IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH WEDNESDAY, THE 20TH FEBRUARY 2008 / 1ST PHALGUNA 1929 WP(C).No. 19147 of 2006(D) ------------------------------------------------ PETITIONERS: -------------------- 1. CLARAMMA.M.J, SUPERVISOR, ICSD OFFICE, ERATTUPETTA, ERATTUPETTA.P.O, KOTTAYAM DISTRICT. 2. MEENAKUMARI.M.S, SUPERVISOR, ICDS OFFICE, BHARANICKAVU, KATTANAM, VETTIKODE.P.O, ALAPPUZHA DISTRICT. 3. O.LEELAMANI, SUPERVISOR, ICDS, ICDS PROJECT, CHITTUMALA, KOLLAM DISTRICT. 4. SANTHI.V.JOSEPH, SUPERVISOR, ICDS OFFICE, UZHAVOOR, KOTTAYAM DISTRICT. 5. SARADA.E.P, SUPERVISOR, I.C.D.S., ICDS PROJECT, ERATTUPETTA, ERATTUPETTA.P.O, KOTTAYAM DISTRICT. BY ADV. SRI.BENOY THOMAS & SRI.PAULSON THOMAS RESPONDENTS: ----------------------- 1. STATE OF KERALA, REP. BY THE CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE SECRETARY, SOCIAL WELFARE (A) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. WPC. 19147/06 D 3. THE DIRECTOR, SOCIAL WELFARE (A) DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 4. UNION OF INDIA, REP. BY THE SECRETARY TO GOVERNMENT, MINISTRY OF HUMAN RESOURCE DEVELOPMENT (DEPARTMENT OF WOMEN AND CHILD DEVELOPMENT), (C.D.SECTION), SHASTHRI BHAVAN, NEW DELHI. R4 BY ADV. SRI.D.PREM KAMATH, CGC R1 TO R3 BY SR. GOVERNMENT PLEADER SRI. T.B. REMANI. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(C). NO. 19147 OF 2006 D PETITIONERS' EXHIBITS: EXT.P1TRUE COPY OF THE LETTER DATED 20.5.1986 HAVING NO.1-1/84-CD ISSUED BY THE 3RD RESPONDENT. EXT.P2TRUE COPY OF THE KERALA SOCIAL WELFARE SUBORDINATE SERVICE RULES. EXT.P3TRUE COPY OF THE KERALA SOCIAL WELFARE STATE SERVICE RULES. EXT.P4TRUE COPY OF THE G.O.(P). NO. 5/2000/SWD DATED 19.2.2000. EXT.P5TRUE COPY OF THE LETTER DATED 4.10.1993 SENT BY THE CENTRAL GOVERNMENT. EXT.P6TRUE COPY OF THE JUDGMENT IN OP NO.26733/1999 PASSED BY THIS HONOURABLE COURT. EXT.P7TRUE COPY OF THE G.O.(P). NO.35/2002/SWD DATED 31.12.2002 ISSUED BY THE GOVERNMENT OF KERALA. EXT.P7(A) TRUE COPY OF THE G.O.(P). NO. 36/2002/SWD DATED 31.12.2002 ISSUED BY THE GOVERNMENT OF KERALA. EXT.P8TRUE COPY OF THE ORDER DATED 1.11.2006 ISSUED BY THE DIRECTOR. EXT.P8 (DUPLICATION): TRUE COPY OF THE APPLICATION GIVEN AS PER THE RTI ACT DATED 17.12.2007. EXT.P9TRUE COPY OF THE INFORMATION GIVEN IN RESPONSE TO EXT.P8 LETTER BY THE PUBLIC INFORMATION OFFICER OF THE CENTRAL GOVERNMENT DATED 18.1.2008. EXT.10 TRUE COPY OF THE REPRESENTATION FILED BY THE PETITIONERS DATED 1.2.2008. RESPONDENTS' EXHIBITS: NIL. // TRUE COPY// PS TO JUDGE. K. M. JOSEPH, J. -------------------------------------- W.P.C. NO. 19147 OF 2006 D -------------------------------------- Dated this the 20th February, 2008 JUDGMENT Petitioners are working as Supervisors of Integrated Child Development Scheme (for short `ICDS'). They are Post Graduates in Subjects, like, Social Work, Sociology, Psychology and Home Science. They have approached this Court seeking the following reliefs: "i) Declare that the State Government is bound to make appointments against 75% of the posts of CDPOs of ICDS a centrally sponsored scheme exclusively from Supervisors of ICDS by promotion as per Ext.P1 directives issued by the Central Government and to redraft its internal recruitment rules ie. Ext.P3 (Category 7 of table to Rule 3(a)) and Ext.P2 (in respect of Category 7 of table to Rule 3) accordingly. ii) Declare that Rule 3(a) of Ext.P3 (in respect of Category 7 of table) and Rule 3 of Ext.P2 (in respect of category 7) in so far as they do not WPC. 19147/06 D 2 provide that the posts of CDPOs of ICDS (Category 7 of Ext.P3 Rules) are to be filled up by promotion from supervisors of ICDS (presently Category 8 of Ext.P2), but provided a different method of appointment by transfer from 11 categories not mentioned in Ext.P1 and further to the extent the posts of Supervisors of ICDS (presently Category 8 of Ext.P2) are not made the only feeder posts for promotion to the posts of CDPOs of ICDS (Category No.7 of Ext.P3 Rules) and further to the extent Supervisors of ICDS are not included in the State Services, the method of appointment prescribed being promotion as per Ext.P1, are directly opposed to Ext.P1 directive issued by the Central Government and therefore arbitrary, illegal and hit by Articles 14, 16 and 21 of the Constitution of India and hence void and inoperative. iii) Issue a consequential writ of mandamus or direction striking down the method of appointments prescribed for the posts of CDPOs of ICDS ie. Rule 3(a) category 7 of Ext.P3, prescription of the 11 feeder posts as well as Rule 3 WPC. 19147/06 D 3 Category 