IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 19TH AUGUST 2011 / 28TH SRAVANA 1933 WP(C).No. 21381 of 2006(U) -------------------------- PETITIONER : --------------------- SAMRAJ P., OVERSEER - FIRST GRADE, PUBLIC WORKS DEPARTMENT (ELECTRICAL WING), OFFICE OF THE CHIEF ENGINEER (BUILDINGS AND LOCAL WORKS), THIRUVANANTHAPURAM-695 033. BY ADVS. SRI.B.RAGUNATHAN SRI.V.V.MATHEW RESPONDENT(S): -------------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, PUBLIC WORKS DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2. CHIEF ENGINEER (ADMINISTRATION), PUBLIC WORKS DEPARTMENT, THIRUVANANTHAPURAM-695 033. 3. KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY SECRETARY, KERALA PUBLIC SERVICE COMMISSION, PATTOM, THIRUVANANTHAPURAM-695 004. 4. SHRI. D.S.SHYAMKUMAR, OVERSEER - FIRST GRADE, PWD ELECTRICAL DIVISION, NEAR PMG OFFICE, THIRUVANANTHAPURAM-695 033. R1 & R2 BY GOVT. PLEADER SRI. ANTONY MUKKATH R3 BY ADV. SRI. P.C. SASIDHARAN, SC R4 BY ADVS. SRI.D.KISHORE SRI.K.R.B.KAIMAL, SENIOR ADVOCATE SRI.B.UNNIKRISHNA KAIMAL SRI.V.MADHUSUDHANAN SRI.ANIL K.NAIR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/08/2011, ALONG WITH WPC NO. 25988 OF 2006 & WPC NO. 20342 OF 2008 THE COURT ON 19/8/2011 DELIVERED THE FOLLOWING: Mn ...2/- WP(C).No. 21381 of 2006(U) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF THE CERTIFICATE DT. 21.8.04 ISSUED BY THE UNIVERSITY OF KERALA. EXT.P2 : COPY OF THE PSC BULLETIN DT. 15.5.06. EXT.P3 : COPY OF THE SERVICE CERTIFICATE DT. 20.6.06 ISSUED BY THE 2ND RESPONDENT. EXT.P4 : COPY OF THE RECEIPT DT. 20.6.06 ISSUED BY THE 2ND RESPONDENT. EXT.P5 : COPY OF G.O.(RT) NO. 430/06/PWD DT. 16.6.06. EXT.P6 : COPY OF THE ORDER DT. 6.10.2004 IN WP(C) NO. 27556 OF 2004 -E. EXT.P7 : COPY OF THE STATEMENT OF SELF FINANCING COLLEGES UNDER THE ANNA UNIVERSITY (RELEVANT PORTION). RESPONDENT'S EXHIBITS: EXT.R4(a) : COPY OF THE ORDER NO. ECI-74994/90 DATED 25.4.2005 OF THE CHIEF ENGINEER PWD. ADMN. EXT.R4(b) : COPY OF THE NOTIFICATION ISSUED BY THE PSC. EXT.R4(c) : COPY OF THE MEMO NO. GRIC(3)11765/05/DATED 21-2-2007 ISSUED BY THE PSC TO THE APPLICANT. EXT.R4(d) COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN W.A. NO. 1011/04 DATED 13-6-2005. EXT.R4(e) COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WP(C) NO. 24527/04 DATED 25-10-2006. EXT.R4(f) COPY OF NOTIFICATION SHORT LIST NO. 18/2008/ERVIIA/952/07/EW DATED 28-2-2008 ISSUED BY THE PSC. EXT.R4(g) COPY OF NOTIFICATION NO. ERVIIA/952/07/EW DATED 29-4-2008 ISSUED BY THE 4TH RESPONDENT. EXT.R4(h) COPY OF THE MEMO NO. GRIC (3)11765/05/GW DATED 25-4-2008 ISSUED BY THE 4TH RESPONDENT TO THE APPLICANT. //TRUE COPY// P.S. TO JUDGE Mn S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W.P(C) Nos. 21381 & 25988 of 2006 and W.P(C) No. 20342 of 2008 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 19th day of August, 2011. J U D G M E N T These three writ petitions relate to the selection to the post of Assistant Engineer (Electrical) in the Public Works Department of the Government of Kerala by direct recruitment from among First and Second Grade Overseers/Draftsman (Electrical) and Clerks in the quota set apart for them as per Note-2 Rule 3(3) of the Kerala Engineering Service (Radio and Electrical Branches) Rules. In W.P(C) Nos. 25988 and 21381 of 2006, the petitioners are challenging the selection of the 4th respondent by granting exemption to him from the service qualification of two years as First and Second Grade Draftsman/Overseer in the Electrical wing of the Public Works Department prescribed under the said Rule in exercise of powers of the Government under Rule 39 of tie Kerala State and Subordinate Service Rules. The other writ petition is filed by the petitioner in W.P(C) No. 25988/96 challenging her exclusion from the short list on the ground that she did not secure the minimum cut off marks in the written test and also challenging the inclusion of the 4th respondent on the ground that he is not eligible to be considered for the post. Although W.P(C) No. 20342/2008 has to be considered separately from the other two, all the three are being heard together and disposed of by this common judgment, since in both the same selection is involved. W.P(C) Nos. 21381 & 25988 of 2006 & W.P(C) No. 20342 of 2008 -: 2 :- W.P(C) Nos. 25988 & 21381 of 2006. 