Kerala High Court
Ajeesh K.A vs State Of Kerala on 25 March, 2025
Author: A.Muhamed Mustaque
Bench: A.Muhamed Mustaque
OP(KAT) NO. 203 OF 2023 1
2025:KER:24765
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
TUESDAY, THE 25TH DAY OF MARCH 2025 / 4TH CHAITHRA, 1947
OP(KAT) NO. 203 OF 2023
AGAINST THE ORDER DATED 27.02.2023 IN OA (EKM) NO.350 OF
2023 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM
(ADDITIONAL BENCH, ERNAKULAM)
PETITIONERS/APPLICANTS :
1 AJEESH K.A.,
AGED 42 YEARS
KALANGARA HOUSE,
MALIANKARA P.O,
PARAVUR THALUK,
ERNAKULAM DIST.,
PIN - 683516
2 JOSEPH JAISON,
AGED 51 YEARS
S/O. ANTONY P. X.,
PALAMPALLY HOUSE,
THOPPUMPADY P.O,
KOCHI, PIN - 682005
BY ADVS.
TITUS MANI
P.A.JACOB
BINNY THOMAS
SWAROOP A.P.
OP(KAT) NO. 203 OF 2023 2
2025:KER:24765
RESPONDENTS/RESPONDENTS :
1 STATE OF KERALA,
REPRESENTED BY ITS CHIEF SECRETARY,
SECRETARIAT, THIRUVANANTHAPURAM,
PIN - 695001
2 DIRECTOR GENERAL,
KERALA FIRE AND RESCUE SERVICE,
THAMPANOOR MASJID RD,
THIRUVANANTHAPURAM,
KERALA, PIN - 695001
3 HOME DEPARTMENT- GOVERNMENT OF KERALA,
REPRESENTED BY THE HOME SECRETARY,
THIRUVANANTHAPURAM, KERALA -695001.
*ADDL.R4 K.V SHIBU,
ASSISTANT STATION OFFICER,
FIRE AND RESCUE STATION, NEDUMANGAD,
THIRUVANANTHAPURAM-695661.
*ADDL.R5 BELJI VARGHESE,
ASSISTANT STATION OFFICER,
FIRE AND RESCUE STATION, IDUKKI-685612.
*ADDL.R6 GEORGE PAUL,
ASSISTANT STATION OFFICER,
FIRE AND RESCUE STATION,
MUNNAR, IDUKKI-685612.
*ADDL.R7 K. ASHOKAN,
ASSISTANT STATION OFFICER,
FIRE AND RESCUE STATION,
THIRUR, MALAPPURAM-676101
*ADDL.R8 M. SREEDHARAN,
ASSISTANT STATION OFFICER,
FIRE AND RESCUE STATION,
PERINGOM, KANNUR-670353
*ADDL.R9 HARESH KUMAR P N,
ASSISTANT STATION OFFICER,
OP(KAT) NO. 203 OF 2023 3
2025:KER:24765
FIRE AND RESCUE STATION,
NILAMBUR, MALAPPURAM-679329.
*ADDL.R10 JAYAPRAKASH B.,
ASSISTANT STATION OFFICER,
FIRE AND RESCUE STATION,
IRINJALAKUDA, THRISSUR-680125.
*ADDL.R11 S.B SAJITH LAL,
ASSISTANT STATION OFFICER,
FIRE AND RESCUE STATION,
KODUGALLOOR, THRISSUR-680663.
*ADDL.R12 A ABDUL SAMAD,
ASSISTANT STATION OFFICER,
FIRE AND RESCUE STATION,
SHORNUR, PALAKKAD-679122.
*ADDL.R13 K.K BINOY,
ASSISTANT STATION OFFICER,
FIRE AND RESCUE STATION,
MOOLAMATTAM, IDUKKI-685589.
*ADDL.R14 T.ANILKUMAR,
ASSISTANT STATION OFFICER,
FIRE AND RESCUE STATION,
VADAKKANCHERY, THRISSUR-680590.
*ADDL.R15 G.VIJAYAN,
ASSISTANT STATION OFFICER,
FIRE AND RESCUE STATION,
PALAKKAD-678001.
*ADDL.R16 A.SABU,
ASSISTANT STATION OFFICER,
FIRE AND RESCUE STATION,
MALA, THRISSUR-680732.
*ADDL.R17 T.R HAMSA KOYA,
ASSISTANT STATION OFFICER,
FIRE AND RESCUE STATION,
MUKKAM, KOZHIKKODE-673602.
OP(KAT) NO. 203 OF 2023 4
2025:KER:24765
*ADDL.R18 PRADHEEPAN PUTHALATH,
ASSISTANT STATION OFFICER,
FIRE AND RESCUE STATION,
PERAVOOR, KANNUR-670673.
*ADDL.R19 T.S SHANAVAS,
ASSISTANT STATION OFFICER,
FIRE AND RESCUE STATION,
THRISSUR-680001.
