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Judgment
These two writ petitions are instituted by the Amins/ Last grade employees working in the Kerala Judicial Ministerial Subordinate Service. The petitioners in W.P.(C) No.26894 of 2022 are stated to be Amins working in the Idukki District, whereas the petitioners in W.P.(C) No.12035 of 2022 are stated to be last grade employees working in the Civil Judiciary wing in the Ernakulam District.
For ease of reference, the facts as highlighted in W.P.(C) No.26894 of 2022 is noticed. The petitioners in this writ petition, as noticed earlier, are stated to be Amins working in the Idukki District. The petitioners state that with reference to the provisions of the Kerala Judicial Ministerial Subordinate Service Rules, 1975, (for short, “Special Rules, 1975’) they are entitled for by-transfer appointment to the post of ‘Clerk’. They state that on the basis of the Office Memorandum at Ext.P1 dated 29.11.2017 issued by the High Court of Kerala, as against the ratio 1:1, the appointments were sought to be made in the ratio 9:1. The petitioners further state that Ext.P1 Office Memorandum was issued by the High Court essentially on the basis of the contents of the Government Order of the year 2014 produced by the High Court of Kerala in their counter affidavit as Ext.R3 (a). The petitioners further contend that the High Court was informed that insofar as a special consideration with reference to the ratio was provided under the Special Rules, 1975, there was no requirement for the High Court to have made reference to the Government Order of the year 2014. On that basis, the petitioners further state that the High Court sought to get clarifications from the Government, and the Government issued Ext.P4 Government Order dated 24.08.2019, clarifying that the Government Order of the year 2014 would not apply with respect to cases where Special Rules are available. On the basis of the clarification at Ext.P4, the petitioners further state that Ext.P5 Official Memorandum is also issued by the High Court, dated 23.09.2019, as under:-
“In forwarding herewith the G.O referred 3rd, the District Judges and the Chief Judicial Magistrates are informed that the ratio prescribed for by transfer appointment from lower categories to the post of Clerk/L.D. Typist and direct recruitment will be as in the Special Rules/ administrative instructions before the issuance of G.O referred 1st, except in the case of Clerks in Criminal wing. In the case of Clerks (Criminal Wing) the said ratio shall be as per G.O referred 1st.”
The petitioners further state that insofar as the High Court has accepted Ext.P4 by issuing Ext.P5, since the petitioners have by then already completed two years of service, they satisfied the requirements of eligibility under the Special Rules, 1975, for consideration for appointment by-transfer to the post of Clerk. However, the petitioners state that in the meantime, vacancies were reported to the PSC, with reference to the Government Order of the year 2014 and the ratio specified thereunder. On account of this, the petitioners state that to the extent of the number of appointments made on that basis, the petitioners are also required to be accommodated accordingly. It is in the said circumstances, that this writ petition is filed, seeking the following reliefs: -
“i.declare that appointment to the post of Clerk/LD Clerk in the Civil Judicial Department of Idukki District has to be done strictly in terms of the ratio 4:4:1:1, in terms of the Special Rules.
ii.issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents not to fill up the vacancies in the post of Clerk/LD Clerk by direct recruitment till 12 existing/arising vacancies in the post of Lower Division Clerk in the Kerala Judicial Ministerial Subordinate Service in respect of Idukki District are filled up by appointment by transfer of qualified Amins as per Rule 5(d) of the Special Rules for the Kerala Judicial Ministerial Subordinate Service, r/w the official memorandum dated 01.08.2002 issued by the High Court and to grant such promotees seniority and all other service and monetary benefits w.e.f. the respective dates of occurrence of vacancies, against which 12 direct recruitments were made in excess of the quota within a time limit to be fixed by this Hon’ble Court.”
Heard Sri. V. Varghese, the learned counsel for the petitioners in W.P.(C) No.26894 of 2022 as well as Sri. Millu Dandapani, the learned counsel for the petitioners W.P.(C) No.12035 of 2022. I have also heard Sri. B.G. Harindranath, the learned senior counsel for the High Court of Kerala as well as Smt. A. Aruna, the learned counsel representing the party respondents, who got themselves impleaded in both cases.
