SANKARAN NAIR Vs. STATE OF KERALA
LAWS(KER)-1964-12-31
HIGH COURT OF KERALA
Decided on December 11,1964

SANKARAN NAIR Appellant
VERSUS
STATE OF KERALA Respondents

JUDGEMENT

M. Madhavan Nair, J. - (1.) THE petitioner was a Ranger in the Madras Forest Service when he was allotted to Kerala on the formation of the State on November 1, 1956. He was appointed an Assistant Conservator of Forests by the order, Ext. P1, date July 31, 1959, of the Chief Conservator of Forests, ratified by the Government by the order, Ext. P.2, dated August 12. He joined duty on August 10, 1959, and had since then been holding that post. Respondents 2 to 9 were appointed Assistant Conservators by direct recruitment in the years 1959-1962. THE petitioner challenges their appointments as violative of the Rules on the matter and therefore illegal and void; and asserts that, even if their appointments could be regularised, the petitioner is senior to them. However, on June 24, 1963, he was served with the order, Ext. P.4, reverting him to give place to the 10th respondent who was appointed as Assistant Conservator on September 9, 1960. THE petitioner's representation to Government evidenced by Ext. P7 dated June 30, 1963, has not been disposed of. Meanwhile, on the ground that the petitioner passed the Account Test for Executive Officers on February 28, 1961 only, the Government issued the order, Ext. P9, directing the petitioner's probation to be reckoned only from that day. THE petitioner submitted a representation, Ext. P10, on February 1, 1963, requesting the Government to grant him permanent exemption from the obligation to pass the Account Test in view of his 20 years' service and to declare commencement of his probation from April 11, 1960, when he completed 45 years of age. Though that was recommended favourably by the Chief Conservator, nothing came out of it; and the Chief Conservator wrote to the Government on July 2, 1963, to declare completion of the petitioner's probation on April 29, 1963. THE learned Advocate-General has produced before us the Government's order dated March 7, 1964, rejecting the petitioner's representation, Ext. P10. THE petitioner contends that he was not obliged to pass the Account Test and that, counting his probation from August 10, 1959, he is senior to the 10th respondent and prays for the issue of a writ of certiorari to quash the order for his reversion and "a writ of quo warranto calling upon respondents 2 to 9 to show under what authority they are functioning" as Assistant Conservators.
(2.) THE State and the other respondents have filed affidavits-in-opposition. Several documents in support of the respective averments have been filed by the parties, and lengthy arguments which lasted three days have been addressed to us. The petitioner was a Ranger at the time of his allotment to the State of Kerala on November 1, 1956. S.115 of the States Reorganisation Act, 1956, provided that the conditions of service applicable immediately before November 1, 1956, to any person allotted from one State to another "shall not be varied to his disadvantage except with the previous approval of the Central Government". R.2 of the Special Rules for the Madras Forest Service (Vide: Madras Services Manual, Vol. II, pages 72 to 74), provides: "Appointment to the several categories of services shall be made as follows:- ............................................................................................................................................ Assistant Conservators - Direct recruitment or recruitment by transfer from Rangers of the Madras Forest Subordinate Service. So far as qualified and suitable candidates are available, direct recruitment and recruitment by transfer of Assistant Conservators of Forests shall be made in the proportion of 3: 2: Provided that substantive vacancies in the category of Assistant Conservators shall be filled in accordance with the seniority of approved probationers". The Proviso (above) is clear that direct recruitments of probationary Assistant Conservators are not limited to substantive vacancies in permanent posts in the category, as has been vehemently contended by counsel for the petitioner and for some others, and that the question of substantive vacancies in the category - not confined to permanent posts therein - is relevant only at the time of confirmation of approved probationers in the Service. R.6 of Part II - General Rules - of the Madras State and Subordinate Services Rules. (Vide: Madras Services Manual, Vol. I, page 62) cannot counter the above Special Rule in view of the express provision that the Special Rules will prevail over the General Rules (Vide: R.2 of the General Rules). The contention that under the Madras Rules direct recruitment of probationary Assistant Conservators can only be against substantive vacancies in the permanent posts in the category has therefore to be repelled. Equally unsubstantial are the contentions that the Madras Rules do not prescribe any Account Test for persons recruited by transfer and that those Rules allow obligatory tests to be taken during the period of probation in the concerned post. No doubt, R.7 of the Madras Forest Service Rules prescribes Account Test only for 'Probationary Assistant