IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE ACTING CHIEF JUSTICE MR.J.B.KOSHY & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 2ND JANUARY 2009 / 12TH POUSHA 1930 WA.No. 640 of 2008() -------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.9590/2004 dated 19/12/2006 .................... APPELLANT(S): RESPONDENTS: ------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. PRINCIPAL SECRETARY (FINANCE) FINANCE (EXP.A) DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 3. THE DISTRICT COLLECTOR, THRISSUR. BY GOVERNMENT PLEADER SRI.SANDESH RAJA RESPONDENT(S): PETITIONER: ------------------------------------------------ VILLAGEMEN STAFF ASOCIATION REG.NO. R.760-03, THRISSUR REP. BY SECRETARY (P.S.SAMBU, AGED 45, S/O.SUBRAMANIAN, PANIKKASSERI HOUSE, PATTANAM, VADAKKEKKARA P.O. NORTH PARUR) *ADDL.R2 IS IMPLEADED: R2. P.D.VIJAYAN, KIZHAKKEPULLAT, ARPOOKARA EAST P.O., KOTTAYAM DISTRICT. (*ADDL.R2 IS IMPLEADED AS PER ORDER DTD. 2/01/2009 IN I.A.NO.542/2008) ADV. SRI.VAKKOM N.VIJAYAN FOR ADDL.RPTS. SMT.V.RENJU FOR ADDL.RPTS. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 23/06/2008 ALONG WITH WA NO. 708 OF 2008, THE COURT ON 2/01/2009 DELIVERED THE FOLLOWING: Kss J.B. Koshy, Ag. C.J. & P.N.Ravindran, J. ===================== W.A.Nos.640 & 708 of 2008 ============================ Dated this the 2nd day of January, 2009. JUDGMENT Ravindran,J. Common questions arise in these Writ Appeals. They were therefore heard together and are being disposed of by this common judgment. 2. W.A.No.640 of 2008 arises from W.P.(C) No.9590 of 2004 and W.A.No.708 of 20087 arises from W.P.(C) No.31791 of 2003. The said Writ Petitions were disposed of by the learned Single Judge by a common judgment delivered on 19.12.2006. The appellants are the respondents in the Writ Petitions. The brief facts necessary for the disposal of these Writ Appeals are as follows: 3. The respondent in W.A.No.640 of 2008 is the Villagemen Staff Association represented by its Secretary and the respondents in W.A.No.708 of 2008 are Villagemen. The grievance voiced by them is -: 2 :- that Villagemen have not been given promotion to 15% of the vacancies in the category of Village Assistant arising every year, which they claim was reserved to them by G.O.(MS) No.876/72/RD dated 4.9.1972. By judgment delivered on 19.2.2006, which is impugned in these Writ Appeals, the learned Single Judge directed the appellants in these Writ Appeals to ensure that steps are taken to give retrospective promotion to Villagemen against the 15% quota in the respective vacancies of each year in the category of Village Assistant that arose after the introduction of the Special Rules. It was also declared that the promotees will be entitled to consequential monetary and other service benefits. There was also a further direction to effect ratio promotion as provided under the Special Rules with retrospective effect, with the further direction that such promotees will also be entitled to monetary and other service benefits. The appellants in these Writ Appeals moved for review of the said judgment. By a common order passed on 11.1.2008 in R.P.No.504 of 2007 in W.P.(C) No.9590 of 2004 and R.P.No.611 of 2007 in W.P.(C) No.31791 of 2003, the learned Single Judge clarified that the 15% quota will be limited to the vacancies of Village Assistant arising each year after the introduction of the Special Rules. 4. The respondents in W.A.Nos.640 and 708 of 2008 contend that in view of G.O.(MS) No.876/72/RD dated 4.9.1972 [copy of which is produced and marked as Ext.P1 in W.P.(C) No.9590 of 2004], Villagemen were declared as a separate category, distinct and different from last -: 3 :- grade servants and that 15% of the future vacancies in the cadre of Village Assistants were reserved to be filled up by promotion of Villagemen having five years service or more. They submit that in view of the said Government order, the Special Rules for the Kerala Last Grade Service were amended and the category of Villageman was deleted by G.O.(P) No.75/76/PD dated 11.3.1976 [copy of which is produced and marked as Ext.P2 in W.P.