IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR TUESDAY, THE 23RD JUNE 2009 / 2ND ASHADHA 1931 WA.No. 779 of 2009() -------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.20688/2008 Dated 12/12/2008 .................... APPELLANT/ PETITIONER NO.1 IN WPC ---------------------- P.ILBERT LOPEZ, S/O.PUSHAPAM LOPEZ, NON TECHNICAL ATTENDER (LIBRARY ATTENDER), GOVERNMENT ENGINEERING COLLEGE, BARTONHILL, THIRUVANANTHAPURAM. BY ADV. SRI.O.D.SIVADAS RESPONDENTS/ RESPONDENTS -------------------------- 1. GOVERNMENT OF KERALA,REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT,HIGHER EDUCATION (A)DEPARTMENT,THIRUVANANTHAPURAM. 2. THE DIRECTOR, HIGHER EDUCATION DEPARTMENT THIRUVANANTHAPURAM. 3. SHAJI, RECORD ATTENDER, PUBLIC LIBRARY, THIRUVANANTHAPURAM. GOVERNMENT PLEADER, SMT.R.BINDU FOR R1 & 2 SRI.KALEESWARAM RAJ FOR R3 THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 23/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & C.T.RAVIKUMAR, JJ. ------------------------------ W.A.No. 779 OF 2009 ------------------------------- Dated this the 23rd day of June, 2009 J U D G M E N T ~~~~~~~~~~~ Balakrishnan Nair, J. The appellant was the 1st petitioner in the Writ Petition, which was filed by him along with others, challenging the validity of Ext.P2 Special Rules for the Kerala Common Pool Library Subordinate Service. He was a Non-Technical Attender (Library Attender) of Government Engineering College, Thiruvananthapuram. The promotion to the post of Librarian Grade IV in the Common Pool Libraries was governed by Ext.P1 order dated 18.12.1990. As per the said order, 50% of the vacancies were filled up by Direct Recruitment, 30% by promotion from any category in the Kerala Ministerial Subordinate Service and 20% by transfer from qualified attenders in Government Departments other than those coming under the Kerala Ministerial Subordinate Service. 2. The Government on 26.8.2003 promulgated Ext.P2 Special Rules governing appointment to various posts in the Kerala Common Pool Subordinate Service Rules, 2003. Now the W.A.No.779/2009 2 method of appointment is by transfer and direct recruitment. Transfer is to be made from approved probationers in any category in the Subordinate Service/Last Grade Service of Government of Kerala. The ratio between direct recruitment and transfer was 1:1. The qualification for transfer appointment was also considerably changed. As per Ext.P2, Graduate in any subject with Degree in Library and Information Science has first preference. Persons with S.S.L.C and Diploma in Library Science or Certificate in Library Science are also eligible. But, there is a ratio between 3:1:1 between Degree holders, Diploma holders and Certificate holders in the matter of appointment by transfer. The appellant has passed S.S.L.C and he is a Certificate holder in Library Science. So, the chances of appointment by transfer enjoyed by the appellant and similarly placed persons were considerably reduced with the introduction of Ext.P2. Further, the Rules provide that the appointment by transfer was also be left to the Public Service Commission. Appellant, aggrieved by the above changes in the qualification and method of appointment, along with others, filed representations, Exts.P4, P5 and other similar representations before the government. They noticed that by Ext.P3, the 3rd W.A.No.779/2009 3 respondent herein was promoted as Librarian Grade IV, apparently, in relaxation of the Rules without selection by the P.S.C. In Exts.P4, P5 and similar representations, they prayed for appointing them also as Librarian Grade -IV as was done in the case of the 3rd respondent. Since the Government did not take any action, the Writ Petition was filed challenging Ext.P2 and also praying for a direction to consider Exts.P4, P5 and similar representations. 3. The learned Single Judge dismissed the Writ Petition. It was held that no ground has been made out warranting interference with Ext.P2. The learned Single Judge also held that some benefit granted to the 3rd respondent contrary to the Rules cannot be granted to the writ petitioners. The Government cannot be compelled to repeat an illegality, it was held. In that view of the matter, the learned Single Judge rejected the prayer to dispose of the representations. Feeling aggrieved by the judgment of the learned Single Judge, this Writ Appeal is preferred by the 1st petitioner. W.A.No.779/2009 4 4. We heard the learned counsel Mr.O.D.Sivadas, who appeared for the appellant. He pointed out the disadvantages suffered by the appellant as a result of notification of Ext.P2 superseding Ext.P1. He also pointed out that though the 3rd respondent is working in a different service, still his case is identical to that of the writ petitioners. Therefore, the learned Single Judge ought to have directed the Government to consider their representations in the light of Ext.P3. 5. A statutory rule can be challenged only on limited grounds. They have been succinctly stated by a Division Bench of this Court in Pankajaksy v. Geroge Mathew [1987 (2) KLT 723]. The relevant portion of the said judgment reads as follows: “12. Thus, the rule made under a statute by an authority delegated for the purpose can be challenged on the ground (1) that it is ultra vires of the Act; (2) it is opposed to the Fundamental rights: (3) it is opposed to other plenary laws. To ascertain whether a rule is ultra rives of the Act, the Court can go into the question (a) whether it contravenes expressly or impliedly any of the provisions of the statute; (b) whether it achieves the intent and object of the Act; and (c) whether it is W.A.No.779/2009 5 “unreasonable” to be manifestly arbitrary, unjust or partial implying thereby want of authority to make such rules.” In the light of the principles stated above, we find that no ground has been stated in the Writ Petition warranting interference with Ext.P2. 6. Ext.P3 is an order passed apparently invoking the power of the Government under Rule 39 of the Kerala State & Subordinate Service Rules. We are also told that the 3rd respondent is a member of the Scheduled Caste. We are of the view that the special benefit granted to the 3rd respondent cannot be ordered to be extended to others also. At any rate, the appellant does not have any legal right and the Government do not owe any corresponding duty in this regard. Therefore, the prayer for mandamus to consider the appellant's grievances in the light of Ext.P3 cannot be granted. In the result, the Writ Appeal fails and it is dismissed. (K.BALAKRISHNAN NAIR, JUDGE) (C.T.RAVIKUMAR, JUDGE) ps W.A.No.779/2009 6 The second sentence in paragraph 6 of the judgment dated 23.6.2009 in W.A.No.779/2009, reading “we are also told that the 3rd respondent is a member of the Scheduled Caste” is deleted as per order dated 09.7.2009 in I.A.No.644/2009 in W.A.No.779/2009. sd/- Registrar (Judicial)