IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 7TH JULY 2009 / 16TH ASHADHA 1931 WP(C).No. 32366 of 2007(C) ------------------------------------- PETITIONER(S): ----------------------- K.L.SUDHAMONY, DISTRICT SOCIAL WELFARE OFFICER, DISTRICT SOCIAL WELFARE OFFICE, CIVIL STATION, MALAPPURAM. BY ADVS. MR.TITUS MANI MR.SURAJ SUKUMARAN RESPONDENTS: ----------------------- 1. STATE OF KERALA REPRESENTED BY ITS CHIEF SECRETARY GOVT. SECRETARIAT, TRIVANDRUM. 2. RAGHAVAN UNNI, REGIONAL ASSISTANT DIRECTOR OF SOCIL WELFARE HIGH COURT JN, ERNAKULAM, KOCHI-682 011. 3. ELSY P SEBASTIAN ASSISTANT DIRECTOR (IN CHARGE) DIRECTORATE OF SOCIAL WELFARE VIKAS BHAVAN, THIRUVANANTHAPURAM. 4. ABDUL SHUKOOR, DISTRICT PROBATION OFFICER, DISTRICT SOCIAL WELFARE OFFICE ALAPUZHA. 5. V.K.RAJASHREE, DISTRICT PROBATION OFFICER, DISTRICT SOCIAL WELFARE OFFICE, KOTTAYAM-686002. 6. V.S.VENU, DISTRICT PROBATION OFFICER, DISTRICT SOCIAL WELFARE OFFICE, HIGH COURT JN, ERNAKULAM, KOCHI-682 011. BY GOVERNMENT PLEADER SMT. SUNITHA SUKUMAR FOR R1 ADV. MR.A.J.JOSE(AEDAIODI) FOR R.2TO6 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 32366 of 2007(C) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 - THE PHOTOCOPY OF THE SPECIAL RULES EXT.P2 - A TRUE COPY OF THE LETTER TO THE SECRETARY OF THE 1ST RESPONDENT. EXT.P3 - A TRUE COPY OF THE REPORT OF THE SPECIAL OFFICER. EXT.P4 - A TRUE COPY OF THE REPRESENTATION. EXT.P5 - THE TRUE COPY OF THE G.O(P) No. 35/2002/SWD DATED 31st DECEMBER 2002. // TRUE COPY // PA TO JUDGE rhs S. SIRI JAGAN, J ............................................... W.P(C) No. 32366 of 2007 ................................................. Dated this the 7th day of July, 2009 J U D G M E N T The petitioner brings forth a serious case of anomaly in the Special Rules for the Kerala Social Welfare Service, which according to the petitioner operates to her disadvantage in so far as persons who entered service 6 years or more after the petitioner entered service are being promoted to higher categories, ahead of the petitioner repeatedly. The petitioner therefore challenges those Special Rule. The Special Rules in question are the Special Rules for Kerala Social Welfare Service Department. The petitioner is at present a District Social Welfare Officer included as category No. 5 in the Special Rules. The respondents 2 to 6 were juniors to the petitioner by 6 years or more at the time of entering service. But unfortunately for the petitioner, respondents 2 to 6 came to category six through a different stream of promotion. The petitioner came in the stream applicable to District Social Welfare Officers and became a District Social Welfare Officer. The respondents 2 to 6 became W.P(C) No. 32366 of2007 -2- by promotion District Probation Officers Grade II, ahead of the petitioner since the number of employees in that stream were few and posts more and as a result they got promotion earlier to the petitioner to that post although they were much junior to the petitioner in the entry post. The anomaly is in respect of promotion to the post of Regional Probation Officer/ Regional Assistant Director/Assistant Director of Social Welfare included as category 4 in the special rules. The Special Rules for that post is a follows: 1 2 3 4. Regional Probation Officer/ Regional Assistant Director of Social Welfare 1. By promotion from categories 5,6,7 and 8 and by transfer from Senior Superintendent, from a common list prepared on the basis of date of appointment to the respective category without prejudice to interse seniority among persons belonging to the same category. Note .- (1) From 16-9-1985, promotion to this category shall be made from categories 5 and 6 only. (2) In the absence of qualified candidates for promotion, by direct recruitment. (i) Must have passed Kerala State Probation Test; and (ii) Must have passed Account Test (Lower) or Account Test for Executive Officers Must possess a Master's Degree in Social Work or Sociology of a recognised University. As is evident from the said rules, from 16.9.1985, the feeder category for those posts is categories 5 and 6 in the special rules. The method of appointment to categories 5 and 6 are as follows: W.P(C) No. 32366 of2007 -3- 5. District Social Welfare Officer/ Inspector, Special Nutrition Programme Grade I By appointment by transfer from the categories of Superintendent Grade II, Inspector, Special Nutrition Programme Grade II/Social Scientist/ Inspector, Special Nutrition Programme/ W.F.P./Sociologist/Supervis or (Voluntary Training Centre)/Centre Manager/Assistant Child Development Project Officer/Store Keeper-cum- Logistic Officer in the Kerala Social Welfare Subordinate Service and Junior Superintendent/Accountant in the Grade of Junior Superintendent from the Ministerial Subordinate Service of the Social Welfare Department from a common list prepared on the basis of date of appointment to the respective category without prejudice to interse ;seniority among persons belonging to the same category. 