviewed. After the issuance of the Special Rules in 1974, several new posts were created in the department. Pending issuance of Special Rules covering them, they were being filled up on temporary/provisional/ad-hoc basis. When the new Special Rules were issued on 3.1.2000, covering them also, it became necessary that the appointments made to those posts have to be reviewed. 3. Purportedly, as part of the review, by Ext.P9, the first respondent/writ petitioner, who was working as Museum Assistant, was promoted provisionally as Field Assistant (Malabar Survey). But, the method of appointment to that post, as per the WA NO.2745/09 3 Special Rules, is by promotion from the post of Manager. One of the obligatory qualifications for promotion to the post of Field Assistant (Malabar Survey), is three years' experience in the post of Manager. In Ext.P9, it is stated by the Director that since the first respondent has been found eligible for promotion as Manager with retrospective effect, she has been provisionally promoted as Field Assistant (Malabar Survey). A translation of the relevant portion of the said order reads as follows : “In the light of the judgment of the Honourable High Court referred as first paper and the directions issued by the Government as per letter referred as third paper, the promotions made in the Department of Archeology to non- gazetted technical posts have to be reviewed. As part of the third stage of the review proceedings being undertaken by a review committee constituted as per the directions of the Director referred as 6th paper, it was found that Smt.K.R.Sona, who is working as Museum Assistant (Higher Grade) in Thrissur Archaeological Museum, is eligible for promotion to the post of Manager, in the scale of pay of Rs.5000-8150 with retrospective effect; therefore, she is found eligible for promotion to the next higher post. In the circumstances, Smt.K.R.Sona, who is working as Museum Assistant in Thrissur Archaeological Museum is provisionally appointed to the post of Field Assistant (Malabar Survey), which was shifted to Kozhikode Pazhassiraja WA NO.2745/09 4 Museum and which is becoming vacant, as per order referred as 7th paper above.” The judgment of this Court mentioned in the above order only directs review of provisional promotions made earlier, in the light of the new Special Rules issued. As evident from the above quoted order, the first respondent, working as a Museum Assistant, was directly promoted as Field Assistant (Malabar Survey) by-passing the intermediate post of Manager. Later, her probation was declared in the post of Field Assistant (Malabar Survey), as per Annexure R1(a) dated 22.1.2008, with effect from 24.10.2004, though she was only a provisional promotee in that post. Thereafter, she was included in the select list for promotion to the post of Excavation Assistant/Curator. Later, she was provisionally promoted as Curator, as per Annexure A1, produced along with the Appeal Memorandum. Still later, she was included in the Departmental Promotion Committee (for short, 'DPC') list dated 24.9.2009, as a person eligible for promotion to the post of Excavation Assistant/Curator. Ext.R1(b) is the DPC list. In the meantime, the Writ Petition was filed by WA NO.2745/09 5 the first respondent, seeking the following reliefs : (i) “To issue a writ of mandamus or other appropriate writ, order or direction directing the respondents 1 and 2 to promote the petitioner to the next arising vacancy of Curator/Excavation Assistant, before promoting respondents 3 and 4. (ii) to declare that the action of the 2nd respondent in promoting respondents 3 and 4 as Research Assistant, Field Assistant and Technical Assistant, as illegal, irregular and arbitrary and is in violation of the provisions in the special rules. (iii) To declare that the action of the 2nd respondent in declaring the probation of the 4th respondent in the post of Technical Assistant as illegal and unsustainable. (iv) to issue a writ of certiorari or other appropriate writ, order or direction to quash the appointment of 4th respondent as Research Assistant (Numismatics) and his further appointment/promotion from the post of Research Assistant as Technical Assistant.” 4. The appellant/4th respondent joined service as Lower Division Clerk on 2.5.1989. He completed his probation in that post. When a vacancy arose in the post of Research Assistant (Numismatics), the Director invited applications from the existing employees and thereafter, appointed the appellant provisionally to that post, by Ext.P13 order dated 12.6.2003. Later, he was promoted to the post of Technical Assistant, provisionally on 25.7.2006, under Rule 9(a)(i) of Part II of the Kerala State and Subordinate Services Rules (for short, 'KS & WA NO.2745/09 6 SSR'). His probation was also declared in the post of Technical Assistant. 