IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 7TH APRIL 2009 / 17TH CHAITHRA 1931 WP(C).No. 8425 of 2009(W) ------------------------- PETITIONER(S): --------------- V.P.PRASAD,ASSISTANT TALUK SUPPLY OFFICER,TALUK SUPPLY OFFICE,CHANGANACHERRY, KOTTAYAM DIST. BY ADV. SRI.KALEESWARAM RAJ RESPONDENT(S): --------------- 1. STATE OF KERALA,REPRESENTED BY SECRETARY TO GOVERNMENT DEPARTMENT OF FOOD & CIVIL SUPPLIES SECRETARIAT,THIRUVANANTHAPURAM. 2. THE COMMISSIONER OF CIVIL SUPPLIES, THIRUVANANTHAPURAM. 3. J.MURALEEKRISHNA TALUK SUPPLY OFFICER, TALUK SUPPLY OFFICE, UDUMBANCHOLA, IDUKKI DIST. ADV. SRI.M.K.DAMODARAN, SENIOR ADVOCATE FOR R3 SRI.P.K.VIJAYAMOHANAN FOR R3 SRI.GILBERT GEORGE CORREYA FOR R3 SMT.ASHA KAIMAL FOR R3 SRI.RANJITH THAMPAN,ADDL.ADVOCATE GENER FOR R1 & R2 GOVERNMENT PLEADER, SRI.SANDESH RAJA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/04/2009 THE COURT ON 07/04/2009 DELIVERED THE FOLLOWING: WP(C).No. 8425 of 2009 A P P E N D I X PETITIONER'S EXTS: EXT.P1 TRUE COPY OF THE SELECT LIST PUBLISHED BY THE CONVENOR OF DPC WHICH WAS PUBLISHED IN THE KERALA GAZETTE DATED 1/12/2008. EXT.P2 TRUE COPY OF THE ORDER DATED 02/03/2009 ISSUED BY THE SECOND RESPONDENT EXT.P3 TRUE COPY OF G.O.(RT).NO.398/2008 DATED 15/11/2008 AND GO.O(RT).NO.280/2007 DATED 4/07/2007 EXT.P4 TRUE COPY OF THE DISABILITY CERTIFICATE DATED 23/03/2007. EXT.P5 TRUE COPIES OF PROMOTION ORDERS GRANTED TO AN INCUMBENT SRI.KRISHNASWAMY BY WAY OF GO(P)NO.1554/2008 DATED 8/8/2008 EXT.P6 TRUE COPY OF THE ORDER DATED 6/1/2009 EXT.P7 COPY OF THE LETTER DATED 26/03/2009 ISSUED BY THE DEPUTY DIRECTOR, DIRECTORATE OF CENSUS OPERATIONS, KERALA. EXTS OF RESPONDENT NO.3:- EXT.R3(a) TRUE COPY OF THE GOVERNMENT ORDER NO.GO.(MS).506/62/PD DATED 03/10/1962 EXT.R3(b) TRUE COPY OF THE GOVERNMENT ORDER G.O.(MS).NO.110 DATED 21/03/1966 EXT.R3(c) TRUE COPY OF THE GOVERNMENT CIRCULAR NO.59625/H1/85/GAD DATED 14/01/1986 WP(C).No. 8425 of 2009 EXT.R3(d) TRUE COPY OF THE CERTIFICATE NO.MLT 513 ISSUED BY THE KERALA PUBLIC SERVICE COMMISSION ON 28/11/2008 EXT.R3(e) TRUE COPY OF THE PROCEEDINGS ON TRANSFER OF THE CHARGE DATED 03/03/2009. EXTS.OF RESPONDENT NO.2:- EXT.R2(a) A TRUE COPY OF THE ORDER IN GO(MS).NO.110/PUBLIC (RULES)DEPARTMENT DATED 21/03/1966 EXT.R2(b) A TRUE COPY OF THE CIRCULAR NO.59625/N1/85/GAD DATED 14/1/1986. \\TRUE COPY// P.A TO JUDGE T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.8425 of 2009-W - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 7th day of April, 2009. JUDGMENT The writ petition involves an interpretation of Rule 9(d) of the Kerala State and Subordinate Service Rules, 1958. The petitioner who is working as Assistant Taluk Supply Officer, is challenging Ext.P2 order by which the third respondent was promoted as Taluk Supply Officer after giving the benefit of Rule 9(d) even though the petitioner is senior to him. 2. The necessary facts for the disposal of the case are the following: In the select list published by the Convener of the Departmental Promotion Committee on 1.12.2008, the petitioner is serial No.36. It is averred that the candidates upto serial No.34 have already been promoted as Taluk Supply Officers and the petitioner is the third incumbent remaining in the select list to be promoted as Taluk Supply Officer. 3. The third respondent was promoted for filling up the vacancy which arose in Udumbanchola Taluk Supply Office based on his acquisition of Tamil Minority Language Test. It is contended that the power under Rule 9(d) could not be invoked when admittedly so many seniors are yet to be promoted. It is pointed out that the provision is not wpc 8425/2009 2 controlled by any specific guidelines in the matter which gives arbitrary power to the respondents to favour any employee. As the order is passed not by the Government, but by the Commissioner, Civil Supplies, the same is in violation of Rule 9(d) of the Rules itself. It was also contended that the order is passed only because of the pressure exerted by the third respondent and there are several circumstances which would show that the third respondent is so influential. 4. Respondents 2 and 3 have filed separate counter affidavits. In the counter affidavit filed on behalf of the second respondent, Exts.R2(a) and R2(b) are relied upon to show that already orders were there for exercise of the power under Rule 9(d). Going by Ext.R2(a), general orders have been issued by the Government in the matter and by Ext.R2(b) the position was re-inforced by directing all Heads of Departments to ensure that the Government instructions and orders regarding posting of officers with requisite language qualifications in linguistic minority areas in the State are properly adhered to. 5. Heard learned counsel for the petitioner Shri Kaleeswaram Raj, learned Govt. Pleader Shri Sandesh Raja for respondents 1 and 2 and learned Senior Counsel Shri M.K. Damodaran for the third respondent. For convenience, Rule 9(d) is extracted below: wpc 8425/2009 3 “Notwithstanding anything contained in these rules, or in the Special Rules if and when a vacancy arises in a post borne on the cadre of a service, class or category for appointment to which knowledge of a particular regional language is necessary in the opinion of the State Government and the person who is entitled to appointment to the post under these rules and the special rules does not possess such knowledge any other person junior to him who possesses such qualification and other qualifications, if any, prescribed under the rules may be appointed to that post; but the person so appointed shall not, by reason only of such appointment, be regarded as a probationer in such service, class or category, nor shall he acquire thereby any preferential right to future appointment to such service, class or category.” Learned counsel for the petitioner submitted that only if the Government forms an opinion each time when a vacancy arises that it is to be filled up by a person having knowledge in the particular regional language, then alone the power could be exercised. Herein, the Government has not passed any order in that regard. It is further pointed out that the seniority is a relevant criteria for promotion and herein a person far junior is getting a march over others by resort to a provision like Rule 9(d) and it cannot be justified at all. 6. While examining the question whether each time Government wpc 8425/2009 4 should exercise the power by passing separate orders after forming opinion in the matter, the relevant notification produced by the respondents can be of assistance. As per Ext.R2(a) dated 21.3.1966 the Government has specified Tamil areas for use of minority language for official purposes. The list contains local areas where 15% or more of the population speak a language different from Malayalam. Udumbanchola is one of the Taluks thus notified. Ext.R3(a) is an order dated 3.10.1962 whereby the Government ordered that only officers possessing the requisite language qualification will be considered for promotion to the various categories of posts in the areas where the predominant language is Tamil or Kannada, even though such officers may not be eligible for promotion in the order of seniority. Items 1 to 3 relates to Revenue, Police and Education departments and item 4 include all Gazetted Officers of other Departments. In Ext.R2(b) detailed instructions have been issued by the Government for filling up of Gazetted executive posts in linguistic minority areas. After referring to Rule 9(d), in para 3 of Ext.R2(b), it is noted that “despite the above provisions, in certain departments these instructions are not seen properly implemented. All Heads of Departments are therefore directed to ensure that the Government instructions and order regarding posting of officers with requisite language qualifications in linguistic minority areas in wpc 8425/2009 5 the State are properly adhered to.” In the light of the above Government Orders and notifications issued in this regard, there cannot be any doubt that these have been issued for the purpose of exercise of power under Rule 9(d) which has been introduced with retrospective effect from 1959. Even though in Rule 9(d) the words “in the opinion of the State Government” occurs, since the Government has already formed it by issuance of Exts.R2 (a), R2(b) and Ext.R3(a), the guidelines as is required for the exercise of power by the appointing authority are clearly available. In that view of the matter, there need not be any separate Government Orders while filling up each vacancy. 7. Then the other condition for the applicability of the rule is that a person who is entitled to appointment to the post under the General Rules and the Special Rules does not possess such knowledge and any other person junior to him who possesses such qualification is available. Even though the learned counsel for the petitioner vehemently contended that the Government has not indulged in any such exercise, it is clearly averred in the counter affidavit in para 6 that there were no other senior persons who have passed the Tamil language test conducted by the Public Service Commission. In the writ petition the petitioner has no case that any other person senior to the third respondent who has passed the minority Tamil wpc 8425/2009 6 language test conducted by the Public Service Commission was available and his claim was overlooked. Learned counsel for the petitioner even though contended that the details of exercise made by the Government to find out any person among the seniors are not specifically averred in para 6 of the counter affidavit, in the absence of a contention that the claims of seniors have been overlooked, the averments could be accepted. Therefore, the said contention is not sustainable. 