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. 22096 of 2010(J) -------------------------- PETITIONER(S): --------------- VIJAYAN.P.N, RESERVE FOREST WATCHER, DHONI SECTION, OLAVAKKODE RANGE, PALAKKAD DISTRICT. BY ADV. SRI.KALEESWARAM RAJ RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF FOREST, SECRETARIAT, THIRUVANANTHAPURAM. 2. CHIEF CONSERVATOR OF FOREST, THIRUVANANTHAPURAM. 3. THE DIVISIONAL FOREST OFFICER, PALAKKAD. MR.ARAVIND KUMAR BABU, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. ------------------------- W.P.(C.) No.22096 of 2010 (J) --------------------------------- Dated, this the 21st day of July, 2010 J U D G M E N T The petitioner is working as a Reserve Forest Watcher in the Forest Department and is governed by the Kerala Forest Subordinate Service Rules, 1962 (hereinafter referred to as Special Rules for short). The Rules provide that 10% of the posts in the cadre of Forest Guard are earmarked for recruitment by transfer from among employees including Watchers. However, Rule 5(I)(ii) of the Special Rules further provides that no Watcher shall be eligible for appointment as Forest Guard if he has completed 50 years of age on the date of appointment. The petitioner has crossed the age of 50 years and therefore, is ineligible to be appointed as Guard. It is in these circumstances, he has filed this writ petition inter alia challenging Rule 5(I)(ii) of Ext.P3 Special Rules. 2. Contention of the learned counsel for the petitioner is that the effect of Rule 5(I)(ii) of the Special Rules prohibiting appointment of Watchers who have completed 50 years of age on WP(C) No.22096/2010 -2- the date of appointment, is that employees who are seniors in the category of Watchers are denied further avenues of appointment. It is also his case that the Rule makes a Watcher ineligible for appointment as Forest Guard, if he has completed 50 years of age on the date of appointment and therefore, if appointment is deliberately delayed, that will deprive the chances of Watchers for appointment. He has also referred to Ext.P4, and contended that one Mr.P.N.Vijayan, who has been appointed as Forest Guard by the said order had completed 51 years and therefore the Rule having not been implemented or having been relaxed in that case, such benefit should be granted to him also. 3. As already seen, Special Rules provide that 10% of the vacancies in the category of Forest Guard is earmarked for recruitment by transfer of employees belonging to lower categories including Watchers. However the appointing authority made such appointment subject to the condition that the candidate shall not have completed 50 years of age as on the date of his appointment. The rule making authority has the freedom to fix the conditions to be satisfied by an employee for appointment, promotion, etc. WP(C) No.22096/2010 -3- Unless such prescriptions are in violation of any Constitutional or plenary statute or the fundamental rights of the employee concerned, such rules cannot be interfered with by this Court. It cannot be said that fixation of upper age limit either for recruitment or for promotion will attract any of these vitiating factors. Therefore, the fact that an upper age limit has been fixed and in the process, seniors who have been working in the category of Watchers will lose opportunity for being appointed as Guard, is not a reason to invalidate the Rule. At best, this may be a case of an individual hardship, which even if true, will not vitiate the Rule. 4. Insofar as the contention of the learned counsel for the petitioner that since the eligibility prescribed is that the employee shall not have attained 50 years of age as on the date of appointment, if appointment is malafidely delayed, the benefit of the Rule can be successfully denied to employees who are working in the lower categories is concerned, that again only suggests that the Rule is capable of being abused or misused by the appointing authority. Chances of abusing or misusing the Rule, will not render the Rule unconstitutional. On the other hand, such action of the WP(C) No.22096/2010 -4- authority concerned may render action liable to be questioned in a Court of Law and if there is merit in the complaint, the Court can interfere and remedy the situation. However, that again is not a ground for invalidating the Rule. 5. Insofar as Ext.P4 order and the contention that one of the beneficiaries of the said order had completed 51 years is concerned, so long as the Rule remains in the statute book, the authorities are bound to follow the same, and an erroneous departure from the provisions of the Special Rule will not give rise to a cause of action for another person to insist that the authority should be compelled to depart from the Rule in future again. Therefore, I am not persuaded to think that the Rule is bad for any reason calling for interference. The writ petition fails and is accordingly dismissed. (ANTONY DOMINIC, JUDGE) jg