5. The 4th respondent in the Writ Appeal joined service as Lower Division Clerk on 25.7.1980. He was later promoted to the post of Gallery Supervisor and further, as Manager in the year 1989. Thereafter, he was promoted to the post of Research Assistant. All the above promotions were provisional and were made before the implementation of the Special Rules. Later, at the time of review, the 4th respondent was promoted as Field Assistant (Malabar Survey), on 12.1.2005, as per Ext.P11 order. He was further promoted as Technical Assistant and thereafter, as Excavation Assistant, under Rule 9(a)(i) of Part II of the KS & SSR. He was also included in the select list for promotion to the post of Excavation Assistant/Curator, published by the lower DPC. 6. The first respondent/writ petitioner approached this Court, apprehending that the appellant and the 4th respondent herein may supersede her, in the matter of promotion to the post of Curator. At the time of hearing, she pressed her claim only against the appellant. The learned Single Judge found that the WA NO.2745/09 7 promotion granted to the appellant as per Ext.P13 was illegal and therefore, quashed Ext.P13. The appellant tried to canvass for the position that the promotion of the first respondent covered by Ext.P9 was also not different and therefore, she had no locus standi to raise this challenge. But, the learned Judge did not accept that contention and declined to look into the validity of Ext.P9. Feeling aggrieved by the quashing of Ext.P13, the appellant has preferred this Writ Appeal. 7. We heard Sri.Elvin Peter, learned counsel, who appeared for the appellant, Sri.Benny Gervasis, learned Senior Government Pleader for the official respondents and Sri.O.V.Radhakrishnan, learned senior counsel, who appeared for the first respondent. 8. When the Writ Appeal was heard on 11.1.2010, noticing the fact that various promotions were made in the department, in violation of the Special Rules, the following interim order was passed by this Court: Certain distressing facts were revealed when this Writ Appeal was heard by us. The facts brought to our notice show that promotions are being ordered under the Directorate of Archaeology without any reference to the Special Rules and qualifications and WA NO.2745/09 8 method of appointment prescribed therein. We notice that the writ petitioner/first respondent herein has been provisionally promoted as Field Assistant from the post of Museum Assistant by Ext.P9, without reference to the Special Rules. Now, she has been further provisionally promoted as Curator, as is evident from Annexure A1. The Special Rules available do not justify such promotions. The same is the case of promotion of the appellant who was the 4th respondent in the Writ Petition. He has been provisionally promoted as Research Assistant (Numismatics). It was not a post available under the earlier Special Rules which were framed in 1974. As per Ext.P7 Special Rules which were framed in 2000, the appellant is not eligible for promotion to that post. The post held by him is not included in the feeder category, but still, he has been provisionally promoted as Research Assistant (Numismatics). We are told that he has been further promoted as Technical Assistant on 25.7.2006, which is also not permissible in terms of the Special Rules. We are surprised to hear that the probation of the writ petitioner/first respondent has been declared in the post of Field Assistant. We are shocked to hear that the probation of the appellant has also been declared in the post of Research Assistant (Numismatics). The promotions are ordered without any regard to Rule 28 of the Kerala State and Subordinate Services Rules. Both sides also submit that similar illegal promotions were granted to one K.R. Shylendranath, the third respondent in the Writ Petition who is the 4th respondent in the Writ Appeal. A provisional appointee cannot be treated as a probationer and his probation cannot be declared. Only an approved probationer can be regularly promoted. We find these principles are thrown to the winds. 2. We think that there is something wrong with the person or persons making these promotions and declaration of probation. So, the second respondent is directed to file an affidavit explaining as to how the aforementioned promotions and declaration of probation happened in disregard of Rule 28 of the General Rules and the relevant provisions of Ext.P7 Special Rules, on or before 27.1.2010. If the second respondent feels that the above actions are illegal, it shall state the steps proposed to rectify this jungle raj. If the second respondent does not file the affidavit, as directed above, the Secretary, Cultural Affairs Department of the State of Kerala shall appear in person before this Court with the relevant files on 29.1.2010 and explain the issue directly to this Court. Post on 27.1.2010.” WA NO.2745/09 9 Pursuant to the above order, the second respondent has filed a counter affidavit, admitting the illegalities in the promotions granted to the appellant, first respondent and the 4th respondent. Regarding the promotions granted to the appellant, it was stated in paragraphs 5 and 6 as follows : “5. The promotions/appointments granted to the appellant as well as the first and 4th respondent would come within the above category of promotions which were granted in violation of the special rules of 2000. In so far as the appellant T.K.Karunadas was concerned, he entered service of the Directorate of Archeology as LDC on 02.05.1989 and successfully completed his probation in the above post. A vacancy in the post of Research Assistant (Numismatics) which was created in 1979 occurred on 01.10.1996 and since the above post was not included in the special rules a draft rule had been prepared incorporating the qualifications and mode of appointment to the above post and also bringing out variation/amendment to the above rules. Government was moved for approval to fill up the above vacancy and to decide as to the method of appointment to be resorted to. Government as per its communication dated 25.4.2003 directed the Director to make a provisional appointment against the above post from among the existing employees after calling for applications in this regard. The above appointment was to be provisional till the appointment of regular qualified hand. Pursuant to the same, it is understood that the Director issued a circular dated 19.5.2003 inviting applications from the existing employees for appointment to the post of Research Assistant (Numismatics). It was pursuant to the above circular and on the basis of application received from the appellant that the appellant was appointed provisionally to the post of Research Assistant (Numismatics) by the order dated 12.6.2003. The above appointment was purely provisional and under Rule 9(a)(i) of KS and SSR. It was also mentioned in the appointment order that the above appointment was for a period until a regular hand fully qualified as per the Special Rules was appointed. In the meanwhile the special rule was duly issued as per G.O.