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M.N. Kesavan Nair and anr. Vs. Travancore Devaswom Board Represented by the Secretary to the Board, Trivandrum and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtKerala High Court
Decided On
Case NumberOriginal Petn. Nos. 12 and 13 of 1956
Judge
Reported inAIR1959Ker21
ActsConstitution of India - Articles 226 and 311
AppellantM.N. Kesavan Nair and anr.
RespondentTravancore Devaswom Board Represented by the Secretary to the Board, Trivandrum and ors.
Appellant Advocate M.N. Parmeswaran Pillai, Adv.
Respondent Advocate T.K. Narayana Pillai (P.),; V. Gopalakrishna Rao and; S.
DispositionPetitions dismissed
Excerpt:
.....service to respondents no. 2 and 3 - respondents no. 2 and 3 had longer service than petitioners - rank given to respondent's consistent with order of government - respondent no. 1 acted in conformity with government order - respondents also obtained necessary test qualification - held, respondent no. 1 not acted in violation of any rule. - - the grounds as summarised at the time of final hearing were that the orders were passed in violation of rules made and orders issued by the government from time to time as well as by the devaswom board. 45-75. as this was a case of upgrading and the devaswom account officer recommended that the test qualifications may be dispensed with for confirmation of personnel in the view revised grades. it has been repeatedly pointed out by this court..........to thesaid rule there was nothing improper in what was done. the question of contravention of rules and orders does not arise as this was not strictly a case of promotion but upgrading of the various categories. ext. v, copy of the government order is relied on to show that this principle was accepted by government also in similar cases. this is not a case coming within the scope of article 311 of the constitution and there is therefore no scope for interference. these are the main contentions on which the 1st respondent opposed the petitions. 2. respondents 3, 5 and 6 have filed counter-affidavits raising contentions similar to those of the 1st respondent, the petitioner has filed an affidavit 'in reply to this. 3. so far as o. p. 13 is concerned the allegations and objections are.....
Judgment:
ORDER

1. The petitioners in these petitions are two employees of the Travancore Devaswom Board. They have filed the petitions under Article 226 of the Constitution praying for the issue of a writ of certiorari quashing certain orders of the 1st Respondent the Travancore Devaswom Board and also a writ of mandamus or other appropriate orders or directions to the 1st Respondent to declare them as senior in service to the Respondents 2 to 6. As the points arising for decision in the two petitions were identical the petitions were heard together

The petitioner in O. P. No. 12 was recruited as a clerk in the Devaswom Department in the State of Travancore on 1-11-1122 in the scale of Rs. 25-1-30 and was confirmed on 1-5-1124. On 10-8-1124 he was promoted as acting clerk on Rs. 30-3-45 and confirmed in that grade on 1-5-1950. Subsequently on 8-8-1950 he was promoted as acting clerk in the scale of 45-5-75 superseding Respondents 2 to 6 of whom Respondents 2 to 5 had not then obtained the requisite qualifications of passing the Account Test and the 6th Respondent who was only an undergraduate, although he had passed the test.

On 7-9-1950 the 1st Respondent revised the scale of salaries of its ministerial staff giving effect to the revision on 1-9-1950. Under this scheme 63 places in the scale of 45-5-75 were sanctioned. Later 2 additional places were sanctioned as from 9-9-1950. The 1st Respondent directed the Devaswom Commissioner to submit nominations for these places. He sent up a statement the copy of which has been produced as Ext. A containing two lists A and B, the former giving the names of 28 persons who had already obtained promotion to that grade on passing the Account Test and the latter containing the names of persons including those who had passed the Account Test but had no earlier acting qualifications and others who had not passed the test.

The petitioner's case is that the 1st Respondent sanctioned these places by order Ext. B dated 17-1-1951 absorbing 64 persons in the scale of 45-5-75 in the order or their seniority in service in that scale. Respondents 2 to 5 and others who had not the test qualification at that time were directed to get qualified within two years and it was further ordered that they would get their increment only after passing the test. According to the petitioners the confirmation in the higher scale of persons who had not passed the test is illegal as it contravenes the service rule contained in G. O. D. Dis. No. 1601/45/Devpt dated 11-6-45. Respondents 2 to 6 were ranked in list B as numbers 40, 58, 60, 61 and 28 while the petitioners and one Krishnan Tampi were continuing as permanent clerks in the scale of Rs. 45-5-75, 3 vacancies in the scale of Rs. 80-5-120 arose and the petitioners and Krishnan Tampi were promoted and posted in those vacancies.

Respondents 2 to 5 made representations to the 1st Respondent stating that they were entitled to seniority over the petitioners and Krishnan Tampi and after considering the same, the 1st Respondent passed an order Ext. C dated 10-4-1954 upholding the claims put forward by Respondents 2 to 5. The petitioners, Krishnan Tampi and one Bhaskara Marar were thus reverted to the scale of Rs. 45-5-75 promoting Respondents 2 to 5 to the higher grade.

