(2012) 249 KLR 103 IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN FRIDAY, THE 13TH DAY OF APRIL 2012/24TH CHAITHRA 1934 WP(C).No. 14058 of 2009 (B) PETITIONERS: 1. YESUDASAN.V.D., OVERSEER GRADE I, LSGD SECTION, ALATHUR GRAMA PANCHAYATH PALAKKAD DISTRICT. 2. SURYAN K.G., OVERSEER GRADE I, LSGD SECTION, KATTAPPANA GRAMA PANCHAYATH IDUKKI DISTRICT. 3. P.SUBHASH KUMAR, OVERSEER GRADE I, LSGD SECTION, KUNDARA GRAMA PANCHAYATH KOLLAM DISTRICT. BY ADV. SMT.P.V.ASHA RESPONDENTS: 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVT, LOCAL SELF GOVT. DEPARTMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. CHIEF ENGINEER, LOCAL SELF GOVT. DEPARTMENT, THIRUVANANTHAPURAM. BY ADV. GOVERNMENT PLEADER SMT.M.K.SREELATHA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/02/2012, ALONGWITH W.P.(C)NO.4414 OF 2008, THE COURT ON 13-04-2012 DELIVERED THE FOLLOWING: APPENDIX (IN W.P.(C)NO.14058 OF 2009) PETITIONERS' EXHIBITS:
RESPONDENTS' EXHIBITS:
//TRUE COPY// AHZ/ K.T.SANKARAN, J. ------------------------------------------------------ W.P.(C) NO. 4414 OF 2008 A and W.P.(C) NO. 14058 OF 2009 B ------------------------------------------------------ Dated this the 13th day of April, 2012 Head Note:- Special Rules for the Kerala Local Self Government Engineering Service 2007 - Rule 2 - Does not provide for any quota for the Engineering Staff of the erstwhile Panchayat Service - Held, The Engineering Staff in the erstwhile Panchayat Service were treated unfairly under the Special Rules in comparison to the Engineering Staff in the PWD and Irrigation Department and other Departments, who were deployed to LSGD. Justice was not done to the members of the Engineering Staff of the Panchayat who were stagnated in service for quite number of years. Their grievances were not considered by the Government in spite of the specific directions issued by the Court on more than one occasion. Rule 2 of the Special Rules which does not provide for any protection to the petitioners and similarly situated persons is violative of Articles 14 and 16 of the Constitution of India, besides being arbitrary and unreasonable. J U D G M E N T The petitioners in W.P.(C) No.14058 of 2009 are working as Overseer Grade I in the Engineering Wing of Local Self Government Department (hereinafter referred to as LSGD), while the petitioners in W.P.(C) No.4414 of 2008 are working as Assistant Engineers in the LSGD. 2. After the amendment of the Constitution of India by the 73rd amendment, the Kerala Panchayat Raj Act, 1994 was enacted. Before the 1994 Panchayat Raj Act, the Engineering staff of the Panchayats were governed by the Kerala Panchayat Common Service Rules, 1977. They had limited chances of promotion. Stagnation occurred in the entry cadre post for several years. In the year 1998, the Pay Revision Committee took note of the lack of promotion avenues to the Engineering staff of the Panchayat Department and made some suggestions. After the Constitution 73rd Amendment, the functional responsibility of the Engineering staff of Panchayats and Municipalities in the State were substantially enhanced. Under the Kerala Panchayat Raj Act, 1994, a new set of special rules came into existence, namely, the Kerala Panchayats Subordinate Service Rules, 1994, which were brought into force with retrospective effect from 1.1.1990. The 1994 Rules did not contain the post of Assistant Engineer. Later, the Government issued Special Rules for the Kerala Panchayat Services in 2006, as per G.O.(P)No.47/2006/LSGD, which came into force with effect from 3.2.2006. The said Rules provide for the qualification and appointment to the post of Assistant Engineer. The method of appointment was by direct recruitment and appointment by transfer from the category of Overseer Grade I in the Kerala Panchayats Subordinate Service in the ratio 6:4. 3. The enhancement in the functional responsibilities of the Panchayats to a great extent necessitated creation of additional posts in the Ministerial Wing as well as in the Engineering Wing. The Ministerial staff working in the various Panchayats were given promotions when additional posts were created in implementation of the Kerala Panchayat Raj Act. However, the Government issued executive orders creating several Engineering cadre posts like Assistant Executive Engineer, Executive Engineer, Superintending Engineer, Chief Engineer etc. and to such additionally created posts, persons from Public Works Department, Irrigation Department, Water Resources Development Department etc. were deployed. G.O.