S. Prakash
& ANR Vs. K.M. Kurian & Ors [1999] INSC 210 (13 May 1999)
M
Jagannadha Rao, M.B.Shah Shah, J.
Leave
granted.
These
appeals are filed against the common judgment and order passed in Original
Petition Nos.11764 of 1996, 6540, 12539 and 13871 of 1997 and W.A. Nos.1842 and
1938 of 1996, 84 and 351 of 1997 by the Division Bench of the Kerala High Court
on 16th April, 1998. Persons selected to the post of Sales Tax Officers in the
Agricultural Income Tax and Sales tax Department by the Kerala Public Service
Commission filed petitions in the High Court. They were selected and included
in the ranked list published by the Commission on 13th May, 1995 which was to expire on 12th May, 1998. As authorities failed to appoint
them against the vacancies that arose in the quota earmarked for direct
recruits and since only a limited number of candidates have been appointed,
they approached the Court for a mandamus and consequential directions. The
learned Single Judge of the High Court of Kerala arrived at the conclusion that
Rule 5 deals with the subject-matter governed by the Special Rules and both
have to be harmoniously read and understood.
Therefore,
direct recruitment to 20% of the vacancies provided in the Special Rules shall
be worked out on the basis of the provisions contained in Note 3. The Court
also held that there is no repugnancy between Kerala Agricultural Income Tax
and Sales Tax Rules Category 3 and Rule 5 of the General Rules. The said
judgment and order was set aside in writ appeal. The Division Bench of the High
Court held that the amendment brought to the General Rules [Kerala State and
Subordinate Service Rules] as per notification dated 5th December, 1992 would
take away the rights of the petitioners for appointment against 20% of the
successive substantive vacancies arising in the cadre of Sales Tax Officers and
that the view taken by the Government was unsustainable.
Secondly,
it was held that amendment to the General Rules was in conflict with the
Special Rules and it will not hamper the rights of persons arising out of
Special rules.
Hence
petitions/appeals were allowed and the Secretary, Board of Revenue (Taxes) was
directed to work out 20% of the successive substantive vacancies for direct
recruitment as on 11th
August, 1987 and
arising thereafter as per the Special Rules so as to enable the Public Service
Commission to appoint the eligible candidates. That order is challenged before
us in this appeal by special leave.
Before
appreciating the contentions raised by the learned counsel for the parties and
for deciding the issue involved, it would be necessary to refer first to the
relevant rules of the Kerala State and Subordinate Services Rules, 1958 which is divided in
Parts I, II and III. Part I contains definitions; Part II contains General
Rules and Part III contains rules applicable to each Service or class of
service. Rules 2(8) provides that General Rules means rules in Part II of these
rules. Rules 2 and 5 of the General Rules are as under:- 2. Relation to the
Special Rules:- If any provision in the general rules contained in the part is
repugnant to a provision in the Special Rules applicable to any particular
service contained in Part III, the later shall in respect of that service,
prevail over the provision in the general rules in this part.
5.
Method of recruitment: - Where the normal method of recruitment to any service,
class or category is neither solely by transfer but is both by direct
recruitment and by transfer: - (a) the proportion or order in which the Special
Rules concerned may require vacancies to be filled by persons recruited direct
and by those recruited by transfer shall be applicable only to substantive
vacancies in the permanent cadre;
(b) a
person shall be recruited direct only against a substantive vacancy in such
permanent cadre, and only if the vacancy is one which should be filled by a
direct recruit under the Special Rules referred to in clause (a) and ©
recruitment to all other vacancies shall be made by transfer.
Note:
(1) All permanent vacancies and temporary vacancies except those of short
duration shall be treated as substantive vacancies.
(2)
Leave vacancies and vacancies of less than 6 months duration shall be treated
as vacancies of short duration.
(3)
Whenever a ratio or percentage is fixed for different methods of
recruitment/appointment to a post the number of vacancies to be filled up by
candidates from each method shall be decided by applying the fixed ratio or
percentage to the cadre strength of the post to which the recruitment/transfer
is made and not to the vacancies existing at that time.
The
aforesaid Note (3) was added by the Rules called the Kerala State Subordinate
Services (Amendment) Rules, 1992. The object and reason for amending the said
rule is mentioned in the Explanatory Note which inter alia provides that for
various posts in the Departments of Government, appointments are to be made by
direct recruitment and by transfer; the vacancies are filled up on the basis of
ratio or percentage fixed in the respective special rules;
Government
considered it necessary to clarify that proportionate vacancies to be filled up
by different methods should be calculated on the basis of the cadre strength
and not on the basis of total number of vacancies. For achieving the said
objects the Rules were amended. Further, the aforesaid Rules are to be
construed along with the Kerala Agricultural Income Tax and Sales Tax Services
(Rules). These Rules provides that the said service shall consist of categories
1,1A, 2, 3 and 4. Agricultural Income Tax Officers and other are mentioned in
Category 3. Rule 2 provides that appointment to the various categories shall be
made as follows: - Category Method of appointment
1.
------ -----
2.
------ -----
3.
Agricultural income tax 20% of the successive Officers, Intelligence
substantive vacancies shall be Officers, Sales Tax filled or reserved to be
filled Officers, Additional by direct recruitment and the Law Officer, Manager,
remaining shall be filled or Agricultural Income reserved to be filled by
transfer Tax and Sales Tax of Assistant Sales Tax Officers, Appellate
Tribunals, Sales Tax Inspectors, Agricultural Superintendents in the Income Tax
Inspectors, Agricultural Office of the Board of Income Tax and Sales Tax
Revenue (Taxes) and Inspectors, Intelligency Inspectors, Managers in the
Check-Post Inspectors and Junior Offices of the Deputy Superintendents of the Kerala
Commissioners of Agricultural Income Tax and Agricultural Income Sales Tax
Subordinate Service. Tax and Sales Tax.
Notwithstanding
anything contained In Rule 2(12) of Part I of the Kerala State and Subordinate Service Rules, 1958 persons employed in the
Agricultural Income Tax and Sales Sub-ordinate Service shall be allowed
relaxation of age limit up to five years to compete for direct recruitment. This
amendment shall be deemed to have come into force with effect from 1st April, 1981.
Learned
Counsel for the appellants submitted that Note (3) to Rule 5 of the General
Rules was added in to bring uniformity in calculating the ratio or percentage
of direct recruit and appointment by transfer in all services in the State of Kerala.
Therefore, the services that are covered by Special Rules also would be covered
by Rule 5 including Note (3). As against this, learned counsel for the direct
recruits whose names are appearing on select list submitted that there is
conflict between Note (3) to Rule 5 of the General Rules and the method of
appointment provided in the Kerala Agricultural Income Tax and Sales Tax
Services (Special Rules) as amended. Note (3) provides that the number of
vacancies are to be filled in from the direct recruits and transferees by
applying a fixed ratio or percentage to the cadre strength, while the Special
Rule contemplates that the percentage or ratio should be fixed by taking into
account the successive substantive vacancies arising at a point of time. It is,
therefore, submitted that in view of the aforesaid conflict Special Rules would
prevail particularly because of Rule 2 of General Rules provides that in case
of repugnancy between the two, special rule would prevail. He relied upon the
principle expressed in the maxim generalia specialibus non derogant which means
general things do not derogate from special things and generaliabus specialias derogant
which according to Osborns Law Dictionary means special things derogate from
general things. Before appreciating the rival contentions, we would first refer
to the established principles for interpreting the effect of amendment in Rule
5 of General Rules vis a vis the special rules for recruitment, which
prescribes ratio or percentage of appointment by direct recruitment, and by
transfer. The law on this point is well settled to the effect that from the
consideration of the general enactment if the intention of the legislature was
to establish a rule of universal application, in such cases, a special
provision must give way to the general provision. (Re: Maharaj Shree Umaid
Mills Limited vs. Union of India [1963 Suppl. (2) SCR 515 at 531]. Dealing with similar
situation in the case of M/s Dalmia Dadri Cement Co. Ltd. vs. The Commissioner
of Income Tax [1959 SCR 729 at 737], this Court observed: - Now the rule of
construction expressed in the maxim generalia specialibus non derogant is well
settled, and we shall also assume in favour of the appellant that the agreement
Ex.A, is a special law in the nature of a private Act passed by the British
Parliament, and that accordingly s. 3 of the Ordinance should not be construed,
unless the contrary appears expressly or by necessary implication, as repealing
the provisions of Ex. A. But ultimately, the question is what does the language
of the enactment mean? If the language is clear and unqualified, general rule
would prevail. Similarly, in the case of Ajay Kumar Banerjee vs. Union of India
[1984 (3) SCC 127 (page 153)] the Court dealