IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 27TH FEBRUARY 2009 / 8TH PHALGUNA 1930 WP(C).No. 36212 of 2008(J) -------------------------------------- PETITIONER(S): ------------------------- K.A.CHANDRASEKHARAN, DIRECTOR, HANDLOOM & TEXTILES-UNDER ORDERS OF TRANSFER AND POSTING ON DEPUTATION AS MANAGING DIRECTOR, KERALA ARTISANS DEVELOPMENT CORPORATION- ON DEPUTATION, NOW R/AT HOUSE NO.P 90, PULLEKONAM LANE, SASTHAMANGALAM, THIRUVANANTHAPURAM. BY MR.KRB.KAIMAL, SENIOR ADVOCATE BY ADVS. MR.B.UNNIKRISHNA KAIMAL MR.V.MAHUSUDHANAN RESPONDENT(S): ----------------- -------- 1. STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, INDUSTRIES (C)DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. P.R.LUIS, DIRECTOR OF HANDLOOM & TEXTILES, VIKAS BHAVAN, THIRUVANANTHAPURAM. BY ADVS. MR.N.RAGHURAJ FOR R2 SMT.K.AMMINIKUTTY FOR R2 GOVERNMENT PLEADER MR.ANTONY MUKKATH FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/02/2009, THE COURT ON 27/02/2009 DELIVERED THE FOLLOWING: W.P.(C) NO.36212/2008 APPENDIX PETITIONERS EXHIBITS P1:- COPY OF THE RELEVANT PORTION OF THE GOVT. ORDER GO(P) NO.143/08/ID DT. 17.9.08. P2:- COPY OF THE ORDER GO(MS) NO.12/06/ID DT. 4.2.06 ISSUED BY THE IST RESPONDENT. P3:- COPY OF THE ORDER GO(RT) NO.768/06/ID DT. 15.7.06 ISSUED BY THE IST RESPONDENT P4:- COPY OF THE ORDER GO(RT) NO.1108/07/ID DT. 22.8.07 ISSUED BY THE IST RESPONDENT. P5:- COPY OF THE REPORT OF TRANSFER OF CHARGE DT. 31.8.07. P6:- COPY OF THE ORDER G.O.9RT) NO.1355/08/ID DT. 28.11.08 ISSUED BY THE IST RESPONDENT. P7:- COPY OF THE ORDER G.O.(RT) NO.1364/08/ID DT. 1.12.08 ISSUED BY THE IST RESPONDENT. RESPONDENT'S EXHIBITS R1(a):- COPY OF THE GO(P) NO.143/08 ID DT. 17.9.08. R2(a):- COPY OF THE SPECIAL RULES FOR KERALA INDUSTRIES SERVICES, 2008 PUBLISHED G.O.(P) NO.143/08/TD DT. 17.9.08. R2(b):- COPY OF THE ORDER BEARING FO(RT) NO.853/07/ID DT. 30.6.07 APPOINTING THIS RESPONDENT AS THE DIRECTOR, HANDLOOM & TEXTILES. /TRUE COPY/ P.S. TO JUDGE tss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 36212 of 2008-J - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 27th day of February, 2009. JUDGMENT The petitioner is aggrieved by Ext.P7 order by which he has been transferred and appointed as Managing Director of the Kerala Artisans’ Development Corporation on deputation basis from the post of Director, Handloom and Textiles and the second respondent has been appointed to the above post. 2. The Special Rules for the said service in the Department of Industries and Commerce is produced as Ext.P1 dated 17.9.2008 which was published in the Extra-ordinary Gazette dated 20.9.2008. Prior to this, the method of appointment and qualifications in respect of the post of Director, Handloom and Textiles were governed by the rules issued in G.O.(P) No.19/89/ID dated 24.1.1989. As per the above rules, the method of appointment was by transfer from the category of Additional Directors of Industries and Commerce and the appointing authority is the Government. As per the present Special Rules, the post of Director of Coir Development/Director of Handloom & Textiles, is Category I under Branch-I (General) and the method of appointment prescribed therein is WPC 36212/2008 2 “Appointment by Government”. No feeder category is prescribed but qualifications have been provided. These rules have got retrospective effect from 1.3.1997. 3. There was a vacancy in the post of Director of Handloom and Textiles on 31.5.2005. The petitioner was the Additional Director at that point of time and was the second in the seniority list. The Government by order dated 31.5.2005 posted the petitioner in full additional charge of Director and he assumed charge on 1.6.2005. This was regularisd by Ext.P2 after considering the eligibility of the petitioner and his senior one Shri N. Vimalan. Shri N. Vimalan was superseded on the ground that disciplinary/vigilance enquiry was pending against him. Later, by Ext.P3 dated 15.7.2006 Shri N. Vimalan was appointed as Director of Handloom and Textiles and the petitioner was transferred and posted as Managing Director, Kerala State Handloom Weavers’ Co-operative Society Ltd (HANTEX). 