2. Rule 2(a)(3) of Branch II-Electrical of the Kerala Engg. Service (Radio and Electrical Branches) Rules prescribes the method of appointment to the post of Assistant Engineer (Electrical) thus: “2. Appointment (a) - Appointment to the two categories shall be made as follows: Category Method of appointment 1. xx xx 2 xx xx 3. Assistant Engineer 1. By direct recruitment. ( Electrical) 2. By transfer from category of Overseer/Draftsman Grade I and Overseer (Generator Mechanic) in the Kerala Engineering Subordinate Service (Electrical Branch).” The qualifications for the post are prescribed in Rule 3(3) thereof thus: 3. Qualifications - No person shall be eligible for appointment to the category mentioned in column (1) of the table below unless he possesses the qualification prescribed in the corresponding entry in column (2) thereof. Category Qualifications (1) (2) 1. xx xx 2. xx xx 3 “Assistant Engineer (Electrical) 1. Direct Recruitment:- Degree in Electrical Engineering of the Kerala University or other qualifications recognised as equivalent thereto. W.P(C) Nos. 21381 & 25988 of 2006 & W.P(C) No. 20342 of 2008 -: 3 :- 2. Recruitment by transfer:- (i) Degree in Electrical Engineering of a recognised University or equivalent qualification; Or (ii) Diploma in electrical Engineering awarded by the Director of Technical Education, Kerala or equivalent qualification with a total service of three years of which two years shall be as I Grade Overseer; Or (iii) Minimum educational qualification of S.S.L.C or equivalent and certificate in Electrical Engineering after undergoing a course of two years in an Institution recognised by Government and a total service of 10 years of which 2 years should be First Grade Overseer. Note 1.- 25% of the posts in category 3 shall be filled up by direct recruitment and the rest 75% recruitment by transfer from Overseer/Draftsman Grade I in the ratio of 3:2 as between Diploma holders and Certificate holders provided that no Senior Diploma Holder is superseded by a Junior Certificate holder. Note 2.- Subject to the provision of Note 1, in making appointment to the post of Assistant Engineer by direct recruitment, appointment to one post out of five shall be made by direct recruitment from among First and Second Grade Overseers/Draftsman (Electrical) and Clerks in Public Works Department of the Government of Kerala, provided-- (i) that they possess a Degree in Electrical Engineering of the Kerala University or its equivalent or a pass in Section A and B of A.M.I.E (India) in Electrical Engineering and that in the case of First Grade/Second Grade Draftsman/Overseer W.P(C) Nos. 21381 & 25988 of 2006 & W.P(C) No. 20342 of 2008 -: 4 :- (Electrical) they should have rendered a minimum service of two years as First or Second Grade Draftsman/Overseer (Electrical) in the Electrical Wing of the Public Works Department and in the case of Clerks a minimum period of service of six years as Clerks in the Public Works Department, and (ii) that if at any time, qualified candidates are not available from among those in the service of Government as laid down above, appointment to the vacancies in the quota shall be made by direct recruitment of candidates from the open market. Note 3.- The candidate for direct recruitment from service, in the above mentioned quota, shall be exempted from the upper age limit fixed for direct recruitment to the category. Note.- For candidates belonging to Scheduled Caste and Scheduled Tribes, the requirement of experience wherever prescribed for direct recruitment shall not be insisted upon. Such candidates shall be given training for six months during the period of probation after appointment to the posts.” (Underlining supplied) 3. By notification dated 11.5.206 (Ext.P1 in 25988/2006), the Public Service Commission invited applications for selection to the said post. The last date for submission of application was 21.6.2006. 28 persons applied. The 4th respondent did not possess the service qualification of 2 years as First or Second Grade Draftsman/Overseer(Electrical) in the Electrical Wing of the PWD, he having entered service as Overseer Grade I (Electrical) through Public Service Commission only on 28.4.2005. He filed a representation dated 23.5.2006 before the Government seeking exemption from the service qualification, which was forwarded to the Government by the 2nd respondent recommending grant of exemption and by Ext.P2 order dated 16.6.2006, the Government granted W.P(C) Nos. 21381 & 25988 of 2006 & W.P(C) No. 20342 of 2008 -: 5 :- exemption to the 4th respondent from the requirement of 2 years' service as 1st or 2nd Grade Draftsman/Overseer (Electrical). Out of the 28 applicants only 4 were found possessing the required qualifications, including the 4th respondent on the strength of the exemption granted by the Government. There were only 2 vacancies. The petitioners are challenging the order (Ext.P2 in W.P(C) No. 25988/2006, which is the same as Ext.P5 in W.P(C) No. 21381/2006) of the Government granting exemption to the 4th respondent from the requirement of service qualification of two years and his consequent consideration for selection. 