*ADDL.R20 V.P.ABDHUL NAZEER,
ASSISTANT STATION OFFICER,
FIRE AND RESCUE STATION,
THIRUVALI, MALAPPURAM-676517.
*ADDL.R21 UNNIKRISHNAN L.,
ASSISTANT STATION OFFICER,
FIRE AND RESCUE STATION,
THANUR, MALAPPURAM-676302.
*ADDL.R22 B.HARIKUMAR,
ASSISTANT STATION OFFICER,
FIRE AND RESCUE STATION,
CHITTOOR, PALAKKAD-678102.
*ADDL.R23 SATHI KUMAR,
ASSISTANT STATION OFFICER,
FIRE AND RESCUE STATION,
PATHANAMTHITTA-689645.
*ADDL.R24 O.K.RAJEESH,
ASSISTANT STATION OFFICER,
FIRE AND RESCUE STATION,
THALASSERY, KANNUR-670101.
*ADDL.R25 N.BALAKRISHNAN,
ASSISTANT STATION OFFICER,
FIRE AND RESCUE STATION,
SULTHANBATHERY, WAYANAD-673592.
*ADDL.R26 N SATHEESH KUMAR,
ASSISTANT STATION OFFICER,
FIRE AND RESCUE STATION,
NEDUNKANDAM, IDUKKI-685553.
OP(KAT) NO. 203 OF 2023 5
2025:KER:24765
*ADDL.R27 K.S.HARI,
ASSISTANT STATION OFFICER,
FIRE AND RESCUE STATION,
VADAKKANCHERY, PALAKKAD-678682.
*ADDL.R28 P. SAJU,
ASSISTANT STATION OFFICER,
FIRE AND RESCUE STATION,
PERINTHALMANNA, MALAPPURAM-679322.
*ADDL.R29 G. MURALEEDHARA PILLA,
ASSISTANT STATION OFFICER,
FIRE AND RESCUE STATION,
NATTIKA, THRISSUR-680567.
*ADDL.R30 P T DILEEP,
ASSISTANT STATION OFFICER,
FIRE AND RESCUE STATION,
KOOTHUPARAMBA, KANNUR-670671
*ADDL.R31 BIJU SURESH GEORGE,
ASSISTANT STATION OFFICER,
FIRE AND RESCUE STATION,
MATTANNOOR, KANNUR-670702.
*ADDL.R32 SANTHOSH KUMAR T,
ASSISTANT STATION OFFICER,
FIRE AND RESCUE STATION,
KASARAGOD-671121.
*ADDL.R33 T R RADHAKRISHNAN,
ASSISTANT STATION OFFICER,
FIRE AND RESCUE STATION,
PEERUMEDU, IDHUKKI-685531.
*ADDL.R34 M. PRADHEEPAN,
ASSISTANT STATION OFFICER,
FIRE AND RESCUE STATION,
MANANTHAVADI,
WAYANAD-670645.
*ADDL.R35 K.C SUJEESH KUMAR,
ASSISTANT STATION OFFICER,
OP(KAT) NO. 203 OF 2023 6
2025:KER:24765
FIRE AND RESCUE STATION,
PANOOR, KANNUR-670001.
*ADDL.R36 SUDHEER LAL,
ASSISTANT STATION OFFICER,
FIRE AND RESCUE STATION
MALAPPURAM-676509.
*ADDL.R37 C RAJENDHRAN NAIR
ASSISTANT STATION OFFICER,
FIRE AND RESCUE STATION,
KOZHIKODE 673504
*ADDL.R38 ABRAHAM PUNNOOS K P.,
ASSISTANT STATION OFFICER,
FIRE AND RESCUE STATION,
KATTAPPANA, IDUKKI-685515.
*ADDL.R39 HAREESH KUMAR S,
ASSISTANT STATION OFFICER,
FIRE AND RESCUE STATION,
KONNI, PATHANAMTHITTA-689691.
*ADDL.R40 J GLADSON,
ASSISTANT STATION OFFICER,
FIRE AND RESCUE STATION,
KUTTIKOL, KANNUR-671541.
*ADDL.R41 N PRADHEEP,
ASSISTANT STATION OFFICER,
FIRE AND RESCUE STATION
KANNUR-670013.
*ADDL.R42 REMESAN N,
ASSISTANT STATION OFFICER,
FIRE AND RESCUE STATION,
PERAMBRA, KOZHIKODE-673525.
*ADDL.R43 M S JAYAN,
ASSISTANT STATION OFFICER,
FIRE AND RESCUE STATION,
KADUTHURUTHI, KOTTAYAM-686613.
ARE IMPLEADED AS ADDITIONAL RESPONDENTS R4 TO R43 AS
OP(KAT) NO. 203 OF 2023 7
2025:KER:24765
PER ORDER DATED 4/7/23 IN IA 1/2023 IN OP (KAT)
203/2023.