(C) No.9590 of 2004], that thereafter the Special Rules for the Kerala Revenue Ministerial Subordinate Service were amended by stipulating in Note 2 to Category 4 in Rule 3 that the ratio for appointment of Lower Division Clerks/Village Assistants including Special Village Assistant from Villagemen/Last Grade Servants/ Attenders shall be 3:2 and limited to 25% of the total posts of Village Assistants as on 9.9.1984 and 25% of 35% of the posts of Lower Division Clerk/Village Assistant thereafter. They further state that as per letter dated 29.1.1997 [copy of which is produced and marked as Ext.P3 in W.P.(C) No.9590 of 2004] it was clarified that Villagemen and Last Grade Servants need not pass the Chain Survey Test for promotion to the category of Lower Division Clerk/Village Assistant. They contend that they are thus entitled to 15% of the future vacancies in the category of Village Assistant besides the 25% quota of the total number of posts of Village Assistants as on 9.9.1984 and 25% of 35% of the posts of Lower Division Clerks/Village Assistants thereafter. By the judgment under challenge in the Writ Appeals, the learned Single Judge upheld their -: 4 :- contentions and directed the appellants in the Writ Appeals to ensure that steps are taken to give retrospective promotion to Villagemen against 15% of the vacancies in the category of Village Assistant arising each year after the introduction of the Special Rules. It was also declared that the promotees will be entitled to consequential monetary and other service benefits. 5. We have considered the submissions made at the Bar by the learned counsel appearing on either side. The Revenue and Village establishments were integrated with effect from 10.9.1984 as per G.O. (MS) No.911/84/RD dated 10.9.1984, pursuant to the recommendations of the Third Pay Commission. The respondents in these Writ Appeals contend that under the terms of the Government order dated 10.9.1984, Villagemen will continue to enjoy the benefit of reservation of 15% of the vacancies of Village Assistants arising every year, earmarked for being filled up by qualified Villagemen and that the integration order dated 10.9.1984 also contemplated an amendment to the Special Rules to provide for reservation of 15% of the vacancies in their favour. After the Revenue and Village establishments were integrated with effect from 10.9.1984, the Special Rules for the Kerala Revenue Ministerial Subordinate Service were amended by G.O.(P) No.567/89/RD dated 12.7.1989 with retrospective effect from 10.9.1984. The method of appointment to the post of Lower Division Clerk/Village Assistant including Special Village Assistant, prescribed in Rule 3 thereof is as -: 5 :- follows: “(4) Lower Division (i) By direct recruitment. Clerk/Village Assistant (ii) By transfer from among Copyists upto 26.5.1982 including Special and from Village Assistants upto 9.9.1984. Village Assistant (iii) By appointment of Lower Division Typist declared eligible for appointment as Lower Division Clerk as per G.O.(MS) No.301/PD dated the 26th September, 1968 of the Public (Services - D) Department. (iv) By appointment from Villagemen with minimum general educational qualification who are having three years service and from Villagemen without minimum educational qualification who are having five years service. (v) By appointment from Last Grade Servants/ Attenders in the Land Revenue and Survey Department with minimum general educational qualification and having five years total service. Note 1:- The ratio for direct recruitment, recruitment by transfer from among Copyists and recruitment by transfer from among Village Assistants from 25.11.1958 till 26.5.1982 shall be 9:4:7. Thereafter the ratio for direct recruitment and recruitment by transfer from among Village Assistants to the category of L.D. Clerks till 9.9.1984 shall be 13:7 Note 2:- The ratio for appointment from Villageman and Last Grade Servants/Attenders shall be 3:2 and limited to 25% of the total posts of Village Assistants as on 9.9.1984 and 25% of 35% of the post of L.D. Clerk/Village Assistant thereafter. In the absence of qualified Villageman and Last Grade Servants/Attenders the posts shall be filled up by direct recruitment. Note 3:- Lower Division Typists who are approved probationers or full members and having the prescribed educational qualification for admission to the competitive examination conducted by the Public Service Commission for selection of Lower Division Clerks shall be allowed to appear for the examination and those declared eligible as per G.O.