(P)No.186/2000/LSGD dated 4.7.2000 was issued by the Government in that regard (Ext.P1 in W.P.(C) No.4414 of 2008 and Ext.P2 in W.P.(C) No.14058 of 2009). As per the aforesaid Government Order dated 4.7.2000, the Government ordered deployment of one Chief Engineer, six Superintending Engineers and several Executive Engineers, Assistant Engineers and Overseers to Local Self Government Department from Public Works Department and Irrigation Department. 4. The Engineering Staff of the Panchayat Department filed O.P.No.28909 of 2000 before this Court apprehending that the deployment of Engineering Staff from other Departments to LSGD would result in the loss of promotion prospects of the Engineering Staff of the Panchayats. This Court disposed of O.P.No.28909 of 2000 along with several other Original Petitions by the judgment dated 19th March, 2002. The deployment from the Public Works Department and other Departments was also challenged by some of the personnel of those Departments. This Court considered the grievance of the Engineering Staff of the LSGD as the "third set of cases" and it was held thus:
5. The judgment in O.P.No.28909 of 2000 was challenged in W.A.No.733 of 2003. A Division Bench of this Court dismissed the Writ Appeal holding thus:
6. Thereafter, the Government issued G.O.(MS) No.269/2003/LSGD dated 5.9.2003 (Ext.P4 in W.P.(C) No.14058 of 2009 and Ext.P2 in W.P.(C) No.4414 of 2008), creating separate Engineering cadre for LSGD with effect from 1.4.2004. It was also provided therein that the salary of the employees of the Engineering cadre would be paid by the Government. It was further provided in the Government Order dated 5.9.2003 to deploy Engineers and other staff from Public Works Department and Irrigation Department. Some of the Engineering staff of the Panchayat Department challenged the Government Order dated 5.9.2003 in W.P.(C) No.37375 of 2003. The petitioners therein contended that required number of posts of Executive Engineers, Assistant Executive Engineers etc. should have been reserved for the Engineering Wing of the LSGD. In the counter affidavit filed in W.P.(C) No.37375 of 2003, the Government assured that the grievance of the petitioners and similarly situated persons would be examined and considered before finalisation of the Special Rules. W.P.(C) No.37375 of 2003 was disposed of by the judgment dated 16.6.2004 (Ext.P5 in W.P.(C) No.14058 of 2009 and Ext.P3 in W.P.(C) No.4414 of 2008), holding thus:
7. It is contended by the petitioners that the Government disregarded the directions issued by this Court and delayed the framing of Special Rules even after the expiry of the time limit specified by this Court. However, the Government issued an order dated 2.9.2004 deploying some of the Executive Engineers in the Water Resources Department to the newly formed Executive Engineer's Office in the District Panchayat level. One of the petitioners in W.P.(C) No.4414 of 2008 challenged the Government Order dated 2.9.2004 n W.P.(C) No.29870 of 2004. On 26.11.2004, an interim order was passed by this Court not to fill up five posts of Executive Engineers in the District Panchayat and 65 posts of the Assistant Executive Engineers in the Block Panchayat, vacated by the deployed Engineering staff without furnishing certain details to the Court. It is submitted that the interim order in W.P.(C) No.29870 of 2004 is still in force. 8. Cont. Case (C) No.878 of 2005 was filed to take contempt action against the erring officers for not complying with the directions issued by this Court in W.P.(C) No.37375 of 2003. It is stated that when the Contempt Case came up for hearing, the learned Government Pleader brought to the notice of the Court the Government Order dated 3.2.2006 and submitted that the directions issued by this Court were complied with. It was noticed later that the Government Order dated 3.2.2006 was not relating to the subject matter in respect of which directions were issued by this Court. Therefore, R.P.No.490 of 2006 was filed to review the order passed in Cont. Case (C) No.878 of 2005. 