*ADDL.R44 JAISON HILARIUS
ASSISTANT STATION OFFICER,
FIRE & RESCUE STATION,
BUNGALOW PARAMBU, THATHAMANGALAM,
CHITTOOR, PALAKKAD -678102.
*ADDL.R45 VINOD N R,
ASSISTANT STATION OFFICER,
FIRE & RESCUE STATION
KANCHIKODE, PALAKKAD-618623.
*ADDL.R46 K THOMAS,
ASSISTANT STATION OFFICER,
FIRE & RESCUE STATION,
PERINGOM, KANNUR -670353.
*ADDL.R47 M RAJAN,
ASSISTANT STATION OFFICER,
FIRE & RESCUE STATION,
VALLIYOORKAVU, MANANTHAVADI,
WAYANAD-670645.
*ADDL.R48 R SAJEEVKUMAR
ASSISTANT STATION OFFICER,
FIRE & RESCUE STATION,
MALAPURAM -676509.
ARE IMPLEADED AS ADDITIONAL RESPONDENTS R44 TO R48 AS
PER ORDER DTD 18/8/2023 IN IA.3/2023 IN OP(KAT)
203/2023.
BY SRI.A.J.VARGHESE, SR.GOVERNMENT PLEADER
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY
HEARD ON 20.03.2025, THE COURT ON 25.03.2025 DELIVERED THE
FOLLOWING:
OP(KAT) NO. 203 OF 2023 8
2025:KER:24765
"C.R."
JUDGMENT
Dated this the 25th day of March, 2025
A.Muhamed Mustaque, J.
The petitioners approached the Tribunal challenging the
ratio prescribed for appointment as Assistant Station Officer by
promotion. The Tribunal dismissed the challenge in the light of
the judgment of this Court in Elsy P. Sebastian and Others v.
K. L. Sudhamony and Others [2010 (1) KHC 632], wherein
this Court held that the ratio of promotion category in a Rule
cannot be challenged unless it is shown that rule is ultra vires,
beyond the rule making power of the delegate of legislature,
arbitrary and unreasonable.
2. Invoking power under the Kerala Public Services Act,
1968, the Government of Kerala made the Special Rules in
respect of the Kerala Fire Subordinate Service, 1988. There are
six categories of officers in the service. The category 2 is the
Assistant Station Officer. Appointment to the post of Assistant
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Station Officer is from Category 3 - Leading Fireman and Category
4 - Driver Mechanic. In the Note, the ratio between Leading
Fireman and Driver Mechanic is fixed at 9:1.
3. The Leading Fireman is now renamed as Senior Fire &
Rescue Officer (hereinafter referred to as 'Leading Fireman'). The
Driver Mechanic is renamed as Senior Fire & Rescue Officer
(Mechanic) (hereinafter referred to as 'Driver Mechanic').
The cadre strength of Leading Fireman is 502. The cadre
strength of the Driver Mechanic is 130.
4. The challenge is on the ground that the ratio is not
proportionate and the ratio, as prescribed now, unreasonably
favours the Leading Fireman. In the Original Application, the
petitioners stated that the cadre strength of Leading Fireman is
496 and that of Driver Mechanic is 130 and therefore, based on
the cadre strength, the ratio ought to have been 4:1. According to
the learned counsel for the petitioners, even going by the
strength of 502:130, the ratio of 4:1 will have to be maintained.
5. In the counter filed by the 2nd respondent before this Court, the
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justification of the ratio is stated as follows:
"7. It is submitted that the number of Senior Fire &
Rescue Officer & Senior Fire & Rescue Officer
(Mechanic) in the department is respectively 502 & 130
i.e.. the number of Senior Fire & Rescue Officer
(Mechanic) is very less compared to Senior Fire &
Rescue Officer. Therefore the ratio for promotion to
Assistant Station Officer i.e. 9:1 is legal, reasonable
and sustainable. The promotion of Assistant Station
Officer is done by the norms mentioned in the special
rules. The department strictly follows the ratios fixed
for promotion as Assistant Station Officer which is
justifiable in all respects.
9. It is submitted that the number of Senior Fire &
Rescue Officer and Senior Fire & Rescue Officer
(Mechanic) in the department is respectively 502 & 130
i.e. the number of Senior Fire & Rescue Officer
(Mechanic) is very less compared to Senior Fire &
Rescue Officer. Therefore the ratio between Senior Fire
& Rescue Officer (Mechanic) and Senior Fire & Rescue
Officer to give promotion as Assistant Station Officer
cannot be fixed at 1:1. or else."
6. The Tribunal dismissed the challenge, relying on
Elsy P. Sebastian (supra). The challenge in the above case was
in regard to the common seniority list under the Special Rules
for Social Welfare Service Rules, 1992, for appointment in the
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post of Regional Probation Officer (Category 4). Appointments to
Category 4 were made through promotions from Categories 5
and 6. A common seniority list of incumbents in Categories 5
and 6 was prepared as prescribed by the rule. The learned
Single Judge held that the rule is arbitrary as some of them
were appointed to Category 5 belatedly due to a dearth of
vacancies and absence of promotional opportunities.