4. After the retirement of Shri N. Vimalan on 30.6.2007 the second respondent was appointed as Director of Handloom and Textiles with effect from 1.7.2007. Later, by Ext.P4 order dated 22.8.2007 the petitioner was appointed as Director, Handloom and Textiles and the second respondent was appointed as Managing Director of HANTEX. While the WPC 36212/2008 3 petitioner was continuing thus, by Ext.P6 order dated 28.11.2008 he was put in full additional charge of Managing Director, Kerala Artisans Development Corporation. Now, by Ext.P7 the petitioner has been posted as Managing Director of Artisans Development Corporation on deputation basis and the second respondent was appointed as Director of Handloom and Textiles, after terminating his deputation to HANTEX. The petitioner is challenging the same mainly on two grounds. 5. Ext.P7 shows that the petitioner was transferred and appointed as Managing Director of Kerala Artisans Development Corporation on deputation basis. He being senior, he was entitled to continue as Director of Handloom and Textiles. Going by Ext.P7, there is no appointment of second respondent as Director of Handloom and Textiles also. It is pointed out that the second respondent cannot be posted by transferring the petitioner to a non cadre post. Referring to Rule 9B of KS & SSR, it is further pointed out that even though the Government is competent to transfer a person from one department to another statutory body under the Government, such transfers shall be for reasons recorded in writing and as no reasons have been pointed out in Ext.P7, the same is unsustainable. 6. Separate counter affidavits have been filed by respondents 1 and 2 separately. The stand taken by the Government is that the post of Director, WPC 36212/2008 4 Handloom and Textiles is not a promotion post. The method of appointment as per the Special Rules is “Appointment by Government” and the qualifications are prescribed in the Special Rules. As such, any person who is qualified for appointment, can be selected by the Government for appointment to the said post. As the post of Director is not a promotion post, the seniority in the cadre of Additional Director is not a criteria for appointment as Director. It is further pointed out that presently, when Government felt that the service of the petitioner is required in the Kerala Artisans Development Corporation, he was appointed as Managing Director of the said Corporation on a deputation basis. It is explained that the order issued in favour of the petitioner is not at all a transfer order, but it is appointment on deputation at the same station also. It is contended that the second respondent is in the cadre of Director of Handloom and Textiles and Director, Coir Development and therefore both the petitioner and second respondent are equally eligible for posting as Director of Handloom and Textiles, and Director of Coir Development. The post of Managing Director, Kerala Artisans Development Corporation Limited is a deputation post. 7. In the counter affidavit filed by the second respondent, the stand taken is also that seniority is not the criteria, relevant. Going by the WPC 36212/2008 5 Special Rules, the appointment is not by way of promotion or by transfer from any other category from the Department of Industries and Commerce. 8. Heard learned Senior Counsel Shri K.R.B. Kaimal for the petitioner, Shri N. Reghuraj, learned counsel appearing for the second respondent and learned Govt. Pleader Shri Antony Mukkath, for the Government. 9. Learned Senior Counsel appearing for the petitioner submitted that the contention that seniority is not a criteria, cannot be sustained. It is submitted that going by Ext.P2, the petitioner was appointed superseding his senior on the ground that a disciplinary/vigilance enquiry was pending. After his retirement, the second respondent was appointed initially which was corrected as per Ext.P4 order. Therefore, it is submitted that as the matter was governed by the procedure contemplated in G.O.(P) No.19/89/ID dated 24.1.1989, Ext.P1 rules have no relevance and the order passed overlooking the seniority of the petitioner, is not sustainable. It is pointed out that the transfer of the petitioner to the Corporation cannot be said to be justified. 