This is one of orders sought to be quashed. The reversion however did not actually take effect and the petitioners continued in the scale of Rs. 80-120 as there were sufficient vacancies in that grade. According to the petitioner the 6th Respondent's promotion to the higher grade was done in violation of the principles laid down by the 1st Respondent in its proceedings dated 7-9-1950.

The petitioners and Krishnan Tampi made separate representations to the 1st Respondent complaining against their reversion and in spite of the clarification obtained by the 1st Respondent from the Comptroller, these representations were dismissed by order Ext. D dated 20-12-1955. This is the other order sought to be quashed. The orders Exts. C and D are questioned on the several grounds stated in paragraph 23 of the affidavits filed by the petitioners.

The grounds as summarised at the time of final hearing were that the orders were passed in violation of rules made and orders issued by the Government from time to time as well as by the Devaswom Board. The 1st Respondent has filed a counter-affidavit through its Secretary. According to the 1st Respondent these petitions are belated as the same have not been filed within 3 months of Ext. C and as the review petitions filed by the petitioner's before the 1st Respondent were not statutory remedies so as to enable the petitioners to claim exclusion of the period of pendency of those petitions in computing the time within which the Original Petitions should have been filed.

In the alternative, an objection that the petitions are premature is also taken on the ground that the question of ranking and seniority is still pending final decision. It is further contended that the orders in question are administrative or executive in nature and that the same do not properly come up for interference under Article 226. On the representation of the staff of the Department, the 1st Respondent at its meeting held on 23-2-1950 sanctioned standardised scales of grade and pay as in departments of the Government fixing the lowest scale of pay as Rs. 30-45.

The other revised scales for clerks were Rs. 45-75, 80-120 and 125-150. This resulted in the abolition of 81 posts in the lowest category of Rs. 25-30 and the increase in the number or clerks from 26 to 65in the scale of Rs. 45-75. As this was a case of upgrading and the Devaswom Account Officer recommended that the test qualifications may be dispensed with for confirmation of personnel in the view revised grades. On 17-1-1951 orders wereissued for absorption of the 28 persons in list A and 31 in list B in the scale of Rs. 45-75. Ext. Ill iscopy of the minutes of the meeting of the 1st Respondent held on 17-9-1951.

It was specifically mentioned therein that therelative ranks of the petitioners and Bhaskara Marar would be decided later, that clerks who have not passed the Account Test would be given two chances for passing the same, that rank and seniority would be finally decided after the gradation list was completed and that the new arrangement would takeeffect from 1-9-1950. Ext. HI was not intended toconfer seniority or rank in the order in which the names appeared in the list. The 1st Respondent relies on another rule which provides that seniority should be fixed with reference to their relative rank in the cadre from which they were promoted. Respondents 2 to 6 had longer service than the petitioners in the scale of Rs. 30-45 and according to thesaid rule there was nothing improper in what was done.

The question of contravention of rules and orders does not arise as this was not strictly a case of promotion but upgrading of the various categories. Ext. V, copy of the Government order is relied on to show that this principle was accepted by Government also in similar cases. This is not a case coming within the scope of Article 311 of the Constitution and there is therefore no scope for interference. These are the main contentions on which the 1st Respondent opposed the petitions.

2. Respondents 3, 5 and 6 have filed counter-affidavits raising contentions similar to those of the 1st Respondent, The petitioner has filed an affidavit 'in reply to this.

3. So far as O. P. 13 is concerned the allegations and objections are identical, the only difference being in respect of the dates of original recruitment and confirmation of the petitioner in the scale of 30-45 and of promotion to the higher grade. Respondents 1, 4, 5 and 6 have filed counter-affidavits in O. P. 13 also.

4. The point pressed on behalf of the petitioners at the hearing was that the orders Exts. Gand D are ultra vires as the same were passed incontravention of rules and standing orders governing servants of the Government and Devaswom Board which have the force of law.

5. Before considering this matter it is necessary to deal with some of the objections of a preliminary nature raised by the Respondents. One such objection is that the petitions are belated since the order Ext. C was passed on 10-4-1954 and the original petitions were filed only on 9-1-1956. In the absence of valid grounds for the delay, this court has held in a number of cases that an original petition should be filed within three months of the date on which the order sought to be quashed was passed.

The petitioners no doubt applied for reviewing this order and the review petitions were dismissedon 20-12-1955. Though there is no statutory provision for such review petitions the 1st Respondent thought fit to entertain the same and to enquire into the same. The original petitions were filed within three weeks of the final order Ext. D. We do not therefore consider it proper to dismiss the petition on this ground.