The learned counsel for the petitioners would point out that in view of the subsequent Memorandum at Ext.P5, insofar as, the petitioners herein had the relevant experience of two years with reference to the provisions of the Special Rules, the petitioners required to be provided with appointment by-transfer to the post of Clerk. The learned counsel sought to rely on the provisions of Rule 5 (d) to contend that as provided under Clause (d), since the petitioners had the two years experience and were also suitable and qualified to hold the post of Clerk, they ought to be appointed by-transfer to the afore post. The petitioners further state that insofar as, 12 posts have already been advised and provided to the PSC appointees, that much posts should be earmarked to the petitioners herein. The petitioners have also sought to rely on the interim order dated 19.09.2023 passed by this Court modifying the original order of stay granted by this Court, directing the PSC to advice all the Clerk posts except 12 vacancies, which required to be left unfilled till a decision is taken by this Court.
Per contra, Smt. Aruna, the learned counsel for the party respondents sought to rely on the judgment of this Court in Girija v. Public Service Commission & Ors. [2001 (2) KLT 484] to contend that insofar as the posts are already adviced, the petitioners are not entitled to succeed. She would also rely on the directions issued by the Apex Court dated 07.10.2009 in I.A. No.71A in Writ Petition Civil No.1022 of 1989 and would contend that with reference to the directions issued thereunder, the High Court was under an obligation to implement the directives of the Shetty Commission and issue new Special Rules and such Special Rules have been framed in the year 2024. She would further state that even the Special Rules introduced in the year 2024 could not be implemented since under the 2024 Special Rules, the Civil as well as the Criminal wings are separately considered without their integration.
Sri. Harindranath, the learned Senior Counsel for the High Court of Kerala, on the other hand, sought to rely on the counter affidavit filed to state that the original Office Memorandum was issued solely on the basis of the Government Order, and since the Government has subsequently has issued Ext.P4, the High Court has issued Ext.P5 Office Memorandum stating that since there is a separate Special Rules, that would prevail.
I have considered the rival submissions as well as the connected records.
As pointed out above, in the case at hand, the petitioners’ claim for appointment by-transfer requires to be considered with the reference to the provisions of the Special Rules, 1975. Rule 5(d) of the afore Special Rules reads as under:-
“5(d) The appointing authority shall subject to the availability of vacancy, transfer a member belonging to category 7 and 8 in Class I to a post in category 4 or 6 (c) in the same unit provided he is suitable and qualified to hold the latter post and has served for at least two years in the former category.”
A reading of the afore would show that in a situation where a person who has held the post in the former category (Amin) for atleast two years, is entitled to be considered for by transfer appointment in the higher cadre falling under category 4 or 6 (c) in the same unit. In this connection, this Court specifically takes note of the contentions raised by Smt. Aruna, with reference to the averments contained in the counter affidavit filed by respondents 2 to 4 that the petitioners in W.P.(C) No.26894 of 2022 are not entitled for consideration since their probation in the post of Amin came to be declared only in the year June, 2020 and February, 2023, respectively. However, I am of the opinion that insofar as, the requirement under Rule 5(d) is only “served for atleast two years in the former category”, without making any reference to the declaration or probation in the afore post, the contention raised by Smt. Aruna only requires to be noticed and rejected.
Smt. Aruna, would also state that even on the face of the Special Rules, 1975, the petitioners would not be entitled to be considered for appointment since the Special Rules, 1975 cannot survive the Special Rules issued in the year 2024. She would make reference to the notification issued dated 17.05.2024 as per which the new Special Rules were framed by the Government. According to her, under the Special Rules, 2024, the requirement was for having three years of service and therefore the petitioners claim also requires to be considered with respect to that requirement and the satisfaction of that requirement with reference to the arising vacancy. However, this Court notices that under the 2024 Special Rules, with respect to the category Clerk (both Civil and Criminal unit), under serial No.11, it is specifically provided as under:-
“(i)By transfer from qualified Amin and Driver cum Office Attendant of the Unit who have completed three years of service and probation in the Unit on the basis of their seniority in the common seniority list.
(ii)By direct recruitment.
Note- (1) By transfer and direct recruitment shall be in the ratio of 1:1.
(2)In the absence of qualified and suitable hands for by transfer, such vacancies shall be filled up by direct recruitment.
(3)The appointment to the post of Protocol Officer shall be as per the administrative instructions in the High Court O.M. No.R-18/2000/SC/C2(A)(1) dated 16th November\ 2012.