10. The following aspects are relevant to consider the issue. Going by the Special Rules which is effective from 1.3.1997, the method of appointment to the post of Category I, Director of Coir Development, WPC 36212/2008 6 Director of Handloom and Textiles, is by appointment. A reference to Ext.R1(a) Special Rules will show that in respect of other categories, the method of appointment is by promotion from the categories specified therein. Thus, it is clear that as far as the post of Director of Coir Development and Director of Handloom and Textiles is concerned, the Government can appoint persons having the qualification provided in the Special Rules. The above rules is effective from 1.3.1997. The vacancy herein arose on 1.7.2007. Therefore, the Special Rules will squarely apply. As contended by the learned Govt. Pleader and learned counsel appearing for the second respondent, the Government is given power to fill up the post by appointment of a qualified person. Therefore, nobody can claim appointment as a matter of right by way of promotion or on the basis of seniority. The main contention raised by the petitioner is that he is senior to the second respondent. Since seniority in the cadre of Additional Director is not made mention of in the Special Rules for appointment as Director, the Government could appoint any person having the qualification under the Special Rules as the Director of Handloom and Textiles. The said exercise cannot be said to be against the Special Rules or against the method of appointment prescribed by Govt. Order dated 24.1.1989. Even though the word 'transfer' is there in Ext.P7, actually it was an appointment on WPC 36212/2008 7 deputation. If it is thus understood, there cannot be any illegality as such. 11. Then the question is whether the appointment of the petitioner on deputation basis as Managing Director of Kerala Artisans Development Corporation is correct or not. Going by Ext.P6, he was put in full additional charge of Managing Director of Kerala Artisans Development Corporation. It is clear that the post has been filled up as per the Articles of Association which permits appointment by the Government. In that view of the matter, there is no illegality in the appointment of the petitioner by way of deputation in the said post. 12. Learned counsel for the second respondent invited my attention to Ext.P2 and contended that when the petitioner was appointed in the year 2006 superseding his senior Shri N. Vimalan, in the body of the said order while referring to the Special Rules then in force, it is stated that “the above Special Rules do not stipulate that the seniormost Additional Director of Industries and Commerce shall be appointed as Director of Handloom an Textiles.” Therefore, learned counsel submitted that prior to the coming into force of the Special Rules, seniority was not the criteria. I find force in the above submission. True, that the petitioner had gained appointment at that time superseding his senior Shri N. Vimalan, but that cannot to be taken as a precedent, involving appointment wherein the criteria is seniority. WPC 36212/2008 8 13. Learned Senior Counsel for the petitioner by relying upon the Special Rules of the year 1989, contended that the method of recruitment was not by transfer from other category and therefore it can be only on the basis of seniority. Going by the said rules, there is no stipulation that seniormost Additional Director should be appointed as Director. Therefore, the said argument is not correct. At any rate, going by the Special Rules, Ext.P1, the Government can make appointment to the post and once the Special Rules have come into force, the same is binding on the petitioner also. The Government was free to make appointment even though he was occupying the post at that time. There is nothing to show that the petitioner was appointed as per Ext.P4 on the basis of seniority. 14. Hence, as the seniority is not the criteria, it is open to the Government to invoke the power of appointment as contemplated under the Special Rules in Ext.R1(a). Ext.P7 is therefore not bad in law. Therefore, the writ petition fails and it is accordingly dismissed. (T.R. Ramachandran Nair, Judge.) kav/