Rajkumar G vs State Of Kerala

Mohammed Nias.C.P. J.

This appeal is filed against the dismissal of the writ petition, WP(C)No.19432 of 2022 filed by the appellant that sought to quash Ext.P5 notification and a declaration that persons who are above 30 years are also eligible to apply for the post of Schedule Caste Promoters (hereinafter referred to as "SC Promoters"). The brief facts necessary for the disposal of the writ appeal are as follows:-

The petitioners were working as SC Promoters on contract basis in different offices in the Districts of Idukki and Pathanamthitta. Earlier a Government order was issued on 20/7/2010 which prescribes the duty attached to the post of the SC promoters. Thereafter, on 24/12/2014, another Government Order was issued prescribing the procedure for appointment of persons including the petitioners who were working as SC Promoters. The SC Promoters approached the Kerala Administrative Tribunal(KAT) challenging the said Government Order as also seeking their regularization. The Kerala Administrative Tribunal (KAT) by Ext.P2 order dated 23/5/2017 found that the plea raised by the petitioners for regularization in service cannot be accepted finding that the engagement was only contractual in nature. However, clause III of the Government Order dated 24/12/2014 barring SC Promoters, who have 8 years or more service, from being considered for selection was set aside. It was also stated that there is no legal embargo for replacing the SC Promoters who have been appointed purely on contract basis. It also directed to conduct a fresh selection process to persons who have not been permitted to participate. Subject to this all other contentions of the petitioners were rejected. Not satisfied with the judgment of the Tribunal, the petitioners had preferred OP(KAT) before this court which resulted in Ext.P3 judgment, wherein, the order of the Tribunal was not interfered with. However, the Court found that it was appropriate to modify clause II of the Government Order dated 24.12.2014 to the extent that preference shall be given to the persons in the age group of 40-50 so that 10% of the total number of vacancies to the post of SC Promoters shall be filled up by people who have crossed 40 years of age, but not attained 50 years. The said order was challenged before the Supreme Court , the same was disposed of by Ext.P4 order clarifying that:

"However, even as observed by the High Court, it will be open for the respective petitioners to compete with other petitioners as and when fresh recruitment process for the post in question is undertaken without the cap of 8 years service. We reiterate the same and observe that as and when fresh selection takes place for the post in question under the scheme, it will be open to the petitioners to apply and compete with other eligible candidates/petitioners and their case be considered in accordance with law and on its own merits."

It is on the strength of the above orders that the petitioners contend that irrespective of the age they are eligible to apply for the post as and when fresh selection process is initiated. By Ext.P5 notification dated 28.2.2022, fresh notification was issued for appointment to the post of SC Promoters with a stipulation that the eligible candidates must be within the age limit of 18-30. It is relevant to note that the previous scheme was changed and the new scheme was notified under Ext.P5. Thus, according to the petitioners, Ext.P5 was intended to exclude the petitioners in violation of Exts.P2 to P4 orders. The petitioners, therefore, seek to challenge Ext.P5 dated 28.2.2022 and also the decision taken on 31.3.2022 to terminate the services of the petitioners. They also prayed for issuing a fresh notification so as to make them eligible to appear.

The contention of the Government was that the engagement of the SC Promoters was only on contract basis and for a purpose of the scheme of the Government. It is also stated that mere fact that the project is a continuing one cannot confer any right to appointment to those who are specifically engaged on contract basis for a fixed period to contend that they are entitled to continue in service after the period of contract or seek regularisation. It is further contended that as a matter of fact the claim for regularisation was specifically considered by the KAT and by this Court in the earlier occasions and had found that persons like the petitioners who are engaged on a contract basis had no claim for regularization or continuance in service. All that was found that in the earlier round of litigation was that exclusion of the persons, who fall within the eligibility conditions, but who were rendered ineligible to apply only because they had completed 8 years of service not being informed by any rationale nexus was interfered with. Thereafter, the Government considered the entire aspects of the matter and found that the eligibility criteria for selection of SC Promoters had to be revised and as a part of this exercise the earlier Government orders were cancelled and fresh Government Order, Ext.P5 was issued prescribing the revised criteria. It was held that the services of young and tech savvy persons were required in the nature of the job carried out by the SC Promoters and thus a restriction was placed on the age of eligibility as 18-30 years.