(4)The ratio of 1:1 between by transfer under Rule 5(d) in the erstwhile Kerala Judicial Ministerial Subordinate Service Rules and direct recruitment for appointment to the category of Clerk as per the administrative instructions in the High Court O.M. No.C1-27247/2000 dated 1st August, 2002 shall prevail for the period from 1st August, 2002 till the date of coming into effect of this rule.”
Therefore, under the 2024 Special Rules also, both by transfer recruitment as well as direct recruitment require to be carried out in the ratio 1:1 and it is specifically provided that the Special Rules, 1975 would continue till the date of coming into force of the Special Rules, 2024.
Similarly note No.(2) in serial No.23 also require to be noticed as under:-
“(2)The qualifications and the method of appointment under various categories shall be with reference to the date of occurrence of vacancies and the ratio/ percentage based promotion wherever specified with reference to the to the cadre strength.”
Therefore, the qualification/ method of appointment under various categories require to be considered with reference with ‘date of occurrence of vacancies’. Therefore, in my opinion, the learned counsel for the additional party respondents would not be justified in placing reliance on Special Rules, 2024 and stating that Special Rules, 1975 cannot be applied.
This Court also notices the contention raised by Smt. Aruna with reference to the judgment of this Court in Girija (supra). True, this Court while rendering the afore judgment has specifically found that once a vacancy has been reported to the Public Service Commission, the same cannot be altered/ cancelled/ reduced. However, this Court notices that the afore judgment has been rendered with respect to a claim made by a person who obtained eligibility for promotion subsequently. In the case at hand, as already noticed, the petitioners have specifically pointed out that they were entitled to be considered for by transfer appointment to the higher cadre and merely on the basis of Ext.P1 Office Memorandum issued by this Court, an otherwise eligible claim came to be not considered. In the said circumstances, I am of the opinion that the reliance placed by Smt. Aruna on the judgment of this Court in Girija (supra) is also not apposite.
This Court also notices the contention raised by the learned counsel with reference to the orders issued by the Apex Court referred to above. True, the Apex Court has specifically directed the High Courts to see that the recommendations by the Shetty Commission is adhered. In the case at hand, the Special Rules have been framed also in the year 2024 as noticed earlier. In the said circumstances, I am of the opinion that the contentions raised with reference to the judgment of the Apex Court would also be of no avail.
Therefore, I am of the opinion that the petitioners are entitled to succeed. These writ petitions would therefore stand ordered as under.
It is declared that the appointment to the post of Clerk/ Typist in the civil judiciary should be strictly in accordance with the ratio prescribed under Special Rules, 1975.
There will also be a direction to the respondents to compensate the promotion opportunities lost by implementation of Ext.P1, by effecting retrospective appointments to the posts of Clerk/ Typists by applying the ratio prescribed under Special Rules, 1975, as directed above, as expeditiously as possible, at any rate, within a period of eight months from today. Sd/-
APPENDIX OF WP(C) NO. 26894 OF 2022
PETITIONER’S EXHIBITS
Exhibit P1 TRUE COPY OF THE OFFICIAL MEMORANDUM NO.C1-72253/2017 DATED 29.11.2017 ISSUED BY THE HIGH COURT.
Exhibit P2 TRUE COPY OF THE INTERIM ORDER DATED 24.09.2018 IN W.P(C)NO.1179/2018 OF THIS HON'BLE COURT AND CONNECTED CASES.
Exhibit P3 TRUE COPY OF THE OFFICIAL MEMORANDUM NO.C1-72253/2017 DATED 26.09.2018 ISSUED BY THE HIGH COURT.
Exhibit P4 TRUE COPY OF THE G.O.(P)NO.6/2019/ P&ARD DATED 24.08.2019.
Exhibit P5 TRUE COPY OF THE OFFICIAL MEMORANDUM NO.C1-72253/2017 DATED 23.09.2019 ISSUED BY THE HIGH COURT.
Exhibit P6 TRUE COPY OF JUDGMENT DATED 01.10.2019 IN W.P. (C)NO.1179/2018-R OF THIS HON'BLE COURT.
Exhibit P7 TRUE COPY OF THE RTI APPLICATION SUBMITTED BY ADVOCATE TOMY JOHN BEFORE THE PUBLIC INFORMATION OFFICER.