7. The Division Bench overruled the decision by stating
that the rule can be struck down only on the limited grounds,
and held as follows:
"Going by the above dictum, if the provisions of
the rule are ultra vires of the parent Act, the said rule
can be struck down. If the rule is in conflict with any
other statutory provision, then also the said rule can
be struck down as ultra vires and beyond the rule
making power of the delegate of the Legislature. A rule
can be struck down as unreasonable, if it is grossly
arbitrary and partial in its operation whereupon the
court would say that the Legislature should not be
intended to have conferred power to frame such
arbitrary rules. Then, again this ground comes under
the first ground, that is, ultra vires of the provisions of
the parent Act. In this case, we think, none of the
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above grounds enumerated by the Division Bench is
available. By the operation of the Rule, promotion
chances of persons in Category No. 5 may not be
bright from the administrator's point of view. It is an
anomaly that requires to be rectified. But, the fact that
persons belonging to one category do not get sufficient
promotion chances when compared to the persons in
the rival feeder category, we think, is not a ground
available for striking down a subordinate legislation."
8. The learned counsel for the petitioners, Sri. Titus
Mani Vettom, submits that when incumbents are equal for the
purpose of promotion, they should be given an equal chance, as
equal opportunity is a facet of Articles 14 and 16(1) of the
Constitution. According to the learned counsel, when there is no
intelligible criteria fixed while prescribing the ratio, the rule itself
becomes arbitrary. Therefore, the dictum laid down in Elsy P.
Sebastian (supra) provides no reason to consider the challenge
made by the petitioners. It is submitted that the prescribed ratio
of 9:1 is arbitrary, without any yardsticks, and has no nexus
with the objective sought to be achieved. It is further argued
that when the Driver Mechanic is eligible for promotion to the
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position of Assistant Station Officer along with the Leading
Fireman, a proportionate ratio based on the cadre strength is a
reasonable criteria, and arbitrary fixation of a criteria, ignoring
proportionate chances, would result in denial of equal
opportunity for equals to claim promotion.
9. The learned counsel for the petitioners placed reliance on
the following judgments;
9.1. The Apex Court in General Manager, S. Rly. v.
Rangachari [AIR 1962 SC 36] has observed that,
"15. If the narrow construction of the expression "matters
relating to employment" is accepted it would make the
fundamental right guaranteed by Article 16(1) illusory. In
that case it would be open to the State to comply with the
formal requirements of Article 16(1) by affording equality of
opportunity to all citizens in the matter of initial
employment and then to defeat its very aim and object by
introducing discriminatory provisions in respect of
employees soon after their employment. Would it, for
instance, be open to the State to prescribe different scales
of salary for the same or similar posts, different terms of
leave or superannuation for the same or similar posts? On
the narrow construction of Article 16(1) even if such a
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discriminatory course is adopted by the State in respect of
its employees that would not be violative of the equality of
opportunity guaranteed by Article 16(1). Such a result
could not obviously have been intended by the Constitution.
In this connection it may be relevant to remember that
Article 16(1) and (2) really give effect to the equality before
law guaranteed by Article 14 and to the prohibition of
discrimination guaranteed by Article 15(1). The three
provisions form part of the same constitutional code of
guarantees and supplement each other. If that be so, there
would be no difficulty in holding, that the matters relating
to employment must include all matters in relation to
employment both prior, and subsequent, to the
employment which are incidental to the employment and
form part of the terms and conditions of such employment."
9.2. The Apex Court in Govind Dattatray Kelkar v. Chief
Controller of Imports & Exports [AIR 1967 SC 839]
observed as follows:
"15. It was then suggested that the ratio of 75% for direct
recruits and 25% for promotion from departmental
candidates was discriminatory. This point directly arose for
consideration in Mervyn Coutinho v. Collector of Customs,
Bombay. Therein, this Court accepted the validity of
rotational system where the recruitment to a cadre was
from two sources and held that such a system did not
violate the principle of equal opportunity enshrined in
Article 16(1) of the Constitution.
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16. But, it is said that if the system of rotation was
necessary, the Government should have applied the ratio
of 50:50 and not 75:25. When the recruitment to certain
posts is from different sources, what ratio would be
adequate and equitable would depend upon the
circumstances of each case and the requirements and
needs of a particular post. Unless the ratio is so
unreasonable as to amount to discrimination, it is not
possible for this Court to strike it down or suggest a
different ratio. Nothing has been placed before us to show
that the ratio of 3:1 is so flagrant and unreasonable as to
compel us to interfere with the order of the Government."