1 2 3 (2) In the absence of qualified candidates under item (1) above, by transfer appointment from category 7 and 8. Note.- From 16-9-1985 appointment to this category shall be made by promotion only from category 7 and 8 and by transfer from the Senior Superintendents of the Social Welfare Department from a common list prepared on the basis of the date of appointment to the respective category without prejudice to interse seniority among persons belonging to the same category. W.P(C) No. 32366 of2007 -4- (3) In the absence of qualified candidates for appointment by methods (1) and (2), by direct recruitment. (a) Essential.- Must possess a Master's Degree in Sociology or in Social Work of a recognised University. (b) Preferential.- Experience for a period of one year in Government Departments/ Public Undertakings after acquiring the essential qualifications. 6. District Probation Officer GradeI By appointment by transfer from the category of District Probation Officer Grade II in the Kerala Social Welfare Subordinate Service 2. The total number of employees in the feeder category for category 5 is 219 whereas the number of persons from whom the appointment to the post of category 6 is to be made is only 70. As a result, the persons who are in the stream for promotion to category 6 would get promoted to that post much ahead of those persons who get promoted to category 5. Consequently, going by the special rules applicable to category 4, the persons in category 5 would constantly be overlooked and persons in category 6 would become category 4 by promotion much ahead of the persons in category 5. This is because as per the Special Rules, promotion to category 4 is from a common list based on the date of appointment to the respective category. This is the anomaly. According to the petitioner this anomaly is violative of the fundamental rights of the petitioner guaranteed under W.P(C) No. 32366 of2007 -5- Articles 14 and 16 of the Constitution of India and the Special Rules are therefore liable to be struck down. 3. The petitioner points out that the 1st respondent is quite aware of the anomaly and the necessity to rectify the same, as is evident from Exts.P2 and P3. In Ext.P2, the Director of Social Welfare had written to the 1st respondent pointing out the anomaly and suggesting amendment of the Special Rules for rectifying this anomaly. He further points out that in Ext.P3 report of the Special officer appointed by the Government, for amendment proposals to the Special Rules of social welfare department also this anomaly has been highlighted. In fact the special officer had submitted a draft amended Special Rules also as per which a ratio of 10:1 between category 5 and 6 is suggested for promotion to category 4 instead of promotion on the basis of the common list based on date of appointment. But the petitioner submits that although Ext.P3 recommendations were made as early as in 2000, even after 9 years, the situation remains the same and the petitioner and persons like her continues to suffer unendingly, while persons junior to them in category 6 are being promoted regularly to the higher post. The petitioner therefore seeks the following reliefs: “(i) Issue a writ, order or direction declaring that Ext.P1 Special Rules as unconstitutional and to strike down the same. W.P(C) No. 32366 of2007 -6- (ii) Declare that the petitioner is entitled to get her due promotions in preference to respondents 2 to 6. (iii) Direct to the 1st respondent to give retrospective promotion to the petitioner on the strength of their ranking in the CDPO.” 4. A counter affidavit has been filed by the 1st respondent in which also the necessity to rectify the anomaly is not disputed. But the 1st respondent takes the contention that this court has no jurisdiction to direct legislation by amending the Special Rules. Although, it is not stated in the counter affidavit, the learned Government Pleader would submit that the process of amending the special rules in accordance with Ext.P3 is in progress and appropriate amendments would be made shortly. But the Government Pleader is unable to tell me a time frame within which the amendment are likely to be implemented. In the above circumstances, I am constrained to consider the contentions of the petitioner on merits regarding the validity of the special rules. 