IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 25TH JANUARY 2010 / 5TH MAGHA 1931 OP.No. 21605 of 1999(V) ----------------------- PETITIONER(S): --------------- 1. KAUSHAD M.A., S/O. C.M. ABDUL KHADER, AGED 25 YEARS, MALAYAMKULATHAYIL, KAKKAD P.O., THIRURANGADI, MALAPPURAM. 2. ABDUL MAJEED, S/O. ABDUL KHADER, AGED 24 YEARS, RESIDING AT ANDICHERY HOUSE, TIRURANGADI P.O., MALAPPURAM. BY ADV. SRI.M.R.RAJENDRAN NAIR, SENIOR ADVOCATE RESPONDENT(S): --------------- 1. STATE OF KERALA, REP. BY PRINCIPAL SECRETARY TO GOVERNMENT, FOREST AND WILD LIFE DEPARTMENT, SECRETARIAT, TRIVANDRUM. 2. THE CHIEF CONSERVATOR OF FOREST, KERALA, TRIVANDRUM. 3. THE KERALA PUBLIC SERVICE COMMISSION, REP. BY SECRETARY TO PUBLIC SERVICE COMMISSION, PATTOM, TRIVANDRUM. 4. SIMON FRANCIS, AGED 47 YEARS, S/O. C.R. FRANCIS JOSEPH, KOCHEEKKARAN VEEDU, PATHIRAPPALLY VILLAGE, AMBALAPPUZHA TALUK. 5. JOSEPH MATHEW, S/O. M.J. MATHEW, AGED 50 YEARS, WORKING AS PLAN OFFICER (ASSISTANT CONSERVATOR OF FORESTS), NENMARA AT OLAVAKKODE. ADDL. R4 IS IMPLEADED AS PER ORDER DT. 3-11-1999 IN C.M.P.NO. 45886/99. ADDL. R5 IS IMPLEADED AS PER ORDER DT. 28-11-2001 IN C.M.P. 56537/01. ADV. SRI.ALEXANDER THOMAS,SC,KPSC FOR R3 SRI.K.L.NARASIMHAN SRI.K.G.MOHANDAS PAI SRI.BECHU KURIAN THOMAS FOR R3 SRI.PRAKASH PUTHIADAM FOR R3 GOVERNMENT PLEADER SRI SANDESH RAJU FOR R1 & R2 SRI.SHAJI P.CHALY FOR R4 SRI.M.N.SANJITH FOR R4 SRI.V.A.MUHAMMED FOR ADDL.R5 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 25/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PETITIONERS' EXHIBITS: O.P.NO. 21605/1999 ---------------------------------------------------------------- EXT.P1 COPY OF REPRESENTATION DT. 2-8-1999. EXT.P2 JUDGMENT IN O.P.NO. 13385/1996 DT. 11-7-2001.SS RESPONDENTS' EXHIBITS: -------------------------------------- EXT.R4(a) LETTER DT. 31-5-1968. EXT.R4(b) COMMUNICATION DT. 15-4-1994. EXT.R4(c) DRAFT AMENDMENT OF THE RULES PROPOSED DT. 14-12-1995. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= O.P. No. 21605 of 1999 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 25th day of January, 2010. J U D G M E N T The petitioners are unemployed youths. They claim that they are eligible for being considered for the post of Assistant Conservator of Forests in the service of the Government of Kerala by direct recruitment in accordance with the Special Rules in force, which prescribe a ratio of 3:2 as between direct recruits and promotees. But, for the past more than 15 years, no direct recruitment to the post has been made in accordance with the Special Rules. When this matter was taken up for hearing on 30-3-2001, the learned Government Pleader submitted that in view of the lack of promotional avenues of the employees in service, the Government is contemplating amendment of the Special Rules making the method of recruitment by promotion only avoiding direct recruitment. Pursuant to the said submission, a learned Judge of this Court directed the learned Government Pleader to produce the orders amending the Special Rules, if any. It was also directed that otherwise vacancies may have to be reported to the Public Service Commission for direct recruitment in view of the decision of the Supreme Court in K. Siva Reddy v. State of Andhra Pradesh, AIR 1988 SC 860. When the matter again came up on 26-9-2001, a learned Single Judge of this Court directed as follows: “There will be a direction not to grant confirmation/substantive appointment to promote officers in the vacancy of Asst. Conservator of Forests in the quota for direct recruitment. There will be a further direction to the 1st respondent to file a statement as to the steps taken in the matter of filling up of the vacancy reserved for direct recruitment. The statement shall be filed within one month from the date of production of a copy of this order by the petitioners.” Thereafter, the matter again came up before me on 1-12-2009. At O.P.No. 21605/1999. -: 2 :- that time the learned Government Pleader again sought time to ascertain whether Special Rules have been amended. Although because of the said attitude of the Government I was inclined to direct filling up of the vacancies in accordance with the existing Special Rules insofar as even after more than 15 years, without amending the