9.3. Further, the Apex court in Mervyn Coutindo v.
Collector of Customs [AIR 1967 SC 52] has observed as
follows:
"7. This brings us back to the circular of 1959, and the
main question in that connection is the meaning to be
assigned to the words "seniority determined accordingly",
in the explanation to principle 6 relating to relative seniority
of direct recruits and promotees. As we read these words,
their plain meaning is that seniority as between direct
recruits and promotees should be determined in accordance
with the roster, which has also been specified, namely, one
promotee followed by one direct recruit and so on. Where
therefore recruitment to a cadre is from two sources,
namely, direct recruits and promotees and rotational
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system is in force, seniority has to be fixed as provided in
the explanation by alternately fixing a promotee and a
direct recruit in the seniority list. We do not see any
violation of the principle of equality of opportunity
enshrined in Article 16(1) by following the rotational system
of fixing seniority in a cadre half of which consists of direct
recruits and the other half of promotees, and the rotational
system by itself working in this way cannot be said to deny
equality of opportunity in government service. The
anomalies which have been referred to in the petition arise
not on account of there being anything opposed to equality
of opportunity in government service by the use of the
rotational system; they arise out of the fortuitous
circumstance that in this particular service of Appraisers,
for one reason or another, direct recruitment has fallen
short of the quota fixed for it. It is merely because of this
fortuitous circumstance that anomalies to which reference
has been made in the petition have arisen. There is no
doubt that if direct recruitment had kept pace with the
quota fixed therefor there would have been no anomalies in
fixing the seniority list. The question therefore narrows
down to this: Can it be said that there is denial of equality
of opportunity which arises out of this fortuitous
circumstance and which is not a vice inherent in the
rotational system? We are not prepared to say that the
rotational system of fixing seniority itself offends equality of
opportunity in government service. Any anomalies which
may have resulted on account of insufficient recruitment of
direct recruits in the past cannot in our opinion be a ground
for striking down the rotational system, which, as we have
said, does not itself amount to denial of equality of
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opportunity in the matter of employment in government
service. It is regrettable that some anomalies have
appeared because of insufficient recruitment of direct
recruits in the past in this particular service. But that in our
opinion can be no reason for striking down the seniority list
prepared in 1963 which is undoubtedly in strict accordance
with the rotational system based on the fixed quotas for
recruitment of direct recruits and promotees. The order of
the Board of 1963 on the basis of which the impugned
seniority list of Appraisers has been prepared clearly lays
down that "the principle of determination of seniority of the
direct recruits and the promotees inter se in the prescribed
ratio of 1:1 should be worked out". This order is in
accordance with the circular of 1959 and as we have said
already, there is no inherent voice in the principle of fixing
seniority by rotation in a case where a service is composed
in fixed proportion of direct recruits and promotees. Nor do
we think that this system is on a par with the carry-forward
Rule which was struck down by this Court in T. Devadasan
v. Union of India and on which strong reliance is placed on
behalf of the petitioners. In the case of the carry-forward
Rule certain quota is fixed annually for a certain class of
persons and it is carried forward from year to year. This is
very different from a case where a service is divided into
two parts and there are two sources of recruitment, one of
promotion and the other by direct recruitment. In such a
case, the whole cadre of a particular service is divided into
two parts and there is no question of carrying anything
forward from year to year in the matter of annual intake.
The basis on which the carry-forward Rule was struck down
by this Court does not therefore apply to a case where the
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whole cadre of a service is divided in certain fixed
proportions between promotees and direct recruits. The
petitioners therefore can get no assistance from Devdasan
case. The petition must therefore fail so far as seniority of
Appraisers is concerned.
8. This brings us to the question of Principal Appraisers. We
are of opinion that the petitioners have a legitimate
grievance in this respect. The source of recruitment of
Principal Appraisers is one, namely, from the grade of
Appraisers. There is therefore no question of any quota
being reserved from two sources in their cases. The
rotational system cannot therefore apply when there is only
one source of recruitment and not two sources of
recruitment. In a case therefore where there is only one
source of recruitment, the normal Rule will apply, namely,
that a person promoted to a higher grade gets his seniority
in that grade according to the date of promotion subject
always to his being found fit and being confirmed in the
higher grade after the period of probation is over. In such a
case it is continuous appointment in the higher grade which
determines seniority for the source of recruitment is one.
There is no question in such a case of reflecting in the
higher grade the seniority of the grade from which
promotion is made to the higher grade. Insofar therefore as
the respondent is doing what it calls restoration of seniority
of direct recruits in Appraisers' grade when they are
promoted to the Principal Appraisers' grade, it is clearly
denying equality of opportunity to Appraisers which is the
only source of recruitment to the Principal Appraisers' grade.