5. As I have pointed out there is no dispute whatsoever that a very serious anomaly exists in the Special Rules. The Director of Social Welfare has explained the anomaly thus in Ext.P2. (Malayalam quoting) W.P(C) No. 32366 of2007 -7- (Malayalam quoting) W.P(C) No. 32366 of2007 -8- (Malayalam quoting) W.P(C) No. 32366 of2007 -9- (Malayalam quoting) W.P(C) No. 32366 of2007 -10- (Malayalam quoting) W.P(C) No. 32366 of2007 -11- (Malayalam quoting) 6. Again this is further elaborated by the Special Officer in his Ext.P3 report thus: “34. There is a general complaint among the officers in the Department that because of the provision in the Special Rules for promotion to the posts of Regional Assistant Director and Assistant Director from the common list of District Probation Officer Grade I and District Social Welfare Officer prepared on the basis of their date of appointment to the respective category, a situation exists in which District Probation Officers get promotion to the posts of Regional Assistant Director/ Assistant Director and higher posts earlier thatn the District Social Welfare Officers and that this causes stagnation on the part of the District Social Welfare Officers. The method of appointment to the post of Regional Assistant Director/ Assistant Director as per the Special Rules, is by promotion from the categories of District Probation Officer Grade I and District Social Welfare Officer from a common list prepared on the basis of their date of appointment to the respective category without prejudice to the interse seniority among persons belonging to the same category. Before issue of the Special Rules, promotion to these posts was being made as per G.O.(P) No. 25/81/LA&SWD dated 31.1.1981. According to the G.O. categories of posts included in the feeder categories of the above posts were (1) District Probation Officer Grade I (2) Inspector Special Nutrition Programme Grade I (since redesgnated as District Social Welfare Officer as per G.O.MS No.19/83/LA&SWD dated 18.2.1983); (3) Child Development Officer (ICDS) and (4) Superintendent Welfare Institution Grade I. At the time of issue of the G.O., these posts were existing in the same time-scale viz. Rs.650-1150. In the pay revision 1983 ordered in G.O(P) No. 515/85/Fin. dated 16.9.1985, the posts of District Probation Officer Grade I and District Social Welfare Officer have been upgraded to the scale of W.P(C) No. 32366 of2007 -12- Rs. 1250-2500 while the other posts were allowed the scale of Rs.1100-2100. Therefore, in the Special Rules, the posts of CDPO and Superintendent Welfare Institution Grade I were retained in the feeder categories upto 16.9.1985 only, with effect from 16.9.1985, District Social Welfare Officer and District Probation Officer Grade I are the feeder categories to the posts of Regional Assistant Director/Assistant Director. But in the pay revision 1988, the scale of pay of the post of District Probation Officer Grade I was revised on Rs.1590-3050 and the post of District Social Welfare Officer was allowed the scale of Rs.1650-3175. Accordingly at present, these posts exist in the scales of Rs.7200-11400 and Rs.7450-11475 respectively. The Note (vi) below rule 28(b) (i) (7) of the General Rules under the Kerala State and Subordinate Service Rules reads as follows:- “When there are more than one feeder category carrying different scales of pay, they shall be shown in separate lists and persons in a lower scale of pay shall be shown in separate lists and persons in a lower scale of pay shall be appointed only after appointing all persons on a higher scale of pay, unless the Special Rules prescribe a ratio or any special order of preference for each feeder category.” Since the posts of District Probation Officer Grade I and District Social Welfare Officer carry different scales of pay, they should have been included in the Special Rules, with a specific ratio. Instead, it has been provided in the Special Rules that promotion will be made from a common list prepared on the basis of date of appointment to the respective category. This is in violation of the provision contained in the General Rules. It exists without any challenge because of protection clause in rule 2 of the General Rules. If Special Rules are amended in accordance with the substantive rule of the above Note, in the General Rules, it will deny the chances of promotion of District Probation Officer Grade I. In the circumstances, the only solution to remove the present anomally is to fix a ratio between the two categories. 