Conservators recruited direct'; but, R.4(2) thereof is absolute as it prescribes: "No person shall be eligible for appointment by transfer as Assistant Conservator unless he has passed the Account Test for Executive Officers: Provided that a person who attainted the age of 45 years on or before the 5th May, 1946 shall not be required to pass this test". Admittedly the petitioner does not come within the ambit of the proviso. It is clear that, under the Madras Rules, a Ranger who has not passed the Account Test cannot be appointed an as Assistant Conservator. It follows that the direct recruitments of Assistant Conservators made by the State of Kerala without regard to substantive vacancies in permanent posts in the category and its direction to reckon the petitioner's probation only from the date on which he passed the Account Test are not violative of any of the Madras Service Rules, the benefit of which is guaranteed to the petitioner under S.115 of the States Re-organisation Act, 1956. Permanent exemption from passing the Account Test is claimed by the petitioner on account of his completion of 20 years of service. Reliance was had on the Notification in the Gazette dated October 21, 1958, that the rule in the Government Proceedings dated April 18, 1951, and May 7, 1951 (Vide: Important Orders of the Travancore-Cochin Government, pages 634 and 582) "as subsequently clarified from time to time shall be applicable to the officers allotted and transferred from Madras State with regard to the departmental and special tests applicable to them" till December 31, 1960. The learned Advocate-General pointed out that one of the clarifications referred to therein is in the Government Proceedings dated February 17, 1956, (Vide: Page 589 of the aforesaid Important Orders) that reads: "In the Government Proceedings read above, Government have ordered that an officer to be eligible for permanent exemption from test qualification under the rules should have worked for twenty years in a post or posts for which test qualification is obligatory......Government wish to make it clear that it is enough if the service is in a post or posts for which any test qualification is obligatory, the intention being not to count service in posts for which no tests are necessary". The petitioner's request in Ext. P10 to count also his service as a Forester in the Madras State, for which there was no test qualification, "for purpose of reckoning twenty years of service for permanent exemption from the obligatory Tests" has been turned down by the Government as mentioned above. We do not see how the extraordinary jurisdiction of this Court under Art.226 of the Constitution can be invoked in a matter of this kind.
(3.) IT was next contended that the Kerala State and Subordinate Services Rules, 1958, having been issued on December 17, 1958, "in supersession of the rules on the subject", R.5 of Part II - General Rules - thereof governs appointments made in 1959 and after, and that the direct recruitments of respondents 2 to 9 in violation of that rule have to be set at naught as illegal. That Rule reads: "Where the normal method of recruitment to any service, class or category is neither solely by direct recruitment nor solely by transfer but is both by direct recruitment and by transfer... (a) the proportion or order in which the Special Rules concerned may require vacancies to be filled by persons recruited direct and by those recruited by transfer shall be applicable only to substantive vacancies in the permanent cadre; (b) a person shall be recruited direct only against a substantive vacancy in such permanent cadre, and only if the vacancy is one which should be filled by a direct recruit under the Special Rules referred to in clause (a); and (c) recruitment to all other vacancies shall be made by transfer." "The normal method of recruitment to any service, class or category" mentioned in this Rule is to be sought in the Special Rules defined as "the rules in Part III applicable to each service or class of service". The Kerala State and Subordinate Services Rules, 1958, is not a complete set of rules: only Part I (Preliminary) and Part II (General Rules) have been issued; and Part III (Special Rules) remains yet to be issued. In the Madras State and Subordinate Services Rules, which obviously formed the precedent for the Kerala Rules to the extent issued, S.15 relates to the Madras Forest Service; and R.2 of Part II of both the Madras and the Kerala State and Subordinate Services Rules say: "If any provision in the General Rules contained in this part is repugnant to a provision in the Special Rules applicable to any particular service contained in Part III, the latter shall, in respect of that service prevail over the provision in the General Rules in this part." The contention is that, the Special Rules not having been issued, no direct recruitment is possible in any department of the Kerala State or Subordinate Services. We do not think there is any warrant in the Rules for such a proposition that is apt to keep off trained personnel and highly qualified hands from the State Services. There is no authority for that in R.5 quoted above. IT may be that, in the absence of the Special Rules on which R.5 of the General Rules