Raghunandanan vs Greater Cochin Development Authority and Another

Kochu Thommen, J.—The Petitioner entered the service of the Greater Cochin Development Authority (the "G.C.D.A.") as a Junior Engineer (now redesignated as Assistant Engineer) on 1st April 1978. He is an aspirant for promotion to the higher post of Assistant Executive Engineer (formerly known as Assistant Engineer).

Under Rule 24 of the Greater Cochin Development Authority Rules, 1977, it is provided as follows:

Qualifications and method of recruitment.--(1) The Authority shall with the prior approval of the Government, fix the qualifications and method of recruitment to the various posts under it.

(2) Where no qualifications have been fixed under Sub-rule (1) the qualifications fixed for posts of similar standing and status under the Government shall be followed.

(3) No person shall be appointed to a post under the Authority if he does not possess the qualifications fixed for that post under Sub-rule (1) or Sub-rule (2):

Provided that the authority may relax the qualifications in the case of officers and servants of the Central Government or State Government or of a local authority deputed to the authority on foreign service conditions.

No qualifications have been so far framed by the Greater Cochin Development Authority. Accordingly qualifications fixed by the Government for posts of similar standing and status are being followed by the Greater Cochin Development Authority in the matter of appointment and promotion. Admittedly, the relevant Government Rules are those applicable to the Kerala Engineering Service (General Branch)(hereinafter referred to as the "Government Rules"). Rule 3 of these rules refers to the various categories of which category 4 is Assistant Engineers. It reads:

Appointment.--(a) Appointment to the several categories shall be made as follows:

(b) Promotions and appointments by transfer shall be made from select lists of eligible officers prepared on the basis of merit and ability, seniority being considered only where merit and ability are approximately equal. Persons included in a select list shall be ranked in the order of their seniority.

Rule 4(a) of the Government Rules lays down the qualifications. The relevant portion of Clause (d) of this rule reads:

(d) A Junior Engineer shall not be eligible for appointment as Assistant Engineer unless-

(7) he has rendered service under Government for a total period of not less than 3 years and possesses the qualification mentioned in item (i) or in Section-A in item (ii) of the Annexure, or.

....

The controversy is as regards ''service''. The question is whether the expression ''Government'' means only the Kerala Government or any other Government under the Constitution. The Petitioner admittedly possesses the qualification mentioned in the Annexure.

When the Petitioner sent Exts. P-3 and P-4 representations to the Greater Cochin Development Authority pressing his claim for promotion, the question arose whether the Petitioner�s service under the Government of Tamil Nadu could be accepted as qualifying service in terms of Rule 4(d)(1) of the Government Rules. The Petitioner had served the Tamil Nadu Government for 6� years before he joined the Greater Cochin Development Authority. Before joining the Tamil Nadu Government, the Petitioner had served the Kerala Government for 1� years, which period was not sufficient for the purpose of the Government Rules. If the service of the Petitioner under the Tamil Nadu Government was not reckoned as service for the purpose of Rule 4(d)(1) of the Government Rules, the Petitioner would not be qualified for promotion under the Greater Cochin Development Authority. To clarify this doubt, the Greater Cochin Development Authority wrote to the Government asking for their opinion in the following words:

Sri P. Raghunandanan, a Graduate Engineer in Greater Cochin Development Authority had served in the Tamil Nadu Water Supply and Drainage Board as Junior Engineer for more than six years. It may kindly be clarified whether the service rendered by Sri Raghunandanan under the Government of Tamil Nadu can be counted for the purpose of promotion under Rule 4(d)(1) of the Kerala Engineering Service Rules.

To this, the Government sent Ext. P-5 reply, the relevant portion of which reads:

In regard to the 3 years service mentioned under Rule 4(d)(1) of the said rules can only be the service under the Kerala Government.

In view of this observation of the Government the Petitioner apprehends that the Greater Cochin Development Authority would refuse him promotion. He has therefore come to this Court for a direction to the Greater Cochin Development Authority to consider him for promotion.

