IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 20TH OCTOBER 2008 / 28TH ASWINA 1930 WA.No. 431 of 2008() ------------------------------ AGAINST THE JUDGEMENT/ORDER IN WPC.19245/2005 Dated 03/08/2007 .................... APPELLANT(S): APPELLANT: ------------------------ P. CHANDRASEKHARAN, WORKING AS P.A. TO THE DISTRICT DEVELOPMENT OFFICER FOR SCHEDULED CASTE (NOW REDESIGNATED AS ASSISTANT DISTRICT DEVELOPMENT OFFICER FOR SCHEDULE CASTE),RESIDING AT ASWATHY,P.O.MUTTATHODY KASARGOD DISTRICT. BY ADV. SRI.P.CHANDRASEKHAR RESPONDENT(S): RESPONDENTS: --------------------------- 1. KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, PATTOM, THIRUVANANTHAPURAM. 2. THE STATE OF KERALA, REPRESENTED BY SECRETARY, DEPARTMENT OF SCHEDULED CASTE AND SCHEDULED TRIBE DEVELOPMENT,SECRETARIAT, TRIVANDRUM. GOVERNMENT PLEADER THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 25/07/2008, ALONG WITH WA NO. 2245 OF 2007 WPC NO. 29289 OF 2007 THE COURT ON 20/10/2008 DELIVERED THE FOLLOWING: J.B.KOSHY & P.N.RAVINDRAN,J J. ====================================== W.A.Nos.2245 of 2007, 431 of 2008 & W.P.(C) No.29289 of 2007 ====================================== Dated this the 20th day of October 2008 Ravindran,J. As common question arise in the two writ appeals and the writ petition, they were heard together and are being disposed of by this common judgment. 2. Writ Appeal Nos.2245 of 2007 and 431 of 2008 arise from the judgment of the learned single judge in W.P.(C) No.21024 of 2005 and W.P.(C) No.19245 of 2005 respectively. The appellants are the petitioners in the respective writ petitions. By judgment delivered on 5.7.2006, the learned single judge dismissed W.P.(C) 21024 of 2005. By judgment delivered on 3.8.2007, another learned single jduge dismissed Writ Petition (C) No.19245 of 2005. When the writ appeals came up for hearing, the learned counsel appearing for the appellants brought to our notice that identical question has arisen for consideration in W.P.(C)No.29289 of 2007. Therefore the said writ petition was also called for and heard along with the writ appeals. 3. The appellant in Writ Appeal No.2245 of 2007 is presently W.A.No.431/2008 & conn.cases 2 working as Assistant District Probation Officer Grade I. He entered service as Assistant Grade II in the Kerala Agricultural University on 3.8.1989. He was promoted as Assistant Grade I with effect from 1.8.1993 and he continued in service in the Kerala Agricultural University till 6.4.1995. He was appointed as District Probation Officer Grade II, a post borne in the Social Welfare Subordinate Service with effect from 7.4.1995. He was appointed as Child Development Project Officer with effect from 31.8.1998 and was promoted as District Probation Officer Grade I with effect from 4.11.2000. 4. The appellant in Writ Appeal No.431 of 2008 is presently working as Assistant District Development Officer for Scheduled Castes in Kasargode District. Formerly his designation was Personal Assistant to the District Development Officer for Scheduled Castes. 5. The petitioner in W.P.(C)29289 of 2007 is presently working as District Development Officer for Scheduled Castes in Kasargode District. He was formerly working as Personal Assistant to District Development Officer for Scheduled Castes which post was later re- designated as Assistant District Development Officer for Scheduled Castes. 6. By Ext.P1 notification, the Kerala Public Service Commission W.A.No.431/2008 & conn.cases 3 invited applications from eligible persons for appointment to the post of Administrative Officer Grade II in various departments. The method of appointment and the qualifications for the post of Administrative Officer Grade II, set out in Ext.P1 are as follows: Method of Appointment and Qualifications:- Recruitment from the Officers in the grade of Senior Superintendent, Office Manager and other non technical officers in the scale of Rs.6500-10550 or higher scale of pay in all departments (excluding Administrative, Finance, Law and Legislature Secretariat, Revenue Department and Officers of the Kerala Public Service Commission, Advocate General, High Court and Examiner of Local Fund Accounts) who have put in not less than 3 years service in a supervisory post carrying the scale of pay of Rs.6500-10550 or Higher. The Supervisory experience required is full time supervisory work in an office and not the type of supervisory work which an officer with executive functions also, exercises in an office i.e. the term `Supervisory Post' means holding of a post in a supervisory capacity in the ministerial line and not the type of supervision over an office exercised by officers holding executive assignment (vide G.O. (MS)No.140/76/PD dated 15.5.1976). 