9. Meanwhile, W.A.No.1669 of 2006 was filed by the Government challenging the judgment in W.P.(C) No.37375 of 2003. That Writ Appeal was taken up along with Cont. Case (C) No.878 of 2005. The Contempt Case was closed recording the submission made by the learned Government Pleader that Special Rules would be framed within six months. 10. However, Special Rules were not framed even within the time provided. Further extension of time was sought for, which was refused by this Court. Special Rules were issued for Local Self Government Engineering Services, as per G.O.(P) No.271/2007/LSGD dated 27.11.2007 (Ext.P7 in W.P.(C)No.14058 of 2009 and Ext.P13 in W.P.(C)No.4414 of 2008). For the Local Self Government Engineering Subordinate Service, Special Rules were framed as per G.O.(P)No.272/2007/LSGD dated 27.11.2007. The Special Rules for the Kerala Local Self Government Engineering Service, 2007 is under challenge in the Writ Petitions to the extent to which the Rules do not earmark any quota for the Engineering Staff absorbed from the Panchayat Department for promotion to the categories of Assistant Engineers, Assistant Executive Engineers and Superintending Engineers. 11. The petitioners in W.P.(C) No.14058 of 2009 are working as Overseers Grade I. It is stated that petitioners 1 to 3 commenced their service as Overseer Grade II in the respective Panchayats on and from 17.12.1981, 31.3.1989 and 1.7.1989 respectively. They were promoted as Overseer Grade I on 24.5.2005, 29.9.2003 and 17.6.2005 respectively It is stated that the petitioners got their first regular promotion only after completion of 24 years, 14 years and 16 years respectively in the entry cadre, for want of sufficient number of posts of Overseer Grade I. It is also stated that the total number of posts in the Engineering Wing of the 990 Grama Panchayats in the State of Kerala was only 171, comprising of 106 posts of Overseer Grade II, 24 posts of Overseer Grade I and 41 posts of Assistant Engineers. The petitioners contend that stagnation resulted in the Engineering Wing of the Panchayat Department. 12. It is pointed out that persons who commenced service as Overseer Grade II in the PWD or Irrigation Department could become Overseer Grade I within two or three years and they could become Assistant Engineers within another two or three years and they could get further promotions to the posts of Assistant Executive Engineer, Executive Engineer etc. without much delay. However, the persons in the Engineering Wing of the Panchayat Service could not aspire for such early promotions. It is submitted that when the new Special Rules were framed for the Kerala Local Self Government Engineering Services 2007 with effect from 1.1.2008, sufficient safeguards should have been taken to give appropriate places to the personnel working in the Panchayat Service. 13. Similar contentions are raised by the petitioners in W.P. (C) No.4414 of 2008 also. The petitioners in W.P.(C) No.14058 of 2009 contended as follows in the Writ Petition:
14. The petitioners in W.P.(C)No.4414 of 2008 raised the following contentions:
15. A detailed counter affidavit was filed in W.P.(C) No.4414 of 2008. That counter affidavit was sought to be adopted in W.P.(C) No.14058 of 2009. In the counter affidavit, the following among other contentions are raised:
However, the Government felt the need to constitute a separate cadre of Engineering Staff for the Local Self Government Institutions under the Local Self Government Department, de-linking the redeployed staff from the supervisory control of the PWD and Water Resources Department. 16. It is also stated in paragraphs 12 to 14, 21, 35 and 36 of the counter affidavit as follows:
