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R. Prabhakaran Nair and ors. Vs. State of Kerala and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKerala High Court
Decided On
Judge
Reported in(1972)IILLJ565Ker
AppellantR. Prabhakaran Nair and ors.
RespondentState of Kerala and ors.
Excerpt:
- - we, therefore, negative this contention as well......promotion posts available in the department were not exclusively reserved for those working in the civil supplies department but 50 per cent of such posts were reserved for promotions of persons working in the revenue department in the state. the pleadings in these cases are fairly elaborate. when the petitions were filed, the reservation of a percentage of the promotion posts for those in the revenue department was governed by executive orders and such orders have been impugned in these petitions. we are, however, not referring to these executive orders in view of the subsequent events that have taken place, framing of special rules by the state government under the kerala public services act, 1968 relating to the kerala civil supplies service and the kerala civil supplies subordinate.....
Judgment:

P. Govindan Nair, J.

1. The question raised in these two petitions is the same, and it relates to the complaints of persons who have been working in the Civil Supplies Department in the State which was made a separate department. Admittedly from the year 1962 the promotion posts available in the department were not exclusively reserved for those working in the Civil Supplies Department but 50 per cent of such posts were reserved for promotions of persons working in the Revenue Department in the State. The pleadings in these cases are fairly elaborate. When the petitions were filed, the reservation of a percentage of the promotion posts for those in the Revenue Department was governed by executive orders and such orders have been impugned in these petitions. We are, however, not referring to these executive orders in view of the subsequent events that have taken place, framing of special rules by the State Government under the Kerala Public Services Act, 1968 relating to the Kerala Civil Supplies Service and the Kerala Civil Supplies Subordinate Service. These rules have been produced as Ext. P9 in O.P. No. 1022 and Exts. P32 and P33 in O.P. No. 4790 of 1970 and the two original petitions have been amended to include the relief of setting aside these rules. These rules naturally supersede the earlier orders and govern the matter of promotions. The only question, therefore, now arising for determination is whether there are grounds for setting aside these rules. We will assume for the present that all persons working in the Civil Supplies Department are now governed by these rules. We will be dealing with this question whether they are all governed by these rules presently.

2. We shall be referring to the exhibits in O. P. No. 1022 of 1970.

3. We shall first refer to the contention regarding the validity of the rules. Counsel for the petitioners has contended that Exts. P19 and P20 were framed by the State Government in exercise of the powers conferred by Section 2 of the Kerala Public Services Act, 1968 and that this power conferred on the State Government under Section 2 of the Kerala Public Services Act is not a valid provision in view of the provision in Article 309 of the Constitution. Section 2(1) is in these terms:

2. Regulation of recruitment and conditions of service.-(1) The Government may make rules to regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the State of Kerala.

And Article 309 without the proviso thereto runs thus:

309. Subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State.

The argument that has been advanced is; that Article 309 makes it clear that the regulation of the recruitment and conditions of service has to be by the appropriate Legislature and that in view of this provision in this Article service conditions can be regulated only by a law enacted by the Legislature and not by the rules framed under an enactment passed by the Legislature, by the delegated authority. It is contended that no law made under the power conferred by Article 309 can provide for any delegated authority to make rules in relation to the recruitment and conditions of service. It is further contended that in any view of the matter the delegation in this case is excessive.

4. As regards the first point, we think that the power of the Legislature is derived by virtue of Article 246 read with Item 41 in List II of the Seventh Schedule to the Constitution. Item 41 in List II of the Seventh Schedule to the Constitution is in these terms:

41. State Public Services ; State Public Service Commission.

This gives ample and wide powers to the Legislature to make rules not only regarding the recruitment but relating to the service conditions of the State employees. It is not suggested that in exercise of such power by the Legislature it has no power at all to delegate. Article 309 does not confer power on the Legislature. Nor do we think that the Article limits the power conferred by Article 246 read with Item 41 in List II of the Seventh Schedule to the Constitution. So we have to reject the first contention that there can be no delegation at all by any law passed by the State Legislature in regard to the fixation of conditions of service of the State employees.

5. Then the only question is whether there has been excessive delegation. And we think there is none in view of the specific provision in Sub-section (2) of Section 2 of the Kerala Public Services Act, 1968 which is in these terras:

2.(2) Every rule made under this section shall be laid as soon as may be after it is made before the Legislative Assembly while it is in session for a total period of fourteen days which may be comprised in one session or in two successive sessions and if before the expiry of the session in which it is so laid or the session immediately following, the Legislative Assembly agrees that the rule should be either modified or annulled, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.

6. The only further question that need be considered is whether the statute is violative of Article 16 of the Constitution. It was argued by counsel for the petitioners that the chances of promotion of the employees in the Civil Supplies Department have been jeopardised by the import into the above Department of a number of persons from the Revenue Department to fill up 50 per cent of the vacancies in the Civil Supplies Department. How far such a general contention is justified will depend upon the number of persons employed in the Civil Supplies Department and their normal chances of promotion as compared to that in the Revenue Department. If the chances of promotion in the Revenue Department are very little and the chances of promotion into the Civil Supplies Department are much, the State Government, we conceive, is fully empowered to regulate the chances of promotion of their employees in these two departments so as to ensure some sort of equitable distribution of the promotion posts. There is no material before us to determine that this is not what has been done; and it is not possible to hold on the evidence before us that Article 16 has been violated. We, therefore, negative this contention as well.

7. With reference to the petitioners in these two petitions, six in number, it was urged that since they belong to the category of upper division clerks or lower division clerks or head clerks or head accountants they are not governed by the Kerala Civil Supplies Subordinate Service Rules, and that these petitioners are still governed by the executive orders and, therefore, we should consider the validity of the executive orders. In view of the provision in Rule 2(2) of the Kerala Civil Supplies Subordinate Service Rules (Ext. P20), which runs thus:

2.(2) Appointment to the remaining fifty per cent of the posts shall be made by transfer from among the members of the Kerala Ministerial Subordinate Service employed in the Civil Supplies Department and, if no qualified and suitable candidate is available for such appointment by direct recruitment.

we consider that the chances of promotion of these petitioners are also now governed by these rules and 50 per cent of the vacancies occurring in the categories of posts mentioned as that belonging to the Kerala Civil Supplies Subordinate Service are available to them. Whether the rules are valid we have already dealt with. We dismiss these petitions. We direct the parties to bear their respective costs.


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