B.PRADEEP. Vs. HIGH COURT OF KERALA

JUDGEMENT

(1.) An employee; prone to absenteeism, insubordination and habitual reluctance to do the assigned work, is before us challenging the refusal to promote him to the post of Section Officer/Court Officer; for reason of an in-eligibility prescribed by the Chief Justice other than in the rules framed under Article 229 of the Constitution of India. The appellant had dismal grading in his Annual Confidential Reports ('ACRs' for brevity) for the earlier years; but none in the years relevant for assessment of merit and ability for promotion (hereinafter termed the 'assessment years' for brevity); which is the preceding five years of the year of consideration. However, there were two penalties; one imposed as per Exhibit R1(g) dated 07.01.2011, of withholding of one increment without cumulative effect and another, of barring of two increments without cumulative effect by Exhibit P2 order dated 13.11.2014; both in the relevant assessment years; the year of consideration for promotion being 2015. Pertinently the appellant, in the year of consideration was in the rigor of the penalty imposed in the previous year; of withholding of increment of two years with cumulative effect.

(2.) The learned Single Judge noticed the guidelines issued by the Chief Justice, which provided for a disqualification from consideration for promotion if the officer has earned any adverse remarks in the ACRs of last five years or received any punishment during that period. The power to issue such administrative orders was upheld by the learned Single Judge sourcing it to Article 229 of the Constitution of India, which makes the Chief Justice of the High Court, the supreme authority, in the matter of appointment of officers and staff of the High Court and determining their service conditions. Rule 37 of the Kerala High Court Service Rules, 2007 was also noticed to find that the first proviso to the Rule conferred the power on the Chief Justice to issue administrative orders to supplement the statutory rule; as is available to the Governor or the Government. The administrative circular issued having not nullified any condition of eligibility, it only supplements and not supplants the Rules, was the finding. It was held that the criteria fixed by the Chief Justice determines the suitability of a candidate and not his eligibility as such, the former of which is not justiciable especially when it does not nullify an eligibility criteria. There being no criteria as per the rules to determine the merit and ability, that prescribed by the Chief Justice is immune from challenge. The currency of punishment being recognized as a disqualification for promotion in service jurisprudence, it was held that the past conduct could be taken into consideration while adjudging the suitability of an employee. The writ petition stood dismissed, against which the appeal is filed.

(3.) Sri.R.T.Pradeep, learned Counsel appearing for the appellant does not have any dispute that imposition of a penalty or the rigor of its spilling over, into relevant assessment years can be a consideration for deciding the merit and ability as has been held in Union of India v. K.V.Jankiraman [(1991) 4 SCC 109]. His contention is that the same has to be provided in the statutory rule and the Chief Justice cannot issue administrative instructions to disqualify a person from consideration. The consideration of merit and ability as contemplated by the rules definitely takes in the consideration of punishments imposed; but, however, that has to be done by the Committee, appointed by the Chief Justice, which considers the merit and ability. It is also pointed out that Rule 37 adopts, inter alia, the Kerala Service Rules and the rules regulating the services for the time being in force applicable to the officers of the State, framed under the rule making power of the Governor or Government of Kerala, which, subject to the Rules of 2007, shall govern the members of the service.