IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 6TH DECEMBER 2010 / 15TH AGRAHAYANA 1932 WA.No. 1220 of 2010() --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.13291/2009 Dated 08/06/2010 .................... APPELLANT/ PETITIONER ------------------------ P.K.LAL, ADDITIONAL DIRECTOR OF INFORMATION AND PUBLIC RELATIONS, PUBLIC RELATIONS DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. BY ADV. SRI.A.N.KUTTAN RESPONDENTS/ RESPONDENTS -------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT OF KERALA, SECRETARIAT THIRUVANANTHAPURAM. 2. SECRETARY TO GOVERNMENT, GENERAL ADMINISTRATION DEPARTMENT, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM. 3. M.NANDAKUMAR, I.A.S., DIRECTOR OF PUBLIC RELATIONS, THIRUVANANTHAPURAM. BY SR. GOVERNMENT PLEADER ADV. MR. BENNY GERVASIS. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 06/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J. CHELAMESWAR, CJ & P.R. RAMACHANDRA MENON, J. .......................................................................... W.A. No. 1220 OF 2010 ......................................................................... Dated this the 6th December, 2010 J U D G M E N T J. Chelameswar, CJ. Aggrieved by judgment dated 08.06.2010 in W.P. (C)No. 13291 of 2009, the unsuccessful petitioner therein preferred the instant appeal. The petitioner is an Additional Director of Information and Public Relations in the service of the State of Kerala. The conditions of the said service are regulated by Special Rules made by the State of Kerala, in exercise of the powers under Section 2 of sub-section (1) of the Kerala Public Service Act, 1968. The prevailing rules are made in the year 2002. Rule 2 describes the service consisting of 10 categories . In the first category there is only one post called the Director of Public Relations. Rule 3 deals with the method of appointment to the various categories of posts and in so far as the post of Director of Public Relations is concerned, the method of appointment is W.A. No. 1220 OF 2010 2 stipulated as follows: “........ 3. Appointment:-(a) Appointment to the several categories shall be made as follows Category Method of appointment Director of Public Relations (i) By promotion from the category of Additional Director of Public Relations. OR (ii) By transfer from any other service OR (iii) By Direct recruitment including appointment on contract basis. 2. It can be seen from the above extract that the post of Director of Public Relations can be filled up either by promotion from the category of Additional Director of Public Relations or by transfer from any other service or by Direct Recruitment, including appointment on contract basis. 3. The appellant, who is an Additional Director of Public Relations aspires to be promoted to the post of Director of Public Relations in view of the above extracted rule, which does provide for promotion as one of the methods of appointment to the post of the Director of Public Relations. W.A. No. 1220 OF 2010 3 4. Complaining that by an order dated 28.04.2009 marked as Ext. P4 in the Writ Petition, the third respondent was illegally appointed as the Director of Public Relations, the appellant herein approached this Court by way of the above mentioned Writ petition with the prayers as follows: “(A) a writ of certiorari or any other appropriate writ, order or direction quashing Ext. P4 order to the extent relating to the appointment of the 3rd respondent as Director of Public Relations. (B) a writ of mandamus or any other writ, order or direction commanding the 1st and 2nd respondents to consider the claims of the petitioner for promotion to the post of Director under the provisions of Ext.P2 Special Rules and the representation referred to as Ext. P5. (C) such other writ, order or direction as may be deemed just and expedient in the circumstances of the case; and (D) to allow the Writ Petition with costs.” 5. By the judgment under appeal, a learned Judge of this Court dismissed the Writ Petition, holding that the post of the Director of Public Relations is a post borne on the cadre of Indian Administrative Service and therefore W.A. No. 1220 OF 2010 4 could not be filled up by a person not borne by the cadre of Indian Administrative Service. 