Exhibit P8 TRUE COPY OF THE LETTER NO.JS/RTI/12/ 2020 DATED 04.01.2021 OF THE STATE PUBLIC INFORMATION OFFICER IN THE OFFICE OF THE 4TH RESPONDENT TO ADV.TOMY JOHN.
Exhibit P9 TRUE COPY OF THE REPRESENTATION DATED 21.02.2022 FILED BY THE 2ND PETITIONER AND OTHERS BEFORE THE 4TH RESPONDENT.
Exhibit P10 TRUE COPY OF THE INTERIM ORDER DATED 07.06.2022 IN W.P. (C)NO.12035/2022 OF THIS HON'BLE COURT.
Exhibit R10(a) TRUE COPY OF THE RELEVANT PAGES OF THE RANKED LIST NO. 459/2022/DOJ DATED 01.08.2022 FOR SELECTION AND APPOINTMENT TO THE POST OF LDC IN VARIOUS DEPARTMENTS IN IDUKKI DISTRICT ISSUED BY THE 5TH RESPONDENT.
Exhibit P11 TRUE COPY OF THE OFFICIAL MEMORANDUM NO.C1-27247/2002 DATED 01.08.2002 ISSUED BY THE HIGH COURT.
Exhibit P11(a) TRUE COPY OF THE TYPED COPY OF EXHIBIT P11.
Exhibit P12 TRUE COPY OF THE RELEVANT EXTRACT OF ORDER NO.C1-108/2017 DATED 03.11.2017 OF THE 4TH RESPONDENT.
RESPONDENTS’ EXHIBITS
Exhibit R7(a) TRUE COPY OF THE RELEVANT PAGES OF THE RANKED LIST NO. 59/2022/DOJ DATED 01.08.2022 FOR SELECTION AND APPOINTMENT TO THE POST OF LDC IN VARIOUS DEPARTMENTS IN IDUKKI DISTRICT ISSUED BY THE 5TH RESPONDENT.
Exhibit R7(b) TRUE COPY OF THE APPOINTMENT CHART NO. IDB(4) 2725/2020 DATED 10.08.2023 ISSUED BY THE 5TH RESPONDENT DOWNLOADED FROM THE OFFICIAL WEBSITE OF KERALA PUBLIC SERVICE COMMISSION.
Exhibit R7(c) TRUE COPY OF THE STATUS OF POST WITH RESPECT TO THE CATEGORY NO. 207/2019 (IDUKKI DISTRICT) DOWNLOADED FROM THE OFFICIAL WEBSITE OF THE KERALA PUBLIC SERVICE COMMISSION.
APPENDIX OF WP(C) NO. 12035 OF 2022
PETITIONERS’ EXHIBITS
Exhibit P1 THE TRUE COPY OF THE OM OF 2ND RESPONDENT BEARING NO. C1-27247/2000 DATED 01.08.2002.
Exhibit P2 THE TRUE COPY OF THE GOVERNMENT ORDER BEARING NO. GO(P) 1/2014/P&ARD DATED 03.01.2014.
Exhibit P3 THE TRUE COPY OF THE OM BEARING NO. C1-72253/2017 DATED 29.11.2017 ISSUED BY THE 2ND RESPONDENT.
Exhibit P4 THE TRUE COPY OF THE INTERIM ORDER OF THIS HON’BLE COURT IN WP(C) 4585 OF 2018 AND CONNECTED CASES DATED 24.09.2018.
Exhibit P5 THE TRUE COPY OF THE GOVERNMENT ORDER BEARING NO. GO(P) 6/19 P&ARD DATED 24.08.2019.
Exhibit P6 THE TRUE COPY OF THE OFFICIAL MEMORANDUM BEARING NUMBER C.72253/19 DATED 23.09.2019 ISSUED BY THE 2ND RESPONDENT.
Exhibit P7 THE TRUE COPY OF THE COMMON JUDGMENT OF THIS HON’BLE COURT IN WP(C) 4585 OF 2018 AND CONNECTED CASES DATED 01.10.2019.
Exhibit P8 THE TRUE COPY OF THE LETTER OF THE 1ST RESPONDENT BEARING REFERENCE NO. RULES-2/125/2017/P&ARD DATED 30.09.2019.