Special Rules the post is not being filled up in accordance with the Special Rules and was being filled up illegally by promotion alone, taking a lenient view, I granted time to the learned Government Pleader to obtain instructions regarding the present status so that the original petition can be finally disposed of. I posted the matter to 7-12-2009. On 7-12-2009 also, the situation remained the same. Therefore, I directed the learned Government Pleader to file a statement regarding the present status of the amendment of the Special Rules. On 20-1-2010, the learned Government Pleader filed a statement producing Anexure R1(a) draft Special Rules for Kerala Forests Service, 1966, which is a comprehensive amendment to the entire Special Rules and not to the Special Rules applicable to the post of Assistant Conservator of Forests alone. But, Annexure R1 was draft Special Rules prepared in 2010. I directed the learned Government Pleader to explain why after submitting before this Court that proceedings have been initiated for amending the Special Rules, a draft Special Rules were framed only in 2010, the learned Government Pleader submitted that it could only have been correction of the year in the draft rules to make the same current and the original draft must have been prepared long back. Accordingly, I directed the learned Government Pleader to produce the files relating to the same. Today, the learned Government Pleader produces the files and points out that the draft rules were originally framed on 16- 9-1992 and the Public Service Commission was addressed for O.P.No. 21605/1999. -: 3 :- concurrence. The learned Government Pleader also submits that the draft Special Rules would be finalised within two months. 2. Learned counsel for the petitioner points out that in Annexure R1(a), there is no proposal for making the amendment retrospective and therefore the post of Assistant Conservator of Forests could not have been filled up by promotion till the date of publication of the amended Special Rules. The learned Government Pleader submits that there is a proposal for making amendment to the recruitment rules to the post of Assistant Conservator of Forests retrospectively so as to validate the promotions already made. I am not at all satisfied with the conduct of the respondents in the matter. After preparing the draft Special Rules as early as in 1992, even in 2010 that has not been finalised, which is a sad state of affairs. At the same time, the Government has been going on making illegal appointments contrary to the Special Rules. The Government should realise that our country is still governed by rule of law, which is applicable to the Government also and when recruitments are made, that can only be in accordance with the existing Special Rules. Admittedly, the Government had been making promotions to the post of Assistant Conservator of Forest illegally by promotion alone, contrary to the Special Rules applicable on the ground that the Government proposes to amend the Special Rules. Notwithstanding the improper conduct of the Government in not finalising the draft Special Rules within a reasonable time and going on making appointments contrary to the existing Special Rules, I do not think that the petitioners can be given any effective relief in this case in the peculiar facts and circumstances of the case. In the above circumstances, the original petition is disposed of with the following directions: O.P.No. 21605/1999. -: 4 :- The 1st respondent shall finalise and publish the amended Special Rules for the Kerala Forest Service within two months from the date of receipt of a copy of this judgment. If the amended Special Rules are not brought into force within the said time or even if brought into force, it does not give any retrospectivity to the Rules for the post of Assistant Conservator of Forest, all promotions made contrary to the existing Special Rules with regard to the Assistant Conservator of Forest shall be cancelled and appropriate number of vacancies as per the ratio fixed shall be reported to the Public Service Commission for direct recruitment in accordance with the Special Rules those were in existence at the time of occurrence of vacancies. Sd/- S. Siri Jagan, Judge. Tds/