The learned single Judge, who considered the matter found that the specific contention raised by the petitioners in the earlier round of litigation was for a regularisation of service in view of the continuing nature of the project. The said contention was specifically negated by the Tribunal and the same was affirmed by this Court and by the Supreme Court. All that was interfered with was clause III of the Government Order dated 24.12.2014 which provided that persons who had completed 8 years as SC Promoters would not be considered for selection. The learned single Judge also considered paragraphs 32 to 35 of the KAT order. In that view of the matter the learned single Judge found that the question decided in Exts.P2 to P4 judgments was validity of clause II and III of the Government Order. Even in that case it was found that the prescription of the age and educational qualification in the said Government Order and the notification were found to be within the exclusive domain of the Government. Thus, on the premise that exclusion of such persons only because they had completed 8 years of service in the post had no reasonable nexus to the object sought to be achieved, the action was found to be bad. The learned single Judge also found that it was for the Government to prescribe the eligibility criteria which in the instant case was an informed policy decision. Therefore, it was found that the prescription of age limit of 30 years did not offend the findings in the earlier round of litigation and relying on the judgments of the Supreme Court and this Court which upheld the power of the rule making authorities to fix the age limit and the qualification, the stand of the Government for the changes in the previous scheme was accepted by the learned Single Judge. The contention on behalf of the petitioners that, the revised scheme with eligibility conditions was meant only to weed out the petitioners, was also rejected while dismissing the writ petition.

In the appeal before us, the learned counsel for the appellants contended that the impugned order is against the findings in Exts.P2 to P4 judgments and that even in the earlier round of litigation, the right of the petitioner to compete with other petitioners as and when a fresh recruitment process is undertaken was reserved and thus according to the learned counsel the present notification goes against the inter partes judgments mentioned above. The liberty that was granted by Exts.P2 to P4 judgments have been taken away by Ext.P5 is the contention. We are unable to accept the said contention. As rightly found by the learned single Judge, the judgments earlier rendered, Exts.P2 to P4 cannot be understood to fix any eligibility conditions which is the prerogative of the Government. The order of the Supreme Court only allowed the petitioners to partake in a fresh selection process along with other eligible candidates as per the relevant eligible criteria to be issued.

The power of the Government to issue a notification prescribing the eligibility criteria cannot be said to be taken away by Ext.P2 to P4 judgments. The effect of accepting the contentions that by Ext.P5 notification, findings in Exts.P2 to P4 are taken away is to hold that the eligibility criteria was fixed in the earlier judgments and the same is violated by issuing Ext.P5 notification. Since that is not the case, the said contention of the learned counsel cannot be accepted. Exts.P2 to P4 judgments did not confer any right to the petitioners to apply even if they did not meet the eligibility criteria. The learned single Judge had rightly found, adhering to the principles applicable by noticing the judgments of the Supreme Court and this Court which recognized the power of the Government/employer/rule making authority to fix or change the eligibility criteria including age limit for applying. The challenge to Ext.P5 notification on the ground that the fresh selection and the eligibility criteria prescribed was intended to weed out the petitioner cannot be accepted in the absence of any material to suggest the same. Inasmuch as Exts.P2 to P4 judgments did not prescribe or suggest any eligibility criteria in the fresh selection process, we feel that the contention that, by issuing Ext.P5 notification the directions/observations in Exts.P2 to P4 judgments are violated, is only to be rejected and we do so. No other contention is urged.

In view of the reasons stated above, we hold that there is no merit in the writ appeal and the same is, accordingly, dismissed.