is so much dependent, the Rule itself may not come into play, though the Kerala State and Subordinate Services Rules, 1958, as such are brought into force on the date of their issue. The Kerala Forest Service was formed under S.115 of the States Reorganisation Act, 1956, by a combination of Travancore-Cochin personnel and Malabar personnel, governed by the Travancore-Cochin Service Rules and the Madras Service Rules respectively at the time of the formation of the State. The rule in regard to Travancore-Cochin personnel was, as mentioned in the Government Proceedings dated December 30, 1949, (Vide: Ext. R2 filed by the 2nd respondent) that 25% of the posts of Assistant Conservators of Forests were reserved for being filled up by promotion from Rangers, such promotions being within the purview of the Public Service Commission. And the rule in regard to Malabar personnel was R.2 of the Madras Forest Service Rules (cited supra). IT is normally expected that those rules, which are identical in character save in regard to the proportion between direct recruitments and recruitments by transfer, will continue to be observed till new rules are issued. "The exercise of the power to appoint or dismiss an officer is the exercise .........of an administrative power". Pradunt Kumar Bose v. The Honourable the Chief Justice of Calcutta (AIR.1956 S.C. 285). Unless it is regulated by statutory rules, the method of appointment must be in the discretion of the Government. The expression "in supersession of the rules on the subject" in the preamble to the Kerala State and Subordinate Services Rules, 1958, does not seem to affect the above position. Supersession connotes the prior existence of a rule. The Kerala State and Subordinate Services Rules, 1958, were admittedly the first of their kind made by the Kerala Government. The prior rules implied in the above expression can therefore be only the rules of the Madras and Travancore-Cochin States that were in vogue at the time of the issue of the Kerala Rules, as indicated by the petitioner in Para.3 of his affidavit in support of this writ petition. "On the subject" in the above expression must denote only those subjects covered by the new rules. Special Rules regarding appointments to the Service not having been issued, the impugned appointments, though made after December 17, 1958, can be tested only in the light of the relevant Madras or Travancore-Cochin Rules. IT is not shown that any violation of those Rules, to the prejudice of the petitioner has been made in the matter of the impugned appointments. In any view, it cannot be said that the impugned direct recruitments of Assistant Conservators made by the 1st respondent, the State of Kerala, were illegal or void. Long after the filing of this Writ Petition, the State has issued G.O. Rt. 2304/64/Agri. dated September 14, 1964, with effect from November 1, 1956, fixing the proportion between direct recruitment and recruitment by transfer in the cadre of Assistant Conservator of Forests as 3:2. That is obviously an adoption of the Madras principle to the State of Kerala; and the Malabar personnel, who were formerly governed by that principle have nothing to complain against it. But, as it brought down the proposition of direct recruitment prevalent in the Travancore- Cochin State, counsel for respondents 2 to 4 and 6 challenged it. The contention was that, in so far as the G.O. fixed the proportion with retrospective effect, it was beyond the powers of the Governor under the Proviso to Art.309 of the Constitution. A.I.R. 1963 Mysore 265 and A.I.R. 1955 Assam 17 were cited to support that contention; and A.I.R. 1958 Calcutta 407 and A.I.R. 1962 Allahabad 328 F.B. were relied on by the opposition. But the G.O. in question does not purport to have been issued under Art.309; nor does the State claim it to be a rule made under it. In the Travancore-Cochin State, the proportion had been fixed by a Government Proceedings dated December 30, 1949, which was an executive order only. It is well settled that executive orders may be changed from time to time as the exigencies of the case may require and that such changes may even be made with retrospective effect. In General Manager, Southern Railway v. Rangachari (AlR. 1962 S.C. 36) a circular issued by the Railway Board on April 27, 1959, prescribing a quota of reservation for Scheduled Castes and Scheduled Tribes in promotions to Selection posts with retrospective effect from January 4, 1957, was impugned as illegal. The Supreme Court held: "It may also be assumed that giving retrospective effect to reservations may well cause heart- burning or dissatisfaction amongst the general class of employees and in that sense it would be an act of wisdom not to give effect to reservation retrospectively. But; with the propriety or the wisdom of the policy underlying the circulars we are not directly concerned... If it is conceded that selection posts can be reserved it is difficult to see how it would be open to the respondent to contend that these reserved selection posts must be filled only prospectively and not retrospectively." Very similar is the case here; and we must hold the G.O. as perfectly legal and valid.;


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