There is only one source from which the Principal Appraisers
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are drawn, namely, Appraisers, the promotion being by
selection and five years' experience as Appraiser is the
minimum qualification. Subject to the above all Appraisers
selected for the post of Principal Appraisers must be treated
equally. That means they will rank in seniority from the date
of their continuous acting in the Principal Appraisers' grade
subject of course to the right of the Government to revert
any of them who have not been found fit during the period
of probation. But if they are found fit after the period of
probation they rank in seniority from the date they have
acted continuously as Principal Appraisers whether they are
promotees or direct recruits. The present method by which
the respondent puts a direct recruit from the grade of
Appraiser, though he is promoted later, above a promotee
who is promoted to the grade of Principal Appraiser on an
earlier date clearly denies equality of opportunity where the
grade of Principal Appraiser has only one source of
recruitment, namely, from the grade of Appraisers. In such
a case the seniority in the grade of Principal Appraisers must
be determined according to the date of continuous
appointment in that grade irrespective of whether the
person promoted to that grade from the Appraisers' grade is
a direct recruit or a promotee. This will as we have already
said be subject to the Government's right to revert any one
promoted as a Principal Appraiser if he is not found fit for
the post during the period of probation. The petition
therefore will have to be allowed with respect to the method
by which seniority is fixed in the grade of Principal
Appraisers. That method denies equality of opportunity of
employment to the Appraisers who are the only source of
recruitment to the grade of Principal Appraisers. What the
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impugned method seeks to do is to introduce a kind of
reservation in respect of the two categories of Appraisers
from which the promotions are made, and that cannot be
done when the source of promotion is one."
9.4. The Apex court in State of J&K v. Triloki Nath Khosa
And Others [(1974) 1 SCC 19] has observed as follows:
"21. Our reason for saying this is to emphasize that the
respondents ought to have furnished particulars as to why,
according to them, the classification between diploma-
holders and degree-holders is not based on a rational
consideration having nexus with the object sought to be
achieved. In order to establish that the protection of the
equal opportunity clause has been denied to them, it is not
enough for the respondents to say that they have been
treated differently from others, not even enough that a
differential treatment has been accorded to them in
comparison with others similarly circumstanced.
Discrimination is the essence of classification and does
violence to the constitutional guarantee of equality only if it
rests on an unreasonable basis. It was therefore incumbent
on the respondents to plead and show that the classification
of Assistant Engineers into those who hold diplomas and
those who hold degrees is unreasonable and bears no
rational nexus with its purported object. Rather than do this,
the respondents contented themselves by propounding an
abstract theory that educational qualifications are germane at
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the stage of initial recruitment only. Omission to furnish the
necessary particulars was construed by this Court in two
cases as indicating that the plea of unlawful discrimination
had no basis. (4) Such an infirmity in pleadings led this Court
in State of Madhya Pradesh v. Bhopal Sugar Industries Ltd.
(5) to remand the matter to the High Court in order to enable
the petitioner therein to amend its petition."
9.5. The Apex Court in N. Abdul Basheer v. K. K.
Karunakaran [1989 Supp (2) SCC 344] has observed as
follows:
"15. The other contention raised before the High Court,
namely that the ratio 1:3 between graduates and non-
graduates is supportable on the ground that the recognition
of graduation is recognition of merit, and that more merit in
the post of Excise Inspectors would be conducive to better
administrative efficiency, is shortly disposed of. Ordinarily,
it is for the Government, should underlie a policy to be
formulated by it. But if the considerations are such as prove
to be of no relevance to the object of the measure framed
by the government it is always open to the court to strike
down the differentiation as being violative of Articles 14 and
16 of the Constitution. In the present case, we have
already commented on the circumstance that the conditions
of employment and the incidents of service recognise no
distinction between graduate and non-graduate officers and
that for all material purposes they are effectively treated as
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equivalent. Accordingly, this contention must also be
rejected.
9.6. Further, the Apex Court in M. Rathinaswami v.
State of T.N. [(2009) 5 SCC 625] observed as follows:
"20. It is true that in State of J&K v. Triloki Nath Khosa a
Constitution Bench of this Court observed that though the
persons appointed directly and by promotion were
integrated into a common class of Assistant Engineers, they
could, for the purpose of promotion to the cadre of
Executive Engineers, be classified on the basis of
educational qualifications. However, in Mohd. Shujat Ali v.
Union of India another Constitution Bench of this Court
qualified the rule laid down in Triloki Nath Khosa case and
observed that for promotion to a higher post, discrimination
based on educational qualifications not obligated by the
nature of duties or responsibilities of the higher post would
be violative of Article 14 of the Constitution."
10. The challenge in this case is essentially pointing out
the arbitrary nature of the fixation of the ratio on feeder
categories for promotion. In Elsy P. Sebastian (Supra), the
Division Bench of this Court acknowledged that a rule can be
struck down if it is arbitrary and unreasonable. The question,
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therefore, returns to whether the ratio, which ignores
proportionality based on cadre strength for promotion, violates
Articles 14 and 16(1) of the Constitution.
11. The main thrust of the argument is that the Leading
Firemen have a disproportionately high representation in
promotions compared to their cadre strength. This, in effect,
denies Driver Mechanics the opportunity for promotion to
Assistant Station Officer in comparison to Leading Firemen.