35. It is seen that Director, Social Welfare Department in his letter No. E1-17044/97 dated 15.10.1998 has recommended to fix the ratio of 5:1 between the two categories for promotion. District Probation Officer Grade II is the only feeder category for promotion to the post of District Probation Officer Grade I. There are at present 21 posts of District Probation Officer Grade II, in the department. The feeder categories for the post of District Social Welfare Officer are (1) CDPO (163 posts), (2) Programme Officers (22 posts), (3) Project Officer, USNP (12 posts), (4)(Superintendent, Welfare Institution W.P(C) No. 32366 of2007 -13- Grade I (17 posts) and Senior Superintendent (4 posts) with a total number 218. If a ratio is fixed with reference to the number of posts included in the previous paras are also taken into account, it will change the ratio further. Therefore, the ratio of 10:1 between the post of DSW and District Probation Officer may be fixed for promotion to the category of Regional Assistant Director/ Assistant Director.” 7. In the draft special rules appended to the report. The proposal for amendment of the recruitment rules for category 4 is as follows: 4. Superintendent Welfare Institution Grade II Superintendent (J.S.) Grade II 1. By promotion from category 12. 2. In the absence of qualified candidates under item (1) above, by transfer from the qualified candidates under categories 5, 6, 10. (a) SSLC or its equivalent. (b) Account Test (Lower) Note : 1. Only female candidates are eligible for appointment to the Welfare Institution for women. 2. Appointment by method (2) above shall be made from a common list prepared on the basis of the date of appointment to the respective feeder categories without prejudice to the interse seniority of persons in the same category. 8. From the above it is abundantly clear that the rules in so far as the same is challenged by the petitioner is arbitrary and discriminatory and therefore violative of the fundamental rights of the petitioner guaranteed under Articles 14 and 16 of the Constitution of India. Therefore, the same to the extent, the method of appointment is prescribed as from a common list prepared on the basis of date of appointment to the respective W.P(C) No. 32366 of2007 -14- category without prejudice to the seniority among persons belonging to same category is quashed. It is directed that until Special Rules are suitably amended, promotion to category 4 shall be strictly in accordance with Rule 28(b)(i)(7)(vi) of the General Rules of the Kerala State & Subordinate Services Rules, which reads thus: “b(1) promotion and appointment by transfer according to merit and ability:- (7) *** *** *** *** *** (vi) When there are more than one feeder category carrying different scales of pay, they shall be shown in separate lists and persons in a lower scale of pay shall be appointed only after appointing all persons on a higher scale of pay, unless the Special Rules prescribe a ratio or any special order of preference for each feeder category.” The writ petition is allowed as above. Consequently, there would be a direction to give the petitioner promotion in accordance with the above directions before her retirement, since based on the special rules which has been quashed now her juniors have already been promoted. S. SIRI JAGAN, JUDGE rhs In paragraph 7 of the judgment dated 07/07/2009 in WP(C) 32366/2007, the extracted portion from draft amended rules are corrected and substituted as follows: W.P(C) No. 32366 of2007 -15- “4. Regional Assistant Director Assistant Director of Social Welfare 1. By promotion from categories 5 and 6 in the ratio of 10 : 1 between categories 5 and 6. (i) Must have passed Kerala State Probation Test; and (ii) Must have passed Account Test (Lower) or Account Test for Executive Officer 2. In the absence of qualified candidates for promotion, by direct recruitment. Must possess a Master's Degree in Social Work or Sociology of a recognized University.” Vide order dated 29/07/2009 in I.A. 9196/2009. Sd/- Registrar (Judicial)