4. The contention of the petitioners is that there was no circumstances warranting exercise of powers under Rule 39 of the K.S and S.S.R by the Government to grant exemption to the 4th respondent from the required service qualification as per the Special Rules, which powers have to be used by the Government only sparingly, for very compelling reasons. According to them, the petitioners had 12 and 10 years' service respectively as Overseers, whereas the 4th respondent had only less than one year's service. There was sufficient senior candidates available for consideration for the two vacancies. The 4th respondent did not have any special qualifications or experience warranting his consideration granting exemption, they submit. Their contention is that the only reason stated in the impugned order is that he had 3 years and 8 months' service as Lecturer in an Engineering College under Anna University. W.P(C) Nos. 21381 & 25988 of 2006 & W.P(C) No. 20342 of 2008 -: 6 :- They would point out that the 4th respondent's teaching experience is not under Anna University, but only from a self-financing college affiliated to that University, the veracity of which certificate is very much in doubt and the Government has granted the exemption without verifying the genuineness of the certificate, hastily without applying mind. They would also point out that experience as lecturer in an engineering college is not comparable to the service as Overseer (Electrical) of P.W.D and the Government was not right in granting exemption on that sole ground. They would further contend that the Government cannot in exercise of Rule 39 of the K.S. and S.S.R grant relaxation from the basic qualifications prescribed. They rely on the Division Bench decision of this Court in Koyit Joseph and others v. Subash George and others, ILR 2006(3) Kerala 162 and that of the Supreme Court in Suraj Parkash Gupta and others v. State of Jammu & Kashmir and others (2000) 7 SCC 561. 5. The respondents support the impugned order justifying the exercise of power by the Government under Rule 39 of the K.S and S.S.R with the help of Ext.R4(d) (reported as K.P.S.C. v. Tessymole Sebastian and another, ILR 2005(3) Kerala 486) and Ext. R4(e) judgments of two Division Benches of this Court, wherein such relaxation granted was upheld. 6. The petitioners would try to distinguish those decisions on facts on the ground that the circumstances are W.P(C) Nos. 21381 & 25988 of 2006 & W.P(C) No. 20342 of 2008 -: 7 :- different, particularly since in those cases, there was no challenge to the exemption granted in those cases, whereas in this case, the very order granting exemption is under challenge. 7. I have considered the rival contentions in detail. 8. Rule 39 of the K.S and S.S.R reads thus: “39. Notwithstanding anything contained in these rules or in the Special Rules or in any other Rules or Government Orders the Government shall have power to deal with the case of any person or persons serving in a civil capacity under the Government of Kerala or any candidate for appointment to a service in such manner as may appear to the Government to be just and equitable: Provided that where such rules or orders are applicable to the case of any person or persons, the case shall not be dealt with in any manner less favourable to him or them than that provided by those rules or orders. This amendment shall be deemed to have come into force with effect from 17th December 1958.” The constitutional validity of that Rule was considered by a Full Bench of this Court as early as in 1973, in the decision of Sreedharan Pillai v. State of Kerala, 1973 KLT 151 (FB), wherein the Full Bench has laid down the scope and ambit of that rule in the last part of paragraph 17 and paragraphs 18 to 21 thereof thus: “17. xx xx xx The above observations of the Supreme Court lend full support to our view that a rule cannot be validly framed under the proviso to Art.309 conferring an arbitrary discretion on the State Government or any other authority to totally ignore the existing rules governing any aspect of the W.P(C) Nos. 21381 & 25988 of 2006 & W.P(C) No. 20342 of 2008 -: 8 :- service conditions and to mete out special treatment to any particular officer or groups of officers in such a way as to totally nullify the operation and effectiveness of the rules. Hence, if R.39 is to be valid it has to be interpreted in such a manner as would reader its provisions consistent with the above legal position. If, as laid down by the Supreme Court in the decision above cited, an action taken in contravention of the existing rules cannot be validated by making a special rule for that purpose under the proviso to Art.305, it is equally clear that no such action can be authorised to be done by any special