K N THANKAM Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner was appointed as a Superintendent in the Secretariat, Travancore Cochin State, in 1951. She was promoted as Assistant Secretary by Ext. P1 order dated 19-6-1961. Her promotion as Assistant Secretary under Ext. P1 was on a provisional basis under the General R.31 of the Kerala State and Subordinate Service Rules, 1958. Subsequently the cases of the petitioner and other persons who were provisionally promoted to the cadre of Assistant Secretary were considered by the Departmental Promotion Committee, and they made certain recommendations to the Government. The Government, after a consideration of the recommendations of the Committee, reverted the petitioner and a few others who were found unsuitable for promotion to the cadre of Assistant Secretary by Ext. P2 order dated 23-3-1963.

(2.) The petitioner contends that the Government have promoted 27 Superintendents as Assistant Secretaries on the basis of the recommendations of the Departmental Promotion Committee and that of the 27 persons so promoted 5 persons are seniors to the petitioner while the remaining are her juniors. The petitioner submits that the order passed by the Government reverting her as Superintendent is violative of her fundamental right under Art.16 of the Constitution, and that by the order of reversion she has been reduced in rank and that as the procedure prescribed by Art.311 of the Constitution was not followed, the order is liable to be quashed by this court under Art.226.

(3.) The argument of the petitioners counsel was that although R.28(b)(i) of the Kerala State and Subordinate Service Rules, 1958, directs that promotion in a service or class to a selection category or grade shall be made on the basis of merit and ability, seniority being considered only when merit and ability are approximately equal, no rules have been framed under the proviso to Art.309 declaring which are the posts which are selection posts, and that in the absence of rules in that behalf it was not open to Government by executive orders to have declared the post of Assistant Secretary a selection post. Counsel also submitted that the Government have no authority to constitute a Departmental Promotion Committee for selecting the candidates for appointment to the post.