8. Next it is contended that whenever such a vacancy arises, the respondents 1 and 2 are bound to publish notice to ascertain whether any seniors are available for promotion and in the absence of such a procedure, the order Ext.P2 cannot be supported. First of all, such a statutory exercise is not prescribed by rule 9(d). Secondly, the details of persons who have passed the test are available with the respondents. Rule 9(d) is controlled by a non-obstante clause. Therefore, once the appointing authority is convinced that going by the prescriptions of the existing Government Orders like Exts.R2(a), R2(b) and Ext.R3(a), such a person is to be appointed a person, though junior, who has passed the test can be appointed if seniors having the test qualification are not available. In that view of the matter, absence of a notice inviting applications, etc. will not vitiate the exercise of power. wpc 8425/2009 7 9. Shri M.K. Damodaran, learned Senior Counsel appearing for the third respondent submitted that all the procedures prescribed under Rule 9 (d) are satisfied in this case and the petitioner being not the next candidate for promotion even as per the select list, has no locus standi to challenge the order in question. He also invited my attention to a decision of this court in K. Ramakrishnan v. State of Kerala and another (ILR 1992 (1) Ker.737). In fact, in the above said decision this court considered the question whether the Government can grant appointment merely for the reason that the person concerned has working knowledge in the language. It was held that the qualification can be assessed only on the basis of the pass in Minority Language Test conducted by the Public Service Commission. If it is otherwise, and is left to the sweet whims and fancies of the appointing authority to see whether a particular officer has working knowledge or not, it will lead to arbitrariness. In Baburaj v. Government of Kerala (2005 (2) KLT 451), this court held that Rule 9(d) is not violative of Articles 14 and 16 of the Constitution of India. It was found thus: “In areas where the linguistic minorities are identification as a group by themselves in a proportion to the satisfaction of the State, which has been reasonably fixed at a particular ratio of the population, as already noticed, their requirements will have to be wpc 8425/2009 8 satisfied. This is the reasonableness of a classification made by Rule 9(d) of the General Rules. “ It was further held that “Rule 9(d) does not require a Government servant to stake a claim…………….The seniority between the personnel cannot be disturbed by recourse to Rule 9(d) of the General Rules, unless the senior does not possess the knowledge of language as required by the said Rule.” The dictum laid down in the above decision will not go against the conclusions taken by me earlier. Even though learned counsel for the petitioner relied upon the decision of the Apex Court in Nair Service Society v. State of Kerala (2007 (1) KHC 863), in the facts of the case, I need not go into the principles laid down therein. 10. The next question is whether the order is vitiated by malafides. Even though it is pointed out that there is reference in Ext.P2 to a representation filed by the third respondent based on which the order was passed, in view of the fact that there are no violations of the statutory stipulations and as it is specified in Ext.P2 that he will get seniority only when he gets promotion depending upon his seniority alone, no particular favour has been conferred on the third respondent. There is nothing to show that the order has been passed only because he has staked his claim. Lastly, it is contended that the provision is capable of misuse and arbitrary wpc 8425/2009 9 exercise of power, since the claim of seniors could effectively be defeated by resort to such appointment. As noted already, the power is to be exercised in the light of the various conditions to be satisfied and in view of the non-obstante clause contained in the provision itself. Once those conditions are found to be satisfied in a case, merely because a junior had to be appointed that will not lead to abuse of the power conferred. Even if the post was manned by a person who was not having Tamil Language Test as a qualification at some point of time, nothing prevents the Government from filling up a subsequent vacancy by a person having the knowledge of Tamil Language. It is also pointed out at the Bar that presently the officer is expected to issue ration cards in respect of various Tamil speaking people. In the light of the above, the order Ext.P2 does not suffer from any vitiating circumstances. Therefore, the writ petition fails and the same is dismissed. (T.R. Ramachandran Nair, Judge.) kav/