7 of Ext.P2 Rules to the extent it provided for promotions to supervisors of ICDS (Category 8) being contrary to Ext.P1. iv) Issue a consequential writ of mandamus or other appropriate writ, order or direction directing the State Government ie. Respondent No.1 to redraft and make the Rules in respect of the appointment of CDPOs from supervisors of ICDS projects of the State in tune with the declarations sought for in prayer Nos. (i) and (ii) and Ext.P1 ie. by reserving 75% of the posts of CDPOs of ICDS exclusively for promotion from supervisors of ICDS and till then to fill up 75% of the posts of CDPOs of ICDS exclusively from supervisors of ICDS by promotion, as stipulated in Ext.P1 and further to give notional effect to such promotions w.e.f. the date of coming into force of Ext.P3 Rules." 2. According to petitioners, by Ext.P1, the Government of India in the Ministry of Human Resource Development, have taken certain decisions and made directions to various Governments, providing for appointment to the post of Child WPC. 19147/06 D 4 Development Project Officer (for short `CDPO') by filling up 75 per cent of the posts from promotions from female Supervisors of ICDS projects and the remaining 25 per cent by direct recruitment. Exts.P2 and P3 are the statutory Rules framed under Section 2 of the Kerala public Services Act, 1968 in supersession of the orders prevailing. Ext.P2 are the Special Rules for Kerala Social Welfare Subordinate Service. Ext.P3 provides for Special Rules for the Kerala State Social Welfare Service. The essential complaint of the petitioners is that in violation of Ext.P1, when the Statutory Rules were framed, the posts held by the petitioners were not included in the feeder category for promotion to the post of ICDS, nor is 75% reservation given for them as contemplated in Ext.P1. It is pointed out by the petitioners that Ext.P5 dated 4.10.1993, inter alia, provides as follows: "With a view to ensure the desired level of interaction, it has been decided that the posts of CDPOs/ACDPOs shall be reserved for women candidates in all future appointments in respect of all State Governments/Union Territories. It is WPC. 19147/06 D 5 accordingly requested to take immediate action in amending the recruitment rules in your State/Union Territory to include reservation for women candidates for the posts of CDPOs/ACDPOs." 3. Pointing out that Exts.P1 and P5 were not implemented, certain Supervisors approached this Court with a Writ Petition which culminated in Ext.P6 Judgment and a perusal of the same would show that both Exts.P1 and P5 (which are referred to as Exts.P3 and P4 in the said Judgment) came to be accepted by the Government of Kerala and on the said basis this Court directed implementation of Exts.P1 and P5. Pursuant to the same, by Ext.P7 an amendment is brought to the Rules by which the category of CDPO came to be reserved exclusively for women. Likewise in Ext.P7(a), the category of ACDPO was also reserved exclusively for women. It is with these allegations that the petitioners have approached this Court. 4. A Counter Affidavit has been filed on behalf of respondents 1 and 2, to which the petitioners filed a Reply WPC. 19147/06 D 6 Affidavit and also an Additional Reply Affidavit. I heard the learned counsel appearing for the petitioners as also the learned Government Pleader. 5. Learned counsel for the petitioners would contend that the infraction of Ext.P1 directions by the Government of a State is in the teeth of Article 246(3) of the Constitution. According to him, Article 73 of the Constitution declares that the executive power of the Union shall be co-extensive with the legislative power of the Union. According to him, the subject of legislation is Entry 23 of List III of the 7th Schedule of the Constitution. He would therefore contend that a law cannot be passed by a State Legislature in view of Article 246 against the mandate of Ext.P1 to be traced to the Executive power of the Union and it must hold the field. In other words, in effect Ext.P1 must be deemed to be possessed the characteristics of the plenary legislation made by a competent legislature which would have over-riding effect in relation to the law made by the State legislature, namely Ext.P3 Rules. He would further contend WPC. 19147/06 D 7 that the failure of the rue making authority to adhere to Ext.P1 renders it arbitrary. He took me to Exts.P2 and P3 to point out that the post of Supervisor held by the petitioners figures as part of Subordinate Service. Petitioners can aspire for promotion only