SYGOL CASTRO Vs. STATE OF KERALA

JUDGEMENT

(1.) PETITIONERS challenge the validity of Government notification No. G. O. (P) No. 47/90/p & ARD dated 31. 10. 1990 by which the government of Kerala, in exercise of the powers conferred under sub-s. (1) of s. 2 of the Kerala Public Services Act, 1968 read with S. 3 thereof, amended the special Rules for the Kerala Last Grade Service. The amendment was effected to rr. 4 and 5 of the Special Rules to the Kerala Last Grade Service. The amendment was intended to ensure equality of opportunity in the chances of promotion to the part-time contingent employees in the State. According to the petitioners, almost similar amendments were made by the Government vide its notification g. O. (P ). No. 163/86/gad dated 21. 5. 1986 which was challenged before this Court in W. A. No. 749 of 1986, and a Division Bench of this Court in its judgment in n. C, Narayanan Nair v. State of Kerala, 1988 (1) KLT 894 struck down the amendment in so far as it substituted R. 5 for category 4 in the Kerala Last grade Service Special Rules as ultra vires of the Kerala Public Services Act and unconstitutional as offending Art. 14 of the Constitution. According to the petitioners, the present amendment Ext. P3, would have the effect of nullifying the binding decision in N. C. Narayanan Nair's case (supra ).

(2.) WHEN the matter came up for hearing before a learned single judge of this Court, the learned single judge vide his order dated 27. 1. 1998 adjourned the matter for determination by a Division Bench.

(3.) GOVERNMENT considered the request favourably and issued an order, G. O. MS. No. 71/82/gad dated 18. 3. 1982 stating that appointment to the posts reserved in the Last Grade Service for the part-time contingent employees would be made by promotion of part-time contingent employees based on a common seniority list of part-time contingent employees of all Departments prepared on revenue district-wise basis by the District Collectors. It was also ordered that part-time contingent posts as well as the posts in the Last Grade service attached to the Departments of Animal Husbandry, and Museums and Zoos would be excluded from the common seniority list because of the special nature of duties and responsibilities attached to the last grade posts in those departments. GOVERNMENT ordered that the Special Rules for the Kerala Last grade Service would have to be amended suitably to give statutory validity to the executive order mentioned above. On the basis of the above mentioned order, the following amendment was effected by G. O. (P) No. 163/86/gad dated 21st May 1986. GOVERNMENT OF KERALA General Administration (Rules) Department NOTIFICATION G. O. (P) No. 163/86/gad Dated, Trivandrum , 21st May, 1986 S. R. O. No. 968/86: - In exercise of the powers conferred by sub-s. (1) of S. 2 of the Kerala Public Services Act, 1968 (19 of 1968), read with S, 3 thereof, the GOVERNMENT of Kerala, hereby make the following amendments to the Special Rules for the Kerala Last Grade Service published under notification G. O. (P) No. 82 Public (Rules) Department, dated the 8th march, 1966, in Part 1 of the Kerala Gazette No. 14 dated the 5th April, 1966, as subsequently amended, namely: AMENDMENTS In the said rules in R. 5, under sub-r. (a) for category 4 and the existing methods of appointment against it, the following category and methods of appointment shall be substituted namely: "category 4: (i) By promotion of part-ime contingent employees from the common seniority list prepared on Revenue District-wise basis; or (ii) In the absence of suitable hands under item (i)above, by recruitment through Employment Exchange. Note:- Promotion to this category attached to the under mentioned Departments shall be made from part-time contingent employees of the department concerned on the basis of seniority and in the absence of suitable hands for such promotion, appointment shall be made by recruitment through employment Exchange. (i) Department of Animal Husbandry (ii) Department of museums and Zoos" By order of the Governor C. Ramachandran Secretary to government EXPLANATORY NOTE (This Note does not form part of the Notification but is intended to indicate general purport ). According to the Special Rules for the Kerala last Grade Service, the method of appointment of part-time contingent employees to the regular posts in the Last Grade Service reserved for them is as follows: (i) By promotion from part time contingent employees of the Department concerned; or (ii) In the absence of suitable hands under item (i)above, by promotion from the part-time contingent employees of other departments; or (iii) In the absence of suitable persons under items (i)and (ii) above, by recruitment through Employment Exchange. In G. O. (MS) No. 71/82/gad dated 18. 3. 1982, it has been ordered that appointment to the post reserved in the Last Grade Service for the part-time contingent employees will be made by promotion of the part-time contingent employees based on a common seniority list of part-time contingent employees of all Departments prepared on Revenue District-wise basis by the district Collectors. It has also been ordered in the above G. O. that the part-time contingent posts as well as the posts in the Last Grade Service attached to the Departments of Animal Husbandry and Museums and Zoos will be excluded from the common seniority list because of the special nature of duties and responsibilities attached to the Last Grade posts in those Departments. The special Rules for the Kerala Last Grade Service have to be amended suitably to give statutory validity to the executive orders issued in G. O. (MS) No. 71/82/gad dated 18. 3. 1982. This notification is intended to achieve the above object.