According to the petitioners, this imbalance has resulted in the
denial of a fair opportunity. The petitioners contend that Leading
Firemen and Driver Mechanics have been treated as equals and
that both should have an equal opportunity for promotion, based
on a fixed arithmetic ratio determined by cadre strength. The
challenge is laid against the alleged discrimination faced by the
Driver Mechanic.
12. The question is whether employees belonging to
different categories, which serve as feeder categories for
promotion, should be given a chance for promotion based on
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their cadre strength to balance their interests in having an equal
opportunity for promotion. To understand this issue, one needs
to ponder balancing different interests. What is the essence of
equality? Is it a mere opportunity for everyone to do the same?
We have to address this issue in the context of public
governance, where service conditions are fixed, not merely
based on an opportunity for promotion, rather on a well-
balanced objective to get the best quality of service at an
optimal level through a process where the competence and the
needs of the employer are equally addressed. True equality in
service jurisprudence lies in careful balancing of the interests of
public servants to optimise public service. The objective of
promotion is not based on an arithmetic equality of
representation in public service; rather, the focus is on the
overall requirement of government servants from different
backgrounds in the public service. It may not be possible to give
identical treatment for different categories on the premise of
cadre strength. The ratio is often fixed, not to ensure equal
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representation of different categories of Government servants, it
is rather to suit the larger interest of public service. Therefore,
the ratio cannot be questioned on an arithmetical or
mathematical formula. Any such view is purely mechanical,
compromising the goals and objectives of public service. The
ratio must align with the objectives of the employer/
Government, which is the appointing authority. This cannot be
treated on mechanical values relatable to cadre strength.
Equality is not a rigid mathematical formula applied, rather, it is
ingrained in the larger goals and objectives to be secured in
effecting promotion. Any rigid formula based on mathematical
calculation would adversely affect the interest of the
employer/appointing authority. How and in what manner the
ratio will have to be fixed is a matter of policy of the rule maker.
13. At this juncture, it is apposite to refer to the
following judgments.
13.1. The Apex Court in Dwarka Prasad v. Union of
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India [(2003) 6 SCC 535] has held as follows:
"16. Fixation of quotas or different avenues and ladders for
promotion in favour of various categories of posts in feeder
cadres based upon the structure and pattern of the
Department is a prerogative of the employer, mainly
pertaining to the policy-making field. The relevant
considerations in fixing a particular quota for a particular
post are various such as the cadre strength in the feeder
quota, suitability more or less of the holders in the feeder
post, their nature of duties, experience and the channels of
promotion available to the holders of posts in the feeder
cadres. Most important of them all is the requirement of the
promoting authority for manning the post on promotion
with suitable candidates. Thus, fixation of quota for various
categories of posts in the feeder cadres requires
consideration of various relevant factors, a few amongst
them have been mentioned for illustration. Mere cadre
strength of a particular post in the feeder cadre cannot be a
sole criterion or basis to claim parity in the chances of
promotion by various holders of posts in feeder categories.
17. Normally, where officers are to be drawn for promotion
from different posts in the feeder cadre, quota for each post
in the feeder cadre is maintained proportionately to the
sanctioned strength in that post. This, however, cannot be
an inviolable rule of strict application in every case, with an
absolute equality of arithmetical exactitude but may vary
from case to case depending upon the pattern, structure
and hierarchies in the departmental set-up as well as
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exigencies and balancing needs of administration. There are
other relevant considerations, some of which have been
mentioned above, which may require departure from the
practice of fixation of quota for each post in the feeder
cadre, solely proportionate to its strength."
13.2. Further, the Apex Court in K.R. Lakshman v.
Karnataka Electricity Board [(2001) 1 SCC 442] has
explained the scope of equality before law under Article 14 as
follows:
"4...The concept of equality before law means that among
equals the law should be equal and should be equally
administered and that the likes should be treated alike. All
that Article 14 guarantees is a similarity of treatment and
not identical treatment. The guarantee of equal protection
of law and equality before the law does not prohibit
reasonable classification. Equality before law does not mean
that things which are different shall be treated as though
they were the same. The principle of equality does not
absolutely prevent the State from making differentiation
between persons and things. The State has always the
power to have a classification on the basis of rational
distinctions relevant to the particular subject to be dealt
with but such permissible classification must satisfy two
conditions namely the classification to be founded on
intelligible differentia which distinguishes persons or things
that are grouped from others who are left out of the group
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and that the differentia must have a rational relation to the
object sought to be achieved by the legislation. In other
words, there must be a nexus between the basis of
classification and the object of the legislation. So long as
the classification is based on a rational basis and so long as
all persons falling in the same class are treated alike, there
can be no question of violating the equality clause. If there
is equality and uniformity within each group, the law cannot
be condemned as discriminatory, though due to some
fortuitous circumstances arising out of a peculiar situation,
some included in the class get an advantage over others, so
long as they are not singled out for special treatment.