(P) No.2/2000 and the mode of recruitment to the post of WA NO.2745/09 10 Research Assistant (Numismatics) as per the same was direct recruitment alone. 6. The Direction that had been issued by the Government was to make a provisional appointment till direct recruitment was resorted to for filling up the above post. The post was duly reported to the Public Service Commission for recruitment, however during the process of filling up the above post by direct recruitment a vacancy occurred in the post of Technical Assistant and the appellant put forward a claim to the above post. It is understood that the 3rd respondent without considering the fact that the appellant had been appointed to the post of Research Assistant (Numismatics) only provisionally under rule 9(a)(i) promoted him to the post of Technical Assistant by order dated 25.7.2006 on the ground that the post of Research Assistant was included in the feeder category for promotion to Technical Assistant. The above promotion granted in violation of the rules has been granted again under Rule 9(a)(i) of KS & SSR.” Concerning the promotions granted to the first respondent, it was stated in paragraphs 7 to 9 as follows : “7. As regards the first respondent/writ petitioner Smt.Sona, entered service as Museum Assistant on 28.11.1986 and probation was also declared in the above post. As per 1974 Subordinate Service Rules the post of Museum Assistant was a feeder category for promotion to the post of Curator. Thereafter, several new category of posts such as Technical Assistant, Field Assistant, Research Assistant, Assistant Editor, Documentation Assistant, Manager, etc. were created and no rules or orders were issued laying down the qualifications or mode of appointment to the above post. The post of Manager and Field Assistant were created as intermediary post between Curator and Museum Assistant. Though draft rules were prepared the final rules were issued only as per G.O.(P)No.2/2000 which dealt with the Subordinate Service of Archeology Department that is Kerala Archaeological Subordinate Service Rules. As per the above rule which was issued on 03.01.2000 the post of Curator was taken out of the purview of Subordinate Service Rules and included in the State service rules which was issued as per G.O. (P)No.3/2000 dated 3.1.2000. The appointment to the above WA NO.2745/09 11 post was to be transfer from the category of Field Assistant Folklore/Field Assistant (Malabar Survey) and Technical Assistant and in the absence of qualified hands the same was to be filled up by direct recruitment. The qualifications prescribed for the post was post graduate degree in History/Malayalam/Sanskrit/ Archeology/Museology or any other equivalent qualifications from a recognized University. It was also specified that persons appointed to any of the categories coming within the special rules had to pass either the Account test for Executive officers or the Accountant Test (Lower) within the period of probation. 8. The post of Curator was made a selection post as per the Special Rules for subordinate service. Further promotion from the post of Museum Assistant was to the post of Manager and from the Manager post to the post of Field Assistant/Technical Assistant. The post of Field Assistant/Technical Assistant alone were included in the feeder category for selection/appointment to the post of Curator. During the pendency of issuance of Special Rules some of the employees moved this Hon'ble Court in writ petition O.P.No.3692/1993 which was disposed of as per judgment dated 29.09.1998. The court as per the judgment directed that the rules should be formulated within six months and promotions should thereafter be effected as per the same. It was also directed to review the promotions already effected pending finalization of the rules. 9. After the issuance of Special Rules a review committee was constituted for reviewing the promotions made pending finalization of the Special Rules. After the issuance of Special Rules the first respondent was provisionally promoted to the post of Field Assistant (Malabar Survey) on 20.10.2003. The above promotion was granted without promoting her to the intermediary post of Manager. The above promotion was made on the ground that she was eligible for holding the post of Manager, but no actual promotion as Manager was granted to the first respondent. Moreover the Special Rules specifically stated that for promotion from the post of Manager to that of Field Assistant a minimum experience of 3 years was required in the post of Manager. The first respondent also did not have the above experience. Thereafter, probation was declared in the post of Field Assistant (Malabar Survey) to which she had been provisionally promoted and further promotion also granted as Curator provisionally on 19.11.2008. The above promotions WA NO.2745/09 