6. The learned Counsel for the appellant, Adv. Mr. A.N.Kuttan argued that though under the relevant rules governing the cadre of Indian Administrative Service, the post of Director of Public Relations in the State of Kerala is required to be filled up by appointment of an officer belonging to the Indian Administrative Service allotted to the State of Kerala, the Special Rules governing the 'Service' known as Kerala Public Relations Service gave a discretion to the State of Kerala to make appointment to the post of Director of Public Relations by resorting to any one of the three alternate methods of appointment. The learned counsel, therefore, submitted that the stand of the State of Kerala that they are obliged to appoint only an officer belonging to the cadre of Indian Administrative Service is not legally tenable. By taking such a stand, the State of Kerala failed to exercise the discretion legally vested in it under the Kerala Public Relations Service W.A. No. 1220 OF 2010 5 Special Rules, 2002, thereby rendering the appointment of the third respondent illegally. The learned Counsel also submitted that in the year 2005, even after coming into force of the Kerala Public Relations Service Special Rules 2002, the State of Kerala promoted one of the Additional Directors one Mr. K.C.Venu to the post of Director of Public Relations in exercise of the discretion vested in the State of Kerala under the above mentioned Rule 3 of the State of Kerala. Therefore the stand of the State of Kerala that they are obliged to appoint only an officer of the cadre of the Indian Administrative Service is only a stand taken to suit their convenience in the present case to justify the illegal appointment of the third respondent. 7. Part XIV of the Constitution of India deals with the Services under the Union and the States. Article 309 of the Constitution authorises the appropriate Legislation to regulate the recruitment and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State. W.A. No. 1220 OF 2010 6 However, Article 312* contemplates the establishment of certain All India Services by law made by the Parliament. ----------------------------------------------------------- ”312. All India Services:- (1) Notwithstanding anything in Chapter VI of Part VI or Part XI , if the Council of States has declared by resolution supported by not less than two-thirds of the members present and voting that it is necessary or expedient in the national interest so to do, Parliament may by law provide for the creation of one or more all-India services including an all-India Judicial service common to the Union and the States, and, subject to the other provisions of this chapter, regulate the recruitment, and the conditions of service of persons appointed, to any such service. (2) The services known at the commencement of this Constitution as the Indian Administrative Service and the Indian Police Service shall be deemed to be services created by Parliament under this article. (3) The all-India judicial service referred to in clause (1) shall not include any post inferior to that of a district judge as defined in article 236. (4) The law providing for the creation of the all-India judicial service aforesaid may contain such provisions for the amendment of Chapter VI of Part VI as may be necessary for giving effect to the provisions of that law and no such law shall be deemed to be an amendment of this constitution for the purposes of article 368”. W.A. No. 1220 OF 2010 7 Sub-clause (2) of Article 312 declares that the service known at the commencement of the Constitution as the Indian Administrative Service and the Indian Police Service shall be deemed to be services created by Parliament under the said Article. Apart from the mandatory requirement that the above mentioned two services are required to be legally treated as All India Services, clause (1) of Article 312 authorises the Parliament to create other services common to the Union and the States, and regulate the process of recruitment and the conditions of such services. 8. In exercise of the authority conferred under Article 312 of the Constitution, the Parliament made the All India Services Act 1951, which authorises the Union of India, under Section 3, to make rules for the regulation of recruitment and the conditions of service of persons appointed to an All India Service. In exercise of the powers conferred under sub section (1) of Section 3 of the All India Services Act,1951, the Government of India made the Indian Administrative Service (Cadre) Rules,1954. W.A. No. 1220 OF 2010 8 Under Rule 3, it is stipulated that there shall be constituted for each State or group of States an Indian Administrative Service cadre. Rule 4 of the said Rules provides that the strength and composition of each of the cadres constituted under Rule 3 shall be as determined by the Regulations made by the Central Government in consultation with the State Government. Under Rule 8 of the said Rules, it is provided that every cadre post shall be filled by a cadre officer. Rule 8(1) of the Rules reads as follows: “Save as otherwise provided in the rules, every cadre posts shall be filled by a cadre officer.” The expression 'cadre officer' and 'cadre post' are defined under Rule 2 (a) and (b) respectively of the said rules as follows: “a) 'cadre officer' means a member of the Indian Administrative Service. (b) 'cadre post' means any of the post specified under Item I of each cadre in the schedule to the Indian Administrative Service (Fixation of Cadre