17. In a batch of Writ Petitions, some of the Engineering staff of the Public Works Department and Water Resources Department (Irrigation Department) challenged their absorption in the newly formed Engineering Wing of the LSGD. They also challenged the Special Rules for Local Self Government Engineering Service 2007. Those Writ Petitions were disposed of by a Division Bench in Maju Balakrishnan and others v. State of Kerala and others ((2009) 2 KHC 492 = 2009 (3) KLT SN 76 (C.NO.71)). The challenge against the Special Rules was rejected by the Division Bench. However, certain other reliefs were granted by the Division Bench. 18. One of the main defences in the Writ Petitions is that the petitioners could not aspire for promotion to a post above that of the Assistant Engineer since in the Panchayat Service no such promotion post was available. It is submitted by the Government Pleader that the petitioners having joined the Panchayat Service knowing full well that they could not get quick promotion as in the PWD or Irrigation Department, the contentions raised by the petitioners in the Writ Petitions are unsustainable. I am of the view that this contention raised by the State is unsustainable. 19. The question to be considered is whether under the Special Rules under challenge the petitioners were treated equally with the Engineering Staff deployed from PWD and other departments. While considering that question the petitioners cannot be told that they chose a service in which there were no promotion avenues and therefore they should be satisfied with whatever that is given under the Special Rules. 20. In State of Tripura and others v. K.K.Roy ((2004) 9 SCC 65), it was held thus:
21. In Food Corporation of India and others v. Parashotam Das Bansal and others ((2008) 5 SCC 100), a question arose as to whether the Court could direct the Food Corporation of India to create avenues for promotion for the Engineering Staff in the Corporation. In that context, it was held thus:
22. It cannot be disputed that the Engineering Staff in the Panchayat Service had no promotional avenues as that of similarly placed staff in the PWD and Irrigation Department. The Engineering Staff in the Panchayat Service could not make any complaint that separate posts should be created for getting promotion for them. Posts were created for the purpose of the works to be undertaken by the Panchayats. However, the functional responsibilities of the Panchayat Raj Institutions were substantially changed after the 73rd Amendment of the Constitution of India. That necessitated the issue of several executive orders deploying personnel from the Public Works Department and Irrigation Department to the Engineering Wing of the Local Self Government Institutions. Thus the Engineering staff of the erstwhile Panchayat Service got promotional avenues in future. The question which came up for consideration in O.P.No.28909 of 2000 was whether at the time of framing the Special Rules, sufficient protection should be made available to the Engineering Staff of the Panchayats. This Court held that it was necessary. Specific directions were issued by this Court as to how their interests should be protected. The judgment in O.P.No.28909 of 2000 was challenged by the State in Writ Appeal and the decision of the learned single Judge was confirmed by the Division Bench. The Division Bench noticed that the rule has to stand the test of fairness as embodied in Article 14 of the Constitution and ensure equality of opportunity to the persons already serving in the department. It was also cautioned by the Division Bench that if it were not so, the rights of the petitioners under Articles 14 and 16 of the Constitution would be violated. The Division Bench also observed that the learned single Judge issued the directions in O.P.No.28909 of 2000 only to obviate such contingencies. 23. Again, in W.P.(C) No.37375 of 2003, the Government assured that the grievance of the petitioners and similarly situated persons would be considered before finalising the Special Rules. The undertaking made by the State was recorded in W.P.(C) No.37375 of 2003. The grievance of the petitioners is that in spite of all these events, the rule making authority did not consider the grievance of the petitioners and did not honour the undertaking given by the State before the High Court. There is no case for the State that the directions issued in the judgments in O.P.No.28909 of 2000, W.A.No.733 of 2003 and W.P.