(MS) No.301/PD dated 26th September, 1968 for appointment as Lower Division Clerks shall be appointed in every sixth -: 6 :- vacancy in the concerned unit according to their seniority among Lower Division Typists in the respective units on or after 26.9.1968. If no qualified candidate is available at the time of occurrence of the vacancy, such vacancies shall be filled up by direct recruitment. The posts of Village Assistants shall not be reckoned for the determination of every sixth vacancy arising in the constituent unit earmarked for the purpose of appointment by transfer from among Lower Division Typists. Note 4:- The service rendered by any person as Village Assistant prior to 1.1.1963 shall not be reckoned for seniority in the category of L.D. Clerk/Village Assistant/Special Village Assistant. If the date of appointment of a Village Assistant/Special Village Assistant and an L.D. Clerk happens to be the same, the inter-se- seniority shall be fixed based on their date of birth, the elder senior to the younger.” 6. As per the Special Rules for the Kerala Revenue Ministerial Subordinate Service, as amended by G.O.(P) No.567/89/RD dated 12.7.1989, the method of appointment to the post of Lower Division Clerk/Village Assistant including Special Village Assistant is (i) by direct recruitment (ii) by transfer from among Copyists upto 26.5.1982 and from Village Assistants upto 9.9.1984, (iii) by appointment of Lower Division Typists eligible for appointment as Lower Division Clerks, (iv) by appointment from Villagemen with minimum general educational qualification having three years service and from Villagemen without minimum educational qualification having five years service and (v) by appointment from Last Grade Servants/Attenders in the Land Revenue and Survey Department with minimum general educational qualification and having five years total service. Note 2 to Category No.4 in Rule 3 of -: 7 :- the Special Rules stipulates that the ratio for appointment from Villagemen and Last Grade Servants/Attenders shall be 3:2 and limited to 25% of the total posts of Village Assistants as on 9.9.1984 and 25% of 35% of the posts of Lower Division Clerks/Village Assistants thereafter. What the respondents claim is that in addition to the quota prescribed in Note 2 referred to above, they are also entitled to be promoted to 15% of the vacancies of Village Assistants arising every year in terms of the assurance held out in paragraph 8 of G.O.(P) No.911/84/RD dated 10.9.1984. 7. It is not in dispute that the Special Rules for the Kerala Revenue Ministerial Subordinate Service were amended by G.O.(P) No.567/89/RD dated 12.7.1989 pursuant to the integration of the Revenue and Village establishments brought about by G.O.(MS) No.911/84/RD dated 10.9.1984. However, while the amendment was carried out, the State did not incorporate in the Special Rules, the stipulation in paragraph 8 of G.O.(MS) No.911/84/RD dated 10.9.1984. The method of appointment to the post of Lower Division Clerk/Village Assistant including Special Village Assistant is prescribed in Rule 3 of the Special Rules for the Kerala Revenue Ministerial Subordinate Service as amended by G.O.(P) No.567/89/RD dated 12.7.1989. The Special Rules do not reserve 15% of the vacancies of Village Assistants arising every year as claimed by the respondents. Instead, Villagemen and Last Grade Servants/Attenders can be appointed only to 25% of the total posts of Village Assistants as on -: 8 :- 9.9.1984 and to 25% of 35% of the Lower Division Clerks/Village Assistants thereafter. Therefore the claim made by the respondents is not tenable. The learned Single Judge, in our opinion, was therefore not right in directing the appellants to retrospectively promote Villagemen to 15% of the vacancies of Village Assistants arising every year, after the introduction of the Special Rules. 8. We notice that by G.O.