The fact that the Greater Cochin Development Authority has failed to make rules laying down the necessary qualification for promotion should not stand in the way of a person being considered on merits if he is qualified for promotion by a purposeful construction of the relevant Government Rules, i.e., a construction which has reference to, and is in harmony with, the purpose of adopting the Government rules by the Greater Cochin Development Authority. If the Government rules are understood literally, it may, as in the present case, lead to inequality and injustice. The Government rules have been made for the purpose of the Government and they have to be understood in that context. If those rules are imported without the necessary adaptation and harmonisation for the purpose of the Greater Cochin Development Authority, the rules, as we shall see, will do injustice to persons who are otherwise qualified to be promoted. If Rule 4(d)(1) is understood in the manner that it is sought to be read by the Greater Cochin Development Authority, as advised by the Government, it would mean that a person who has served the Greater Cochin Development Authority for a number of years, but has not served the State Government for the requisite 3 years, would not ever be qualified for promotion, whereas his juniors in the Greater Cochin Development Authority with 3 years of service in the State Government would supersede him. This would not do justice to the employees of the Greater Cochin Development Authority, as it would result in hostile discrimination against a class of employees. While Rule 4(d)(1) serves the purpose of the Government very well, it would not serve the purpose of the Greater Cochin Development Authority unless a harmonious and purposeful construction is placed upon it. I see no reason why a person who has served the Greater Cochin Development Authority for not less than 3 years and is otherwise qualified should not be considered for promotion if his counter-part under the Government would be considered for promotion if he had served the Government not less than 3 years and is otherwise qualified. Comparison must of necessity be on such basis. If 3 years under the Government is good enough for the Government for promotion, it must likewise be good enough for the Greater Cochin Development Authority if a person has served that long under the Greater Cochin Development Authority. This construction however would not help the Petitioner for he has neither served the Government of Kerala nor the Greater Cochin Development Authority for the requisite period of 3 years, although he has served the Greater Cochin Development Authority for nearly 2 years and 9 months to date. The question would therefore be whether his service under the Tamil Nadu Government is as good a qualifying service as it would be if he had served the State Government.

The service rendered under Rule 4(d) of the Government Rules is a qualifying service. It is not a service which is intended for being reckoned to ascertain seniority. A rigid construction of ''service'', as understood for the purpose of seniority, is not called for when it is understood as a qualifying service. Here ''service'' is a service which gives him the necessary experience and qualification for being considered for promotion. It was so understood by this Court in Kunhikrishnan Nambiar v. Stated 1964 KLT 704 (B.B.). This Court stated:

Under the regulation, what is required is actual service in the post, and questions such as whether that service counts for purposes of fixation of rank in the seniority list, or whether it is what is called regularised service, or whether it is in a time scale of pay and is reckoned for grant of increments, are entirely irrelevant considerations. In rejecting the so-called temporary service of the Petitioners for purposes of eligibility under regulation 4 on these altogether irrelevant considerations, the State Government was clearly in error.

This principle I had occasion to follow in O.P. No. 1094 of 1980 and connected cases where the question arose whether temporary service under the State Government was sufficient for the purpose of reckoning qualifications. Here the question is slightly different, for, the service was not rendered under the State Government. Nevertheless it was a service rendered by the Petitioner under the Government of Tamil Nadu and it has presumably enriched him with experience and qualification. Why that service should not be reckoned for the purpose of qualification in terms of Rule 4(d)(1) of the Government Rules as applied to the Greater Cochin Development Authority, I fail to see.

Counsel for the Greater Cochin Development Authority submits that the Petitioner joined the Greater Cochin Development Authority with open eyes and ought to have understood that they had not made rules concerning promotion, and that they depended upon the Government Rules. The Petitioner, he says, ought to have realised that the Government Rules would stand in the way of his promotion. The question is whether the Petitioner joined the Greater Cochin Development Authority with open eyes, for, the Greater Cochin Development Authority did not themselves understand what exactly was the import of Rule 4(d)(1) as is clear from the letter addressed by them to the Government for clarification. In fact the rule is difficult to understand in its application to the Greater Cochin Development Authority unless it is harmoniously and purposefully construed. Adoption of Government Rules by an outside agency must be based on equitable and beneficial adaptation. The fact that the Petitioner joined the Greater Cochin Development Authority without raising this question does not mean that he is in any manner estopped from contending that the rule should be so construed as to do justice to the employees. I have no doubt that at the time of the Petitioner''s appointment as a Junior Engineer under the Greater Cochin Development Authority, his previous experience had been taken into account. The fact that he served the Government of Tamil Nadu for 6� years must necessarily have weighed with the Greater Cochin Development Authority, in considering him qualified for appointment as a Junior Engineer. The service under the Tamil Nadu Government was therefore not a period of void or vacuum as it were. It was a period of service and it was rich in experience. It cannot be ignored when considering the qualification of the Petitioner. So understood, Rule 4(d)(1) which is, for the purpose of the Government, absolutely satisfactory when read literally, is not, for the purpose of the Greater Cochin Development Authority, satisfactory or applicable unless read in the manner suggested by me. I would therefore read the relevant portion of Rule 4(d)(1) for the purpose of determining qualification for promotion under the Greater Cochin Development Authority, as follows:

...unless-

(1) he has rendered service under a Government in India or under Greater Cochin Development Authority, for a total period of not less than 3 years and possesses the qualification mentioned in item (i) or in section-A in item (n) of the Annexure.

The meaning of Rule 4(d)(1) in its application to the Greater Cochin Development Authority for determining qualification--but not for any other purpose--is so declared. In the light of this declaration I direct the Greater Cochin Development Authority to consider the Petitioner''s candidature for promotion to the post of Assistant Executive Engineer.

The Original Petition is allowed in the above terms. No costs.