(C) No.37375 of 2003 were illegal or without jurisdiction. On the other hand, a perusal of the counter affidavit would indicate that the contention of the State is that the rule making authority took into account the directions issued by this Court and considered the same before finalising the Special Rules. But the protection which was directed to be given to the petitioners and similarly situated persons is not seen given to them under the Special Rules. The State could not point out how the rights of the petitioners have been protected by the Special Rules. It is also not pointed out, except saying that under the Special Rules the petitioners can aspire for promotional avenues now, that the petitioners have been placed almost in the same position as that of the persons belonging to the other departments who were deployed to the Engineering Wing of the LSG Institutions. On a perusal of the Special Rules and on a consideration of the contentions raised by the State, it is fairly clear that the Government simply ignored the specific directions issued by this Court to protect the interests of the petitioners and others. 24. In S.Nagaraj and others v. State of Karnataka and another (1993 Supp (4) SCC 595), the Supreme Court held thus:
25. In Virender Singh Hooda and others v. State of Haryana and another ((2004) 12 SCC 588), the Supreme Court held thus:
26. In State of Haryana v. Karnal Coop. Farmers' Society Ltd. ((1993) 2 SCC 363), the Supreme Court held that a legislature while has the legislative power to render ineffective earlier judicial decisions, by removing or altering or neutralising the legal basis in the unamended law on which such decisions were founded, even retrospectively, it does not have the power to render ineffective the earlier judicial decisions by making a law which simply declares the earlier judicial decisions as invalid or not binding, for such power if exercised would not be a legislative power but a judicial power which cannot be encroached upon by a legislature under our Constitution. 27. In Pankajaksy and others v. George Mathew and others (1987 (2) KLT 723), the Division Bench considered the scope of challenge of a rule made under a statute by an authority delegated for that purpose and it was held thus:
28. In Indian Express Newspapers (Bombay) Private Ltd. and others v. Union of India and others (AIR 1986 SC 515), it was held thus:
29. The learned Government Pleader submitted that the Court cannot interfere with the policy decision taken by the Government. She relied on the decision in Maju Balakrishnan and others v. State of Kerala and others ((2009) 2 KHC 492 = 2009 (3) KLT SN 76 (C.NO.71)) and several other decisions. 30. As held in Indian Express Newspapers (Bombay) Private Ltd. and others v. Union of India and others (AIR 1986 SC 515) and Pankajaksy and others v. George Mathew and others (1987 (2) KLT 723) and several other decisions, a piece of subordinate legislation does not carry the same degree of immunity which is enjoyed by a statute passed by the legislature. A policy decision, however, could not violate the constitutional mandates and the fundamental rights. The contention of the petitioners is that their rights under Articles 14 and 16 of the Constitution of India are infringed. 31. From the admitted facts of the case, it can be seen that the Engineering Staff in the erstwhile Panchayat Service were treated unfairly under the Special Rules in comparison to the Engineering Staff in the PWD and Irrigation Department and other Departments, who were deployed to LSGD. Justice was not done to the members of the Engineering Staff of the Panchayat who were stagnated in service for quite number of years. Their grievances were not considered by the Government in spite of the specific directions issued by the Court on more than one occasion. Rule 2 of the Special Rules which does not provide for any protection to the petitioners and similarly situated persons is violative of Articles 14 and 16 of the Constitution of India, besides being arbitrary and unreasonable. 32. For the aforesaid reasons, it is declared that Rule 2 of the Special Rules for the Kerala Local Self Government Engineering Service 2007, which does not provide for any quota for the Engineering Staff of the erstwhile Panchayat Service, is manifestly arbitrary, illegal, unjust and violative of their fundamental rights enshrined under Articles 14 and 16 of the Constitution of India and therefore Rule 2 shall not be enforced to that extent. The Writ Petitions are allowed as above. (K.T.SANKARAN) Judge ahz/ |
