T R JOHN Vs. STATE OF KERALA

JUDGEMENT

(1.) THE petitioners in the first and third writ petitions are the same. Petitioners 1 and 2 are First Grade Draftsmen, while the third petitioner is a Second Grade draftsman in the Public Works Department of the State, The first two petitioners have got the requisitie qualification for being promoted as Junior Engineers, while the third petitioner has got the necessary qualification for being promoted as First grade Overseer/draftsman. There are two petitioners in O. P. No. 3393 of 1968. The first is an engineering graduate qualified for being appointed as a Junior engineer, while the second is a holder of a diploma in engineering; and he is qualified for being appointed as First Grade Overseer/draftsman.

(2.) THE Engineering and Technical persons of the Public Works Department, Public health Engineering Department and the Town Planning Department of the State launched a 'no Work' programme with effect from 11th August 1967 and it continued in force till 5-10-1967. Naturally the Government was much upset with this 'no work' programme; and certain emergency steps were taken by the government to carry on the administration. One of them was to appoint administrative Officers for each District to be in overall charge of all the items of work pertaining to these Departments, and to function in" close co-operation with the District Collectors concerned. Emergency powers had also to be vested in the administrative officers. They were given all the powers of an Executive Engineer and the administrative powers of a Superintending Engineer within the respective districts. They were also authorised to recruit or requisition technical and other staff to the extent necessary. Accordingly the Administrative Officers recruited on the whole 23 Junior Engineers and 9 First Grade Draftsmen/overseers on a temporary basis. These 32 persons are respondents 4 to 35 in O. P. No. 3318 of 1968 and O. P. No. 2001 of 1969. Respondents 7 to 21 are new recruits, while the remaining are promotees from lower grades of the Departments. Most of the promotees did not have the qualification laid down by the special rules to hold the post to which they were promoted. Some of the direct recruits, also have not got the requisite qualification for the appointment. On 23-12-1967 the Government passed an order sanctioning the creation of additional posts to speed up the execution of works under the School Buildings Programme, and directing that the aforesaid 32 persons may be absorbed against the said posts for a period of six months. A few persons, who felt aggrieved by the above order, filed O. P. No. 124 of 1968 challenging the validity of the said appointment. In that case, the State government filed a counter-affidavit stating that their appointment was only on a temporary basis, and that the petitioners had, therefore, no ground for complaint. On the basis of such a stand taken by the Government O. P. 124 of 1968 was dismissed by judgment dated 22-3-1968. A few months later the State government passed an order dated 27-7-1968 according sanction for the regularisation of the provisional appointments of the aforesaid 32 persons with effect from the date of their initial appointments in relaxation of the existing rules. This order is marked Ext. P-3 in O. P. N. 2001 of 1969. O. P. No. 3348 of 1968 has been filed to quash the aforesaid order. During the pendency of this petition, the governor of Kerala in exercise of the powers conferred by Rule 39 of the Kerala state and Subordinate Services Rules, 1959 passed another order dated 1st march, 1959. This is marked Ext. P-4 in O. P. 2001 of 1969. This order reads as follows:--

(3.) THERE is no dispute that the appointment of the aforesaid 32 persons were made in the regular course in compliance with the rules; some of them, as already stated, have not got the requisite qualifications for holding the posts to which they have been appointed. That is why these appointments have been regularised by ex. P-4. The common attack against these appointments is that Rule 39 of the aforesaid rules under which Ext. P-4 was issued is unconstitutional, as it confers an arbitrary and unguided power on the Government. This Rule 39, reads as follows:--