(P) No.456/07/RD dated 31.12.2007, Rule 3 of the Special Rules for the Kerala Revenue Ministerial Subordinate Service was again amended by substituting Note 2. Note 2 as amended reads as follows: “Note 2:- The ratio for appointment from Villagemen and Last Grade Servants/Attenders shall be 3:2 and limited to 25% of the total posts of Village Assistants as on 9.9.1984 and 25% of 35% of the total posts of L.D. Clerks/Village Assistants upto 5th December, 2006. From 6th December, 2006, 15% of the total posts of L.D. Clerk/Village Assistants shall be filled from among qualified Villagemen and Last Grade Servants/Attenders at the ratio of 3:2 between them. In the absence of qualified Villagemen and Last Grade Servants/Attenders, the posts shall be filled up by direct recruitment.” 9. After the amendment to the Special Rules introduced by the Government order dated 31.12.2007, Villagemen and Last Grade Servants/Attenders are entitled only to 25% of the total posts of Village Assistants as on 9.9.1984 and 25% of 35% of the total posts of Lower -: 9 :- Division Clerk/Village Assistant upto 5.12.2006. From 6.12.2006 onwards, 15% of the total posts of Lower Division Clerks/Village Assistants have to be filled up from among qualified Villagemen and Last Grade Servants/Attenders in the ratio of 3:2. It is also stipulated that in the absence of qualified Villagemen and Last Grade Servants/Attenders, the posts shall be filled up by direct recruitment. We notice that the prescription in the Special Rules for the Kerala Revenue Ministerial Subordinate Service as amended by G.O.(P) No.5678/89/RD dated 12.7.1989 and G.O.(P) No.456/07/RD dated 31.12.2007, has not been challenged by the respondents. In our opinion, as the respondents have not challenged the validity of the Special Rules, they are entitled only to the quota reserved for them in the Special Rules, as amended from time to time. 10. In the view that we have taken, the direction issued by the learned Single Judge to retrospectively promote Villagemen to 15% of the vacancies of Lower Division Clerks/Village Assistants including Special Village Assistant, arising every year after the introduction of the Special Rules, namely, with effect from 10.9.1984, cannot be sustained. in our considered opinion, Villagemen in the Village establishment which was integrated with the Revenue establishment with effect from 10.9.1984, can claim promotion to the category of Lower Division Clerk/Village Assistant including Special Village Assistant only in terms of the prescription in Note 2 to Category No.4 in Rule 3 of the Special Rules for -: 10 :- the Kerala Revenue Ministerial Subordinate Service. They can claim promotion along with Last Grade Servants/Attenders only to 25% of the total posts of Village Assistants as on 9.9.1984 and to 25% of 35% of the total posts of Lower Division Clerks/Village Assistants upto 5.12.2006. From 6.12.2006 onwards, 15% of the total posts of Lower Division Clerks/Village Assistants have to be filled up from among qualified Villagemen and Last Grade Servants/Attenders in the ratio of 3:2. The respondents have no case that Villagemen were not given promotion in accordance with the Special Rules. What they claim is promotion to 15% of the total number of vacancies of Village Assistants arising every year in addition to the quota prescribed in the Special Rules. In the light of the stipulation in the Special Rules, we are of the considered opinion that the respondents cannot claim or be granted the reliefs sought for by them. Villagemen along with Last Grade Servants/Attenders are entitled to 15% of the total posts of Lower Division Clerks/Village Assistants only with effect from 6.12.2006 as stipulated in Note 2. The direction issued by the learned Single Judge cannot therefore be sustained. 11. In the result, we allow W.A.Nos.640 and 708 of 2008, set aside the judgment of the learned Single Judge and declare that the petitioners in W.P.(C) No.31791 of 2003 and W.P.(C) No.9590 of 2004 and Villagemen similarly placed can claim promotion to 15% of the total number of posts of Lower Division Clerk/Village Assistant only with effect from 6.12.2006, subject to the stipulations in Note 2 to Category No.4 in -: 11 :- Rule 3 of the Special Rules for the Kerala Revenue Ministerial Subordinate Service, as amended by G.O.(P) No.456/07/RD dated 31.12.2007. J.B. Koshy, Acting Chief Justice. P.N.Ravindran, Judge. ess 9/12