7. At the time when Ext.P1 notification was issued, the appellant in Writ Appeal No.2245 of 2007 was working as District Probation Officer Grade I, the appellant in Writ Appeal No.431 of 2008 and the petitioner in W.P.(C)No.29289 of 2007 were working W.A.No.431/2008 & conn.cases 4 as Personal Assistant to District Development Officer for Scheduled Castes (later re-designated as Assistant District Development Officer for Scheduled Castes). The appellants and the writ petitioner applied pursuant to Ext.P1 notification. Their applications were rejected on the short ground that they do not have 3 years service in a supervisory post in the ministerial line. The Kerala Public Service Commission resisted the writ petitions from which the writ appeals arise contending inter alia that the post of District Probation Officer/Child Development Project Officer/Personal Assistant to District Development Officer for Scheduled Castes are not supervisory posts in the ministerial line. Accepting the said contention, the learned single judge dismissed the writ petitions holding that the appellants are not eligible to apply for the post of Administrative Officer Grade II. The short question that arises for determination is whether the post of District Probation Officer/Child Development Project Officer/Personal Assistant to District Development Officer for scheduled Castes (later re-designated as Assistant Development Officer for scheduled castes) are supervisory posts in the ministerial line. 8. Ext.P1 notification states that the supervisory experience W.A.No.431/2008 & conn.cases 5 required is full time supervisory work in an office and not the type of supervisory work which an officer with executive functions also exercises in an office. Ext.P1 further states that supervisory post has to be in the ministerial line and that the supervision contemplated is not the type of supervision in an office exercised by officers holding executive assignment. Ext.P1 also refers to G.O. (MS) 140/76/PD dated 15.5.1976. A copy of the said government order, is on record as Ext.P2 in W.P.(C) No.29289 of 2007. Ext.P2 discloses that it was issued pursuant to the directions issued by this Court in O.P.No.3501 of 1974 and connected cases. The operative portion of Ext.P2 reads as follows: Government have carefully examined all the orders issued by them in the matter of selection and appointment to the post of Administrative Officers. It is clear that all along the intention of the Government has been to make selection to such posts from among officers in the grade of Senior Superintendents, Office Manager etc. who have come up from the ministerial cadres. The supervisory experience required is full time supervisory work in an office and not the type of supervisory work which an officer with executive functions also exercises in an office. Hence in clarification of the G.O.s read above Government order that W.A.No.431/2008 & conn.cases 6 the term supervisory post means holding of a post in a supervisory capacity in the ministerial line and not the type of supervision over an office exercised by officers holding executive assignments.” 9. The pleadings disclose that after Ext.P2 was issued, the very same issue was considered by this Court in Writ Appeal No.868 of 1993. A copy of the judgment in W.A.No.868 of 1993 is produced as Ext.P20 in W.P.(C)29289 of 2007. The issue that arose before the Division Bench in Writ Appeal No.868 of 1993 was whether the appellant therein, who was working as Personal Assistant to Tribal Development Officer, was eligible to be appointed as Administrative Officer Grade II. The Division Bench of this Court in Ext.P20 judgment noticed that after Ext.P2 government order was issued, the Kerala Public Service Commission had written to the State Government on 15.1.1990 seeking a clarification as to whether the 12 categories of posts referred to by the Kerala Public Service Commission in that letter fell within the purview of Ext.P2 government order dated 15.5.1976. A copy of the letter dated 15.1.1990 sent by the Kerala Public Service W.A.No.431/2008 & conn.cases 7 Commission to the State Government seeking clarification in the matter is on record as Annexure R2(a) in Writ Appeal No.431 of 2008. The 12 posts in respect of which the Kerala Public Service Commission had sought clarification are as follows: Sl. Name of Department Name of Post No. 1. Tribal Development Department Tribal Development Officer 2. Office of the Deputy Transport Commissioner Joint R.T.C. 3. Finance, National Savings Asst.Director of National Directorate Department Savings 4. Insurance Medical Service Lay Secretary 5. Rural Development Dept. Asst.Project Officer 6. A.I.T. & S.T. Department Agricultural Income Tax Officer 7. Kerala General Service, PWD, H.E. Department etc. Divisional Accountant 8. Social Welfare Department 1. Dist.Social Welfare Officer, Grade I 2. Dist.Probation Officer Grade I 3. Asst.Project Manager 4. Child Development Project Officer W.A.No.431/2008 & conn.cases 8 9. Printing Department District Forms Officer 10. Scheduled Caste Development P.A. to the District Department Development Officer 11. Kerala Criminal Judicial Dept. Judicial Ist Class Magistrate 12. State Planning Board Plan Publicity Officer 10. From Annexure-R2(a) letter sent by the Kerala Public Service Commission, it is evident that the Kerala Public Service Commission had sought a clarification as to whether Personal Assistant to the District Development Officer in the Scheduled Caste Development Department is holding a supervisory post or not. Annexure R2(a) also discloses that the very same query was made in respect of the post of Child Development Project Officer and District Probation Officer Grade I in the Social Welfare Department. The reply sent by the State Government to Annexure-R2(a) is produced as Annexure R2(b) in Writ Appeal No.431 of 2008. The State Government has in Annexure R2(b) clarified that the categories of posts mentioned in the statement appended to that letter are executive in nature and do not come under the purview of Ext.P2 government order dated 15.5.1976. The posts mentioned in Annexure R2(b) are as follows: W.A.No.431/2008 & conn.cases 9 Sl. Name of Department Name of Post No. 1. Tribal Development Department Tribal Development Officer 2. Office of the Deputy Transport Commissioner Joint R.T.C. 3. Finance, National Savings Asst.Director of National Directorate Department Savings 4. Insurance Medical Service Lay Secretary 5. Rural Development Dept. Asst.Project Officer 6. A.I.T. & S.T. Department Agricultural Income Tax Officer 7. Kerala General Service, PWD, H.E. Department etc. Divisional Accountant 8. Social Welfare Department 1. Dist.Social Welfare Officer Grade I 2. Dist.Probation Officer Grade I 3. Asst.Project Manager 4. Child Development Project Officer 9. Printing Department District Forms Officer 10. Scheduled Caste Development P.A. to the District Department Development Officer 11. Kerala Criminal Judicial Dept. Judicial Ist Class Magistrate 12. State Planning Board Plan Publicity Officer W.A.No.431/2008 & conn.cases 10 11. A reading of Annexure R2(b) clarifies that the posts of District Probation Officer Grade I, Child Development Project Officer in the Social Welfare Department and the post of Personal Assistant to the District Development Officer in the Scheduled Caste Development Department are executive posts. The Division Bench of this Court in Writ Appeal No.868 of 1993 considered Annexure R2(a) letter sent by the Kerala Public Service Commission to the State Government and the reply sent by the State Government to the Kerala Public Service Commission evidenced by Annexure-R2(b) and held that as the post of Personal Assistant to Tribal Development Officer in the Tribal Development Department is not included in the categories of posts mentioned either in Annexure R2 (a) or in Annexure R2(b), it can be held that the Kerala Public Service Commission did not have any doubt that the post of Tribal Development Officer was not a supervisory post. It was held that the rejection of the appellant's application was therefore invalid. In the light of the fact that pursuant to the interim direction issued in the Original Petition, the appellant therein had appeared for the test and the interview and in view of the fact that by virtue of the W.A.No.431/2008 & conn.cases 11 marks secured by him, he was entitled to be included between candidates ranked 11 and 12 in the ranked list, the Division Bench in Ext.P20 judgment directed the Kerala Public Service Commission to advise the appellant taking note of the fact that he is entitled to be ranked between the candidates ranked 11 and 12, in the ranked list. 12. The learned Single Judge dismissed the writ petitions from which these writ appeals arise on the ground that in view of the stand taken by the Government in Annexure R2(b) which was not under challenge in the writ petitions, the rejection of the application submitted by the appellants was proper. 13. We have considered the submissions made at the Bar by Sri.P.Chandrasekhar, the learned counsel appearing for the appellant, Sri.Alexander Thomas, the learned standing counsel appearing for the Kerala Public Service Commission and Sri.Benny Gervacis, the learned Government Pleader appearing for the State of Kerala. The appellant in Writ Appeal No.2245/2007 was working as District Probation Officer Grade I, when he applied pursuant to Ext.P1. He was appointed as District Probation Officer Grade II in the Social W.A.No.431/2008 & conn.cases 12 Welfare Department on 7.4.1995 and promoted as Child Development Project Officer on 31.8.1998. He was thereafter promoted as District Probation Officer Grade I on 4.11.2000. Going by the stand taken by the State Government in Annexure R2(b), the post of Child Development Project Officer and District Probation Officer Grade I are not supervisory posts, but executive posts. The appellant in Writ Appeal No.2245 of 2007 mainly relies on the decision of the Division Bench of this Court in Writ Appeal No.868 of 1993 to contend that as Personal Assistant to Tribal Development Officer was held to be holding a supervisory post in the ministerial line, he is also eligible to be considered for selection. In our opinion, as the appellant in W.A.No.2245 of 2007 has not chosen to challenge Annexure R2(b), the rejection of his application by the Kerala Public Service Commission cannot be said to be illegal. Further pursuant to Ext.P1, the ranked list evidenced by Ext.P17 was published on 2.6.2005. The list ceased to be in force on 1.6.2008. None of the selected persons are on the party array, even in a representative capacity. Therefore, for that reason also, no relief can be granted to the appellant in Writ Appeal No.2245 W.A.No.431/2008 & conn.cases 13 of 2007. 14. The appellant in Writ Appeal No.431 of 2008 was holding the post of Personal Assistant to District Development Officer for Scheduled Castes at the time when he applied for the post of Administrative Officer Grade II pursuant to Ext.P1 notification. His application was also rejected on the ground that the post held by him is not a supervisory post in the ministerial line. Going by Annexure R2(b), the post of Personal Assistant to District Development Officer for Scheduled Castes is not a supervisory post, but an executive post. Though the learned counsel for the appellant relying on the decision of the Division Bench of this Court in Writ Appeal No.868 of 1993 contended that if the post of Personal Assistant to District Tribal Development Officer is a supervisory post in the ministerial line, there is no reason to hold that the post of Personal Assistant to District Development Officer for Scheduled Castes is an executive post and we find much force in the submission, as Annexure R2(b) is not under challenge and as the ranked list has ceased to be in force on 1.6.2008 and also for the reason that no one of the selected candidates are on the party W.A.No.431/2008 & conn.cases 14 array, even in a representative capacity, no relief can be granted to the appellant in Writ Appeal No.431 of 2008 at this distance of time. 15. The petitioner in W.P.(C)No.29289 of 2007 was also working as Personal Assistant to District Development Officer for Scheduled Castes when he applied for the post of Administrative Officer Grade II pursuant to Ext.P1 notification. Though the petitioner has challenged Annexure- R2(b), a copy of which is produced and marked as Ext.P18 in the writ petition, as the ranked list ceased to be in force on 1.6.2008 and as no one of the selected candidates are of the party array even in a representative capacity, no relief can be granted to the petitioner at this distance of time. For the reasons stated above, we hold that there is no merit in the Writ Appeals and in the writ petition. They are accordingly dismissed. J.B.KOSHY, JUDGE P.N.RAVINDRAN, JUDGE css/