When a provision is challenged as violative of Article 14, it
is necessary in the first place to ascertain the policy
underlying the statute and the object intended to be
achieved by it and having ascertained the policy and object
of the Act, the court has to apply a dual test namely
whether the classification is rational and based upon an
intelligible differentia which distinguished persons or things
that are grouped together from others that are left out of
the group and whether the basis of differentiation has any
rational nexus or relation with its avowed policy and
objects."
13.3. The Apex Court in Chiranjit Lal Chawdhuri v.
Union of India and Others [1951 AIR 41] has quoted the
following lines from Constitutional Law by Prof. Willis (1st
Edition) to elucidate the concept of arithmetic equality.
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"Mathematical nicety and perfect equality are not required.
Similarity, not identity of treatment, is enough. If any state
of facts can reasonably be conceived to sustain a
classification, the existence of that state of facts must be
assumed. One who assails a classification must carry the
burden of showing that it does not rest upon any
reasonable basis."
13.4. Further, the Apex Court in the State of J&K v.
Triloki Nath Khosa [(1974) 1 SCC 19] has elucidated the
limits of judicial review over classification under Article 14 as
follows:
"32. Judicial scrutiny can therefore extend only to the
consideration whether the classification rests on a
reasonable basis and whether it bears nexus with the object
in view. It cannot extend to embarking upon a nice or
mathematical evaluation of the basis of classification, for
were such an inquiry permissible it would be open to the
Courts to substitute their own judgment for that of the
legislature or the Rule-making authority on the need to
classify or the desirability of achieving a particular object."
13.5. Further, the Apex Court in A. Satyanarayana v. S.
Purushotham [(2008) 5 SCC 416] has held as follows:
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"23. We, however, are of the opinion that the validity or
otherwise of a quota rule cannot be determined on
surmises and conjectures. Whereas the power of the State
to fix the quota keeping in view the fact situation obtaining
in a given case must be conceded, the same, however,
cannot be violative of the constitutional scheme of equality
as contemplated under Articles 14 and 16 of the
Constitution of India. There cannot be any doubt
whatsoever that a policy decision and, in particular,
legislative policy should not ordinarily be interfered with
and the superior courts, while exercising their power of
judicial review, shall not consider as to whether such policy
decision has been taken mala fide or not. But where a
policy decision as reflected in a statutory rule pertains to
the field of subordinate legislation, indisputably, the same
would be amenable to judicial review, inter alia, on the
ground of being violative of Article 14 of the Constitution of
India. (See Vasu Dev Singh v. Union of India [(2006) 12
SCC 753 : (2006) 11 Scale 108] and State of Kerala v. unni
[(2007) 2 SCC 365].)
25. While saying so, we are not unmindful of the legal
principle that nobody has a right to be promoted; his right
being confined to right to be considered therefore.
26. Similarly, the power of the State to take a policy
decision as a result whereof an employee's chance of
promotion is diminished cannot be a subject-matter of
judicial review as no legal right is infringed thereby."
14. The fixation of the ratio purely falls within the domain
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of the executive. It cannot be questioned on the ground of
arbitrariness for the reason that the ratio does not represent
arithmetical equality. Balancing of interest is an exercise to be
done by the executive and the rule-making authority. Therefore,
the challenge must fail.
The original petition stands dismissed.
Sd/-
A.MUHAMED MUSTAQUE
JUDGE
Sd/-
P.KRISHNA KUMAR
JUDGE
rkj
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APPENDIX OF OP(KAT) 203/2023
PETITIONER ANNEXURES
Annexure A-1 TRUE COPY OF THE G.O.(P) NO. 99/88/HOME-
DT. 17-8-1988 ISSUED BY 1ST RESPONDENT
Annexure A-2 TRUE COPY OF THE G.O.NO. 185/2019/HOME- DT.
23-11-2019 ISSUED BY 1ST RESPONDENT
Annexure A-3 TRUE COPY OF STANDING ORDERS NUMBER 10/2020
DT. 07-10-2020 ISSUED BY 2ND RESPONDENT
Annexure A-3A ROUGH ENGLISH TRANSLATION OF STANDING
ORDERS NUMBER 10/2020 DT. 07-10-2020 ISSUED
BY 2ND RESPONDENT
M.A in O.A TRUE COPY OF M.A TO JOIN TOGETHER
PETITIONERS
Exhibit P-1 TRUE COPY OF THE ORIGINAL APPLICATION OA
Exhibit P-2 TRUE COPY OF ORDER DATED 27-02-2023 IN O.A
(EKM) NO.350 OF 2023 OF KERALA
ADMINISTRATIVE TRIBUNAL, ADDITIONAL BENCH,
ERNAKULAM
Exhibit P-3 TRUE COPY SERVICE ORDER NO.69/2023 DATED
25-5-2023
Exhibit P-4 TRUE COPY OF PROMOTION ORDER DT. 14-7-2023