6. Another objection urged on behalf of the petitioners is that the petitions are premature. Thecontention is that the relative rank of the clerks has not been fixed yet and that the matter is still pendingdecision. The 1st Respondent has stated in paragraph 4 of the counter-affidavit as follows:

'This petition is also premature in the sense that the gradation list of the ministerial staff of the department has yet to be finalised and the petitioner has ample opportunities to urge his points and get appropriate reliefs.''

Learned counsel for the 1st Respondent stated before us at the hearing that the gradation list had not been finalised, even on that date. It is admitted that the question of preparation of gradation list has been pending for nearly 8 years. It was not possible for the 1st Respondent's learned counsel to say whether the question could be expected to be decided in the near future. Even though the matter may not have been finally decided Exts. G and D show that the 1st Respondent has come to a decision on the question of seniority among the petitioners and Respondents 1 and 2. We do not therefore consider it proper to uphold this objection.

7. There is yet another ground on which the petitions are opposed. The Respondents contend that even if there is any violation of the service orders of Government or rules of the Devaswom Board in passing the impugned orders the same is not justiciable. According to the petitioners these rules have the force of law and any infringement of the same would make the matter justiciable.

It has been repeatedly pointed out by this court as well as the Travancore-Cochin High Court that the service rules relating to promotion, rank etc. in I Government servants have not the force of law and that infringement of the same cannot properly be brought up to this court under Article 228 of the Constitution. Apart from the fact that there has not been any violation of service rules in passing the impugned orders as we shall show later, we are unable to hold that these rules have the force of law.

It was urged by the petitioners that the rules made by the Devaswom Board relating to these matters incorporate the provisions of the prior orders of the Government relating to promotion etc. and that these rules at any rate should be deemed to have the force of law. We are unable to accept this contention. These rules were made by the Devaswom Board for guidance in matters relating to promotion etc., and the mere fact that these rules were made by virtue of a provision in the statute empowering the Board to make rules does not invest the same with statutory force. This objection of the Respondents must therefore be upheld.

8. It was contended on behalf of the petitioners that the order Ext. C was passed without giving an opportunity to the petitioners to show cause why they should not be reverted. Article 311 of the Constitution was thus said to have been violated in passing the order. Even assuming that the petitioners arc Government servants it cannot be held that there has been violation of Article 311.

The reversion was not made as a measure of punishment for any misconduct on the part of the petitioners and the same having been brought otherwise than by way of punishment, the petitioners cannot claim protection under Article 311. The argument that the order was passed without hearing the petitioners has therefore no force.

9. The petitioners have no case on the merits either. Respondents 2 to 6 had longer service than the petitioners as seen from the statement Ext. B filed by the 1st Respondent. It is true that when the petitioners and the Respondents were absorbed in the scale of Rs. 45-75, Respondents 2 to 5 had not obtained the test qualification. The petitioners rely on a Government order dated 11-6-1945 which provided that preference should always be given tothose who have passed the test in the matter of promotions whether acting or substantive.

Another order of the Government relied on is one dated 10th September 1951 according to which Account Test was made obligatory for all members of the ministerial services in the State, to hold posts in the grade of Rs. 45-75 and above. These provisions have been incorporated in role 7 of the rules regarding the recruitment of service and conduct of Devaswom servants. It has however to be pointed out that the absorption of Respondents to the grade of Rs.45-75 was the result of standardisation of various categories of clerks under the Devaswom Board.

The lowest category of clerks till then was in the scale of Rs. 25-30. This was abolished so that clerks serving in that category automatically reached the higher grade. As a result of such up-grading more posts in the higher grades had to be created and the Respondents were taken in the higher grade to fill such posts.

It was thus really not a case of promotion but of upgrading of the category so that the question of violation of the rule enjoining promotion to the scale of Rs. 45-75 did not arise. That the Government also recognised the principle that test qualification was not to be insisted upon in such cases is seen from the order of the Government Ext. V dated 27-4-1953. Even apart from this, the Respondents also obtained the test qualification before they were promoted to the scale of Rs. 80-120,

They had longer service than the petitioners and the rank given to them by the order Ext, C is consistent with a later order of the Government Ext. VI dated 4th January 1954. The 1st Respondent acted in conformity with Ext, VI as by the time the confirmation of these persons in the scale of Rs. 80-120 had to be considered and decided Respondents 2 to 5 had obtained the necessary test qualification. Thus the 1st Respondent cannot be held to have acted illegally or in violation of any rule in this behalf.

10. In these circumstances the petitions fail and must be dismissed. We accordingly dismiss Original petitions 12 and 13. The petitioners will pay the costs of the contesting Respondent's in the respective petitions including Advocate's fee of Rs. 50 to each of the contesting Respondents.


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