12 granted to the first respondent as Field Assistant (Malabar Survey) and declaration of probation in the above post and the further promotion to the post of Curator are illegal and violative of the Special Rules.” Regarding the illegalities in the promotions granted to the 4th respondent, it was stated in paragraph 10 of the affidavit, as follows :- “10. The 4th respondent Sri.K.R.Shylendranath joined service in the Archeology Department as LDC on 25.7.1980. He was further promoted to the post of Gallery Supervisor on 17.12.1983 provisionally under rule 9(a)(i) of KS & SSR and further promoted to the post of Manager in the year 1989 again provisionally and from this post he was further promoted as Research Assistant. It is understood that the 4th respondent did not have graduation in the required subject and therefore was granted two years time for acquiring the graduation. All the above promotions were granted prior to 2000 that is before issuance of the special rules. All the above promotions were reviewed and duly approved by the review committee constituted as per the directions of this Honourable Court in O.P.No.3692/1993. The 4th respondent was thereafter promoted to the post of Field Assistant (Malabar Survey) on 12.1.2005 on which date 4th respondent was not having the due graduation qualification. He was further transferred and posted to the post of Technical Assistant and from the above post was granted promotion to the post of Excavation Assistant under Rule 9(a)(i) of KS & SSR on 19.11.2008. The above post is a selection post which is included in the State service. It is submitted that the promotions granted to the 4th respondent to the post of Field Assistant, Technical Assistant and Excavation Assistant are found to be violative of the Special Rules.” Finally, the second respondent indicated the course of action proposed, to remedy the illegalities in the promotions granted to the aforementioned persons and others in the following manner :- WA NO.2745/09 13 “11. As submitted herein, the above mentioned promotions/appointments to the various categories of posts in the Department are carried out by the Director of the Archeology Department and this respondent, it is respectfully submitted, was not aware that the same was being carried out in violation of the Special Rules. On being aware of the irregularities this respondent has issued directions to the 3rd respondent to review all the promotions that has been effected after the issuance of Special rules as per G.O.(P) No.2/2000 and 3/2000 dated 03.01.2000. It is also directed to report the appointments/promotions that has been effected if any, in violation of the Special Rules and to take appropriate action to cancel the above appointments/promotions with due notice to the affected persons. In respect of the appellant/ first respondent and the 4th respondent directions were already issued to review the promotions granted to them and to cancel the same after hearing them. Strict directions have also been issued to the third respondent to make further promotions to various posts under the Department only in strict conformity with the Special Rules and also to seek approval from the Government in the case of provisional promotion, if any. It is respectfully submitted that this respondent became aware of the irregular appointment/promotions granted in the Department only subsequent to the filing of the writ appeal and necessary curative actions/remedial measures have already been taken to rectify the same and also to see that further promotions/ appointments in the Directorate of Archeology are carried out only in conformity and compliance with the Special Rules.” 9. The first respondent has filed a counter affidavit, dealing with the averments in the above affidavit of the second respondent and trying to support her promotions. 10. We considered the rival submissions made at the Bar. We notice that persons who are not in the feeder category, as per the Special Rules/Recruitment Rules, have been granted WA NO.2745/09 14 promotion. Further, regular promotion can be ordered only of approved probationers, in view of the mandate of Rule 28(a)(i) of Part II of the KS & SSR. The said Rule reads as follows :- “28(a) Promotion--(i) Except in the case of appointment to the posts of Heads of Departments no member of a service or class of a service shall be eligible for promotion from the category in which he was appointed to the service unless he has satisfactorily completed his probation in that category.” A person will commence probation in a post, only on his regular appointment to the said post. Rule 18(a) of Part II of the KS & SSR deals with the above aspect. The said rule reads as follows :- “18.(a) Date of commencement of probation of persons first appointed temporarily.-- If a person, having been appointed temporarily under sub-rule (a) or sub-rule(c) of rule 9 to a post borne on the cadre of any service, class or category otherwise than in accordance with the rules governing appointment thereto, is subsequently appointed to the service, class or category in accordance with the rules, he shall commence his probation from the date of such subsequent appointment or from such earlier date as the appointing authority may determine, without prejudice to seniority of others.” Further, an appointee under Rule 9(a)(i) of Part II of the KS & SSR can never be treated as a probationer. Rule 9(a)(iv) is categoric on this aspect. Rules 9(a)(i) and 9(a)(iv) respectively read as follows :- “9. Temporary appointments.--(a) (i) Where it is necessary in the public interest, owing