to the post of Superintendent and further as Inspector and the post of Supervisor held by the petitioners is not among the feeder categories to the post of CDPO which figures among the posts in the State service as provided in Ext.P3. He would point out that the petitioners are working from 1990 and stagnating as Supervisor and this being contrary to Ext.P1 is arbitrary. He would further submit that as evidenced by Ext.6 Judgment, this Court acted on the basis of Exts.P1 and P5 and also the acceptance of Exts.P1 and P5 by the Government and it is submitted that while the direction in Ext.P5 that the post should be filled up by women employees came to be incorporated by Exts.P7 and P7(a), there is transgression of Ext.P1 in so far as all women employees are allowed to aspire to the post of Officer and what is more, the women Supervisors are left out from WPC. 19147/06 D 8 reckoning for direct promotion. Learned Government Pleader, on the other hand, pointed out that Ext.P1 cannot have the effect of taking away the legislative power of the State and no interference is called for. 6. A perusal of Ext.P1 would show that a decision was taken by the Government, no doubt, providing that appointment to the post of ICDS Officer shall be by promotion from the category of female Supervisors to the extent of 75% and the rest by direct recruitment. However, Ext.P1 shows that it is essentially a request addressed to the Secretaries and Directors in charge of the ICDS in all the States. The grounds on which the Statutory Rule can be challenged are well settled. Failure to implement Ext.P1 cannot be a ground to declare a statutory rule bad. 7. I do not think that a ground exists in law countenancing or upsetting a statutory rule on the basis that it is contrary to the executive direction, even if Ext.P1 is to be held as a direction issued by the Government. Further, I do not think that Ext.P7 WPC. 19147/06 D 9 can be treated as a direction having regard to the language employed in Ext.P1. Still further I see no merit in the contention of the petitioners that there is violation of Article 246(3) of the Constitution. Article 246(3) reads as follows: "246. Subject-matter of laws made by parliament and by the Legislatures of States: (3) Subject to clauses (1) and (2), the Legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in Schedule VII (in this Constitution referred to as the`State List'" 8. Ext.P1 cannot by any stretch of imagination be treated as a law made by the Union Parliament within the meaning of Article 246. I would think that under the constitutional scheme of things, Ext.P1 could not have stood in the way of the ruling making authority to exercise power providing for the posts and method of promotion. In fact, in the Additional Reply Affidavit, WPC. 19147/06 D 10 petitioners have produced Ext.P9 which is provided under the Right to Information Act. Therein, it is stated that the guidelines in Ext.P5 letter are to be interpreted to be meant for woman candidates in general. Amendments were carried out. It is, no doubt, true that ideally going by the observation of the Union Government, promotion should be provided from the post of Supervisor in an extent of 75 per cent to the post of CDPO. But, that is essentially a value Judgment of the rule making authority, keeping in view various aspects including the nature and functions of the posts in question. Merely for the reason that statutory rule is made contrary to the request made in Ext.P1, I would not think it could be characterised as arbitrary under Article 14. It is not as if the petitioners as Supervisors are totally bereft of any promotional avenues. Petitioners are indeed provided with several promotional avenues. It is also pointed out by the counsel for the petitioners that under the Rules, all the existing employees at the time when the Rules were made are allowed to aspire for further promotion as CDPOs if they WPC. 19147/06 D 11 possess the qualification of SSLC and this will also stand in the way of the petitioners, who are Post Graduates getting promotion, and this will be a further hurdle for the petitioners. I see no merit in the said contention. Apparently, when the new Rules were framed, the rule making authority considered the case of the existing employees appropriately. In such circumstances, I do not find any merit in the Writ Petition. Accordingly, it is only to be dismissed and I do so. But, I make it clear that nothing stated in this Judgment will stand in the way of the Government considering Ext.P10. K. M. JOSEPH, JUDGE kbk.