Strength) Regulations, 1955.” W.A. No. 1220 OF 2010 9 9. Rule 9 categorically declares that a Cadre Post in a State shall not be filled by a person who is not a cadre officer barring exceptional situations. Rule 9 clause (1) in so far as, is relevant and reads as follows: “(1) A Cadre post in a State shall not be filled by a person who is not a cadre officer except in the following cases, namely: - (a) if there is no suitable cadre officer available, for filling the vacancy: Provided that when a suitable cadre officer becomes available, the person who is not a cadre officer shall be replaced by the cadre officer. Provided further that if it is proposed to continue the person who is not a cadre officer beyond a period of three months, the State Government shall obtain the prior approval of the Central Government for such continuance. (b) if the vacancy is not likely to last or more than three months. Provided that if the vacancy is likely to exceed a period of three months the State Government shall obtain the prior approval of the Central Government for continuing the person who is not a Cadre Officer, beyond the period of three months”. 10. In exercise of the powers under sub rule (1) of Rule 4 mentioned above, the Government of India, in W.A. No. 1220 OF 2010 10 consultation with the State Governments made the Regulations known as Indian Administrative Service (Fixation of Cadre Strength)Regulations, 1955. With reference to the State of Kerala, under entry 9 (KERALA), the various posts in the State of Kerala which are required to be filled up by cadre officers and the total number of such posts are specified. Admittedly, the post of Director of Public Relations is a cadre post contemplated under the above Regulations. By notification dated 10th June, 1999 of the Government of India, the existing item '9' of the above mentioned Regulations in so far as it deals with the State of Kerala, was amended by including the Director of Public Relations in the cadre of Indian Administrative Service in so far as the State of Kerala is concerned. Therefore, on the basis of the declaration made under Rules 8 and 9 that a cadre post shall be filled up only by a cadre officer and not by any other officer, except in an exceptional situation. 11. Therefore, we do not see any illegality in the W.A. No. 1220 OF 2010 11 decision of the State of Kerala to appoint the third respondent to the post of the Director of Public Relations. 12. The other submission of the learned Counsel for the appellant that in view of the fact that the Special Rules of the State of Kerala, known as “Kerala Public Relations Service Special Rules, 2002”, have been framed at a later point of time than the Indian Administrative Service (Fixation of Cadre Strength) Regulations, 1955, the latter rules shall prevail cannot be accepted in view of the constitutional mandate under Article 312 of the Constitution of India, which opens with a non-obstante clause. The authority of the Parliament to legislate upon the subject of All India Services is declared to be overriding the arrangement made in Part XI of the Constitution which deals with the legislative relations between the Union and the States. 13. Therefore, in so far as the services which are either deemed to be or declared to be All India Services, are concerned, the authority of the Parliament to legislate W.A. No. 1220 OF 2010 12 upon the subject is plenary and the concerned State Legislatures are denuded of the authority to make any law in that regard once the authority to deal with, either the process of recruitment or conditions of service of the post which is declared to be a post borne by the cadre of an All India Service. 14. Coming to the other submission of the learned Counsel for the appellant that in the year 2005, an officer who did not belong to the Indian Administrative Service was in fact appointed to the post of Director of Public Relations, we are of the opinion that Rule 9 of the Indian Administrative Service (Cadre) Rules 1954 does contemplate the possibility of appointment of a person not belonging to the cadre of the Indian Administrative Service for a limited period in exceptional circumstances and subject to certain restrictions made in the Rule 9 of the above mentioned rules. We do not know under what circumstance such appointment came to be made in the year 2005. In the absence of any specific challenge to such an appointment W.A. No. 1220 OF 2010 13 and an appropriate pleading, the mere fact that such appointment was made in the year 2005, does not create any right in favour of the appellant herein nor constitute any precedent in making a further appointment in violation of the mandate under Rules 8 and 9 of the Indian Administrative Service (Cadre) Rules 1954. In the result, we do not see any merit in the appeal and it is dismissed. No cost. J. CHELAMESWAR, CHIEF JUSTICE. P.R. RAMACHANDRA MENON, JUDGE. lk