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IN THE HIGH COURT OF KERALA AT ERNAKULAM
A.K.Jayasankaran Nambiar, Mohammed Nias C.P., JJ.
Mehaboob P.M., S/o. P.M.Ismail Sahib and Ors. – Petitioners
Versus
State Of Kerala, Represented By the Secretary, Agriculture (E.A.) Department and Ors. – Respondents
OP(KAT) NO. 123 & 103 of 2022
Decided On : 22-07-2022
Service Matter – Appointment – Promotion –Special Rules - Appointment to the post of Assistant Engineer (Agriculture) - Manner in which these vacancies are to be filled up for promotion – Challenged - Tribunal was in error in directing the promotion on the basis of Annexure A1 and Annexure A2 orders which stood replaced by the Special Rules. Promotion had to be effected only under the Special Rules. (Para 14,15)
Finding of the Court :
It is trite that the mere existence of vacancies does not confer any right on qualified employees to seek appointment to the said vacancies. It is open to the State to decide, as a matter of policy, that the vacancies should be filled only in accordance with the new Rules. This is more so when we are told that the new Rules were in a draft stage for a considerable period of time before they finally came into force.
Result : Allowed.
JUDGMENT :
Mohammed Nias. C.P., J.
These original petitions (KAT) are filed against the order in OA (EKM) 555 of 2021 dated 15.12.2021. OP(KAT) 103 of 2022 is filed by the State of Kerala and its officials, while OP(KAT)123 of 2022 is filed by those persons who unsuccessfully filed a review against the impugned judgment before the Tribunal.
2. The applicant in OA No.555 of 2021, a Mechanic in the Agricultural Development and Farmers Welfare Department, a post which is included as a feeder category for promotion as Assistant Engineer (Agriculture), approached the Tribunal against the non-filling up of three vacancies of Assistant Engineer (Agriculture) available for promotion. Earlier, the qualification and method of appointment to the post of Assistant Engineer (Agriculture) was laid down as per executive orders dated 7.3. 1990, Annexure A1, which was later amended as per Annexure A2 order dated 05.05.1993. Alleging that the applicant was included in Annexure A3 select list of the employees eligible for promotion in the year 2012 and stating that vacancies have arisen on 31.05.2017, 30.04.2019 and 05.11.2020, the appellant sought convening of the Department Promotion Committee (DPC) for effecting promotion. While so, the Special Rules, namely the Agricultural State Services Special Rules, 2021 was brought into force as per notification dated 12.02.2021 and the applicant contended that the said Rules are only prospective and cannot be invoked to fill up those vacancies in existence prior to its coming into force.
3. The Government filed a statement stating that four vacancies of Assistant Engineer (Agriculture) was available in the Department, out of which one was reported to the Public Service Commission for direct recruitment in tune with the ratio of 3:1 and that three vacancies are remained to be filled up through promotion.
4. The additional third respondent who subsequently got impleaded in the original application contended that those vacancies are to be filled up through promotion on the basis of the seniority and eligibility and questioned the provisional seniority list that was in existence at that point of time
5. The Tribunal after hearing both sides held that since it is not disputed that the vacancies had arisen prior to the coming into force of Special Rules, they are to be filled in accordance with Annexure A1 and Annexure A2 executive orders which held the field at the time when the vacancies arose. Accordingly, the Government was directed to ensure that the DPC is convened to carry out the promotions in tune with the select list to be filled up. A review was carried against the said order of the Tribunal by the petitioner in OP(KAT) 123 of 2022, but was rejected..
6. The petitioners in OP(KAT) 123 of 2022 filed a review before the Tribunal pointing out the judgment of the Supreme Court in State of Himachal Pradesh and Ors v. Raj Kumar and Ors. [JT 2022(5) SC 516] and contending that promotions are to be made by resorting to the Special Rules and not by Annexure A1 and Annexure A2 executive orders. The Tribunal dismissed the review following the judgment in Mohanan v. Director of Homeopathy [2006 (3) KLT 641] and also finding that there was no intention by the authority to fill up the already existing vacancies by resorting to the Special Rules.
7. Since both these original petitions arise from the same order, they are taken up together and disposed by a common judgment.
8. We have heard Sri.Bijoy Chandran, the learned Government Pleader, Sri.Mohanlal for the petitioners in OP(KAT) 123 of 2022,Sri.P.Ramakrishnan for the 3rd respondent and Sri.Mohammed Haneef for the 4th respondent.
9. It is not disputed that three vacancies are available for promotion and they arose on 31.5.2017, 30.04.2019 and 11.5.2020. It is also not disputed that the Special Rules have come into force on 12.2.2021. The essential dispute in the present case is the manner in which these vacancies are to be filled up for promotion, namely, whether under
Point of law : Appointment - Promotion has to be on the basis of the old rules when the vacancy fell prior to the coming into force of the amended Rules.
Promotions under employment regulations must strictly adhere to specified categories without mixing across categories, even in cases of insufficient qualified candidates.
when a new post is created, the concept of Rules obtaining when the vacancies arose is inappiicable as what is created is a new post on account of re-structuring of the cadre.
Promotion criteria and eligibility are determined by the employer's discretion, and employees do not have a vested right to promotions under repealed rules.
Promotions in public service must be based on the qualifications of candidates at the time of vacancy occurrence, and not on the timing of appointments or subsequent qualifications of other candidate....
Promotions in public service must be determined based on the qualifications and eligibility of candidates at the time of vacancy occurrence, not the date of appointment, ensuring that qualified candi....
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