IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 10TH JUNE 2011 / 20TH JYAISHTA 1933 WP(C).No. 10095 of 2008(B) -------------------------- PETITIONER: --------------- HARIDASAN ,C., FOREST GUARD, CENTRAL NURSERY RANGE, VALLUVASSERRY, NILAMBUR. BY ADV. SRI.S.KRISHNAMOORTHY RESPONDENTS: ----------------------- 1. STATE OF KERALA REP.BY ITS SECRETARY, FOREST & WILD LIFE (F) DEPARTMENT, GOVT, SECRETARIATE, THIRUVANANTHAPURAM. 2. CHIEF CONSERVATOR OF FOREST (ADMN.) FOREST HEAD QUARTERS, THIRUVANANTHAPURAM. *3. MUHAMMED HASIM K.A., FOREST GUARD, OMMALA FOREST STATION, KALKANDY P.O., (AGALI RANGE, MANNARKKAD DIVISION), PALAKKAD DISTRICT. * R3 IMPLEADED AS PER ORDER DATED 10-06-2011 IN IA No.13438/2008) R1 & R2 BY SMT. SMITHA SUKUMARAN, GOVT. PLEADER R3 BY ADV. SRI.KALEESWARAM RAJ . THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/06/2011, ALONG WITH WPC NO. 35147 OF 2008 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P (C) No.10095/2008 -2- APPENDIX PETITIONER'S EXHIBITS EXT.P1 – TRUE COPY OF G.O. (RT) No.115/2008/F&WLD DATED 01-03-2008. RESPONDENTS EXHIBITS NIL //TRUE COPY// P.A. TO JUDGE AMG S. SIRI JAGAN, J. ----------------------------------------------------- W.P (c) No.10095 OF 2008 & W.P (c) No.35147 OF 2008 ----------------------------------------------------- DATED THIS THE 10th DAY OF JUNE, 2011 JUDGMENT In these writ petitions the petitioners are Forest Guards working in the Forest Department. They aspire for promotion to the post of Forester. As per the recruitment rules 25% vacancies in the post of Forester are reserved for being filled up from among forest guards. The recruitment rules provided that the person who comes out with first rank in the Forester training conducted by the Government would be entitled to preference in the matter of such promotion. The petitioners would submits that that stipulation itself is arbitrary but they have not challenged the same. In this writ petition they are challenging the further preference given to the second rank holder as well, by Ext.P1 Government order. In 2009 the additional respondent in these writ petitions was appointed invoking Ext.P1 Government order as the second rank holder in the forester's training. The petitioners' contention is that the WP (C) Nos.10095 & 35147/2008 -2- recruitment rules provides only for preference to the first rank holder and the recruitment rules have not yet been amended by the Government. According to them Ext.P1 is only an executive order and it is settled law that an executive order cannot amend or override the statutory rule. Therefore, according to the petitioners the preference in promotion given to the additional respondent in the promotions in 2009 is against the special rules and therefore liable to be quashed. The petitioners seeks the following reliefs: (i) To issue a writ of certiorari or other appropriate writ, order or direction quashing Ext.P1 order; (ii) to issue a writ of mandamus or other appropriate writ, order or direction declaring that the promotion granting to the Forest Guards securing 2nd ranks in the Forest Guards training, superseding the seniority is highly illegal and arbitrary; (iii) to issue a writ of mandamus or other appropriate writ, order or direction directing the respondents to abide by the present Recruitment Rules namely the Kerala Forest Subordinate Service Rule, 1963 in the matter of promotion. 2. The contention of the 1st respondent is that Ext.P1 contains a policy decision of the Government to give WP (C) Nos.10095 & 35147/2008 -3- preference to the second rank holder also, which decision was taken considering the 50th anniversary of the formation of the Kerala State, as a special concession. The respondent would contend that such policy decision of the Government cannot be interfered with by this Court. The counsel for the additional respondent would contend that Ext.P1 Government order only amounts to supplementing the statutory rules which is permissible, as laid down the Division Bench of this Court in Mohanan V. Prakasan (1997 (2) KLT 482). The counsel for the additional respondent would also contend that he has been given promotion rightfully in accordance with the Government order as early as in 2009 and it is totally unjust and inequitable to interfere with his promotion for no fault of the additional respondent. 3. I have considered the rival contentions in detail. 4. It is not disputed before me that as per the special rules applicable for the post of Forester, only the first rank holder in the forester's training is eligible for preference. The preference given to the second rank holder is WP (C) Nos.10095 & 35147/2008 -4- admittedly on the basis of Ext.P1 Government order. Exhibit P1 Government order is only an executive order. Even a policy decision of the Government has to be translated into law by incorporating the policy decision in the rules applicable. Unless and until that policy decision takes the form of a Rule the same cannot be implemented contrary to a statutory prescription. Here, when the statutory rules provide only for preference to the first rank holder in Forester's training. I do not think that the Government can issue an order like Ext.P1 contrary to the Special Rules stipulating that the second rank holder also will be entitled to preference. Of course, it is perfectly open to the Government to incorporate the policy decision Ext.P1 in the rules, but unless and until Ext.P1 decision is implemented by amending the special rules, I do not think that Ext.P1 can be validly relied upon for making promotions giving preference to the second rank holder in forester training also. 5. Therefore, I am of the opinion Ext.P1 can either be relied upon nor amend the recruitment rules. As such WP (C) Nos.10095 & 35147/2008 -5- Ext.P1 Government order cannot be relied upon for making promotions to the post of forester in the 25% quota reserved for forest guards. The reliance by the additional respondent on the decision in Mohanan V. Prakasan (cited supra) is misplaced. The same only lays down that the Government can issue an order granting additional marks to qualifications like S.S.L.C in cases where the minimum qualification prescribed is less than the S.S.L.C qualification. It is in that context the Division Bench held that Government order only supplements the statutory rules. There only a weightage is given to persons having additional qualifications which cannot be said to be contrary to the special rules. Here, the person who does not otherwise has the entitlement for preference as per rules is given a preference contrary to rules. As such the said decision is squarely distinguishable on facts. 6. In the above circumstances the Petitioners are entitled to succeed in these writ petitions. Accordingly it is declared that for the purpose of granting of promotions to the post of Forester in the 25% vacancy set apart for Forest WP (C) Nos.10095 & 35147/2008 -6- Guards Ext.P1 order cannot be given effect to by granting preference to the second rank holder in the forester's training. Consequently the promotion given to the additional respondent being contrary to the rules has to be revised accordingly by considering him along with the others without giving him preference stipulated in Ext.P1. Orders in this regard shall be passed as expeditiously as possible at any rate within 2 months from the date of receipt of a copy of this judgment. The writ petition is allowed as above. Sd/- S. SIRI JAGAN, JUDGE. AMG True copy P.A to Judge