provision made in that behalf under the proviso to Art.309, such as R.39 of the Kerala State and Subordinate Services Rules; much less can it be done by an executive order passed pursuant to the power conferred by such a rule. 18. R.1 to 38 contained in Part I of the Kerala State and Subordinate Services Rules 1958, the Government as on the officers in its service. While framing those rules in would appear to have been, however, recognised by the rule making authority that instances may sometimes occur where a strict and rigorous application of the aforementioned rules may result in manifest injustice or inequity and it is only to deal with such an extraordinary situation that the power has been conferred under R.39. It goes without saying that the said power is to be sparingly exercised and its use must be restricted to cases of a very exceptional nature. If due regard he had to the real nature and purpose of the power as explained above, there can be no difficulty in seeing that it can be exercised only in those individual cases where the authority finds that on account of special circumstances a separate or differential treatment is justified and that such action is necessary in order to mete out justice and equity. The actual exercise of the power must therefore be preceded by a careful application of the mind of the authority to all the relevant facts and circumstances and a satisfaction being arrived at by it to the effect indicated above. In this context it is necessary to remember that the service rules framed under the proviso to Art.309 most ordinarily be taken to be in perfect conformity with accepted notions of justice and equity.’ It could not, therefore, have been the intention of the rule-making authority in framing R.39 that the power conferred by the said rule is to be utilised whenever it is found that the enforcement of any particular service rule results in some hardship to any officer or groups of officers. The remedy for such a situation, if it is found to exist, will be only to amend the offending rule and the power under R.39 W.P(C) Nos. 21381 & 25988 of 2006 & W.P(C) No. 20342 of 2008 -: 9 :- cannot be resorted to as an easy substitute. 19. We have already pointed out that it is not the purpose of R.39 to empower the authority designated in it to arbitrarily deal out special treatment to any officer or officers according to its sweet will and pleasure by passing orders in direct contravention of any of the Rules Nos. 1 to 38. The non obstante clause occurring in R.39 cannot be construed as enabling the authority designated in the Rule to nullify by an executive order the provisions contained in the remaining rules. The expression ‘notwithstanding anything contained in these rules’ occurs in various other rules contained in Part II also for example,see R.3(c), R.9(c), R.9(d), R.13AA. R.17A, R.30, R.35(f) and R.37. An examination of the context in which these ((identical words have been used in the other rules reveals that the object underlying the incorporation of the non obstante clause is only to declare that in regard to the particular topic dealt with in the concerned rule, where the clause occurs, the provisions of the said rule shall prevail, notwithstanding anything to the contrary contained in any of the other rules contained in Part II or in the special rules. In other words, the intention is not that the particular rule where the clause occurs will override the provisions of all the remaining rules in respect of all matters; it only means that for the limited purpose of effectuating the provision of that particular rule in relation to its subject-matter the other rules would not stand in the way. In our view, it is this restricted interpretation that is to be given to the non obstante clause occurring in R.39 also and it will not be correct to understand the said rule as giving a carte blanche to the authority named in it to cast to the winds the provisions contained in the general or special rules and in dealing with the cases of any set of officers. As pointed out by the Supreme Court in S. G. Jaisinghani v. Union of India & Others (AIR. 1967 S. C. 1427), “the absence of arbitrary power is the first essential of the rule of law upon which our whole constitutional system is based. In a system governed by rule of law, discretion, when conferred upon executive authorities, must be confined within clearly defined limits. The rule of law from this point of view means that decisions should be made by the application of known principles and rules and, in general, such decisions should be predictable and citizen should know where he is.” 20. Ordinarily, therefore, it is not expected that the power under R.39 should be resorted to merely for the purpose of getting round the provision contained in any of the general rules or special rules. R.39 is to be invoked only to W.P(C) Nos. 21381 & 25988 of 2006 & W.P(C) No. 20342 of 2008 -: 10 :- meet exceptional situations where gross injustice or inequity is seen to result from the application of the rules in all their rigour. In such cases and such cases alone, R.39 empowers the designated authority to mete out equity and justice by passing appropriate orders in relaxation of the provisions of the rules concerned. 