IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 21ST JULY 2010 / 30TH ASHADHA 1932 WP(C).No. 3570 of 2007(Y) ------------------------- PETITIONER(S): ----------------------- 1. B. VENUGOPALAN, S/O.BALAKRISHNAN. R., UPPER DIVISION CLERK, BLOCK DEVELOPMENT OFFICE HARIPAD, RESIDING AT `BHAGYA SREE', PUTHIYAVILA, PATTOLI MARKET P.O., KAYAMKULAM, ALAPPUZHA DISTRICT. 2. MONACHAN. T., UPPER DIVISION CLERK, BLOCK DEVELOPMENT OFFICE, MUTHUKULAM, ALAPPUZHA DISTRICT. 3. SHERAFUDHEEN A., UPPER DIVISION CLERK, BLOCK DEVELOPMENT OFFICE, MUTHUKULAM, RESIDING AT S.S.MANZIL, KEERKKAD SOUTH, KAYAMKULAM P.O., ALAPPUZHA DISTRICT. BY ADV. SRI.K.RAMAKUMAR, SENIOR ADVOCATE SRI.RAMPRASAD UNNI.T. RESPONDENT(S): ----------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE SECRETARY TO RURAL DEVELOPMENT DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 3. THE PRINCIPAL SECRETARY TO LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 4. THE KERALA PUBLIC SERVICE COMMISSION, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY. GOVERNMENT PLEADER SRI.ANTONY MUKATH FOR R2 SRI.P.C.SASIDHARAN, SC, PSC THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/07/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.3570/07 APPENDIX PETITIONERS' EXHIBITS EXT.P1: TRUE COPY OF THE REPRESENTATION DT. 23.1.2006 SUBMITTED BY THE PETITIONERS. EXT.P2: TRUE EXTRACT OF THE NOTIFICATION PUBLISHED BY THE PUBLIC SERVICE COMMISSION APPEARED IN THE MATHRUBHUMI THOZHIL VARTHA DT 22.5.2010. //TRUE COPY// P.A. TO JUDGE Rp ANTONY DOMINIC, J. ================ W.P.(C) NO. 3570 OF 2007 (Y) ===================== Dated this the 21st day of July, 2010 J U D G M E N T Petitioners are Upper Division Clerks in the Ministerial wing of the Rural Development Department. The challenge in this writ petition is against Rule 2 of the Special Rules of Kerala General Service for appointment to the post of Block Development Officer notified by GO(P) No.7/67/PD dated 17/1/1967. According to the petitioners, ministerial employees like them are not included in the feeder category for by transfer appointment to the post of Block Development Officer, and for that reason, the Rule is discriminatory and is unconstitutional. 2. However, from the counter affidavit filed, the stand taken by the respondents is that the Special Rules were framed as early as in 1967. Till 1993, there was no ministerial wing as such in the Rural Development Department and the ministerial wing was constituted only w.e.f. 1/5/93. Therefore, there was no occasion for the Rule making authority for inclusion of the employees of the ministerial wing at the time when the Special Rules were framed. It is also stated that the normal avenues of WPC No. 3570/07 :2 : promotion to the post of Clerk, Junior superintendent etc are available to the Upper Division Clerks like the petitioner in the Rural Development Department. It is pointed out that the respondents have already taken steps for amendment of the Special Rules providing 8% of the posts in the BDO category for employees in the ministerial wing, and that, the amendment is under the active consideration of the Government. 3. When a Special Rule is framed, it is for the appointing authority to decide, in what manner, the posts are to be filled up, and which all categories are to be included in the feeder categories. Unless this inclusion is ex facie, arbitrary or is discriminatory, this Court cannot interfere and direct that additional categories should be included, or that the exclusion of any category is discriminatory. To hold that a category of employees has been wrongly excluded, this Court should have the materials to conclude that the excluded category is similarly situated in all respects both qualitatively and quantitatively. In this case, there is dearth of materials in that behalf. and therefore, this Court cannot safely come to a conclusion that there is discrimination on the part of the respondents. In that view of the matter, I am not persuaded to interfere with the WPC No. 3570/07 :3 : Special Rules. This is all the more so for the reason that though the Special Rules were formulated in 1967, the ministerial wing itself came into existence only in 1993, and therefore, amendment of the Special Rules alone can remedy the situation. 4. From the pleadings, it is seen that recognizing this fact, Government have already initiated proceedings for amending the Special Rules providing 8% reservation in the category of Block Development Officers for employees in the ministerial wing, like the petitioners. Therefore, in the factual situation of this case, the only direction that is called for, is to direct that the process of amendment to the Special Rules, which is already initiated by the respondents, shall be expedited and final decision in the matter shall be taken as expeditiously as possible. It being a legislative exercise, I restrain from fixing any time limit, but direct that the matter shall be expedited in the manner as directed above. Writ petition is disposed of as above. ANTONY DOMINIC, JUDGE Rp