P J GRACE Vs. STATE OF KERALA

JUDGEMENT

(1.) THIS petition has been referred to a Division Bench by our learned brother Khalid J. as the decision in the petition involves the question of application of the carry forward rule contained in R. 15 of the Kerala State and Subordinate Services rules as amended and its impact on R. 7 of the said Rules dealing with discharge. After hearing both sides we have considerable doubt whether on the facts in the case this question does really arise though as the parties have pleaded their case it does arise. We are saying so because at the close of the hearing learned Government Pleader has made available to us the file and particularly a letter from the Kerala Public Service Commission from which it would appear that the facts are not as pleaded by the petitioner though specifically these facts are not refuted in the counter-affidavit of the State. Since, for the purpose of this case, it is sufficient to refer to the controversy as pleaded we will confine our consideration to that case.

(2.) THE contention of the petitioner who was appointed as a full time lecturer in the Government Law College, Calicut in February 1974 on the advice of the Kerala Public Service Commission is that she was appointed in the turn of rotation for the Latin Catholic Community, to which she belongs, for appointment as lecturer in Law Colleges which turn actually arose in 1971 but was then passed over for want of suitable hands and, that being the case, when she was appointed later in February, 1974 she would be deemed to have been appointed to the vacancy which had arisen in 1971 and to which a member of her community would have been appointed if one was available. Consequently it is pleaded that the petitioner should not be treated as junior to one Sri Marcus and assigned place below him which may cause her reversion. Sri. Marcus would be senior in case the petitioner is taken to have been appointed when she was actually appointed. But if her appointment is to be projected back to an earlier date, a date when according to her, a person from the Latin Catholic community should have been appointed and none was appointed for want of qualified hands, she would be senior to Sri. Marcus and therefore would not be sent out. THEre is a further contention which is not adverted to in the order of reference and that concerns the interpretation of R. 7 (a) and (b) of the kerala State and Subordinate Services Rules.

(3.) THE next contention of the learned counsel is that R. 7 of the Kerala State and Subordinate Services Rules obliges a departure from the usual rule 'last come first go' in the case of persons belonging to the backward classes. R. 7 (a) and R. 7 (b) with the Ist proviso reads: 7 (a ). THE order in which probationers and approved probationers shall be discharged for want of vacancies shall be: first, the probationers in order of juniority, and second the approved probationers in order of juniority. (b) Approved probationers and probationers who have been discharged for want of vacancies shall be re-appointed as vacancies arise in the inverse of the order laid down in sub-rule (a): Provided (1) that the said order may be departed from in cases where such order would involve excessive expenditure on travelling allowance or exceptional administrative inconvenience, and (2) that such order may be departed from in the case of Scheduled Castes, Scheduled tribes and other Backward Classes in accordance with the provisions in the Special Rules contained in Part III relating to the relevant service:" It is the 1st proviso that is adverted to. Clause (2) of the proviso is particularly relied on for, according to the counsel, that provides that the order of discharge of a junior in preference to a senior may be departed from in the case of other backward classes. But the Rule, it may be noted, specifies that departure may be made in accordance with the provisions of the Special Rules contained in Part III relating to the relevant service. It is not an arbitrary departure that is contemplated but departure in case that is warranted by special rules relating to the particular service. Evidently there is no such Special Rule. At any rate none has been brought to our notice. THErefore that proviso is inapplicable to the case before us.