21. We may now summarise the conclusions that emerge from the preceding discussion. We hold that R.39 is valid and that it does not suffer from the vice of arbitrariness or excessive delegation. We are of the view that the said Rule does not warrant the passing of any general order with respect to any undefined or large group of persons exempting them from the operation of any existing rule or granting a relaxation of the rules in favour of such a group. The rule only authorises the authority designated therein to deal with any specific case or cases of individual officers and to pass orders in a just and equitable manner after a full application of the mind of the authority to all the relevant facts and circumstances necessary for a proper determination of the question as to what would constitute justice and equity. In exercising this power it is open to the authority to relax the rigour of the rules to such extent as may be necessary to ensure justice and equity, but it cannot completely nullify the operation and effectiveness of the rules in the guise of relaxing their rigour. If, however, special circumstances do exist warranting a valid classification of the particular case or cases it will also be open to the authority exercising the power under R.39 to accord a special treatment in respect of such exceptional cases even by exempting the person or persons concerned from the operation of any particular rule. In saying this we consider it necessary to emphasise that such a course will be permissible only in those rare cases where very strong grounds exist justifying a valid classification of the cases of the officers in question for the purposes of Art.14 and 16 of the Constitution. In determining what is ‘just and equitable’ the authority should take into account the overall effect that the proposed order would have in relation not merely to the particular officers whose cases are specifically dealt with by it but also to all others belonging to the same service, category or class. The mere fact that the enforcement of a rule creates hardship to an officer or a group of officers will be no ground for invoking the power under R.39, because it must be assumed that the possibility of the causation of any such hardship must have been duly taken into account at the time when the rule in W.P(C) Nos. 21381 & 25988 of 2006 & W.P(C) No. 20342 of 2008 -: 11 :- question was made and the rule-making authority has nevertheless thought it fit to enact such a provision. (Underlining supplied) The Full Bench further held thus in paragraphs 25 and 26 thus: “25. The possibility of the proposed order having an adverse effect on the rights of other employees is, however, a matter vitally relevant for determining whether the course of action proposed would be ‘just and equitable”. It is mandatory on the part of the authority exercising the power under R.39 to apply its mind to this important aspect also before taking a final decision to invoke R.39 in each specific case, because it will not be “just or equitable” if for the purpose of relieving some genuine hardship that may exist in the case of an individual officer, undue prejudice or hardship is caused to others. 26. We have already made it clear that R.39 cannot be regarded as conferring an arbitrary power to ignore the existing service rules and to deal with cases of any officer or officers in violation of the existing rules. Its main purpose, as we see it, is to invest the authority designated in it with the power to relax the rigour of the rule in regard to matters that are merely procedural or incidental in nature and which do not go to the root of any of the substantive service conditions dealt with in the rules. We have also indicated that in rare and exceptional cases where there are valid grounds for a reasonable classification, it is permissible under R.39 to accord a special treatment by granting a partial or even total relaxation of a substantive provision contained in the rules.” (Underlining supplied) 9. After referring to the Full Bench decision, a Division Bench of this Court held thus in paragraph 23 of Koyit Joseph's case (supra) thus: W.P(C) Nos. 21381 & 25988 of 2006 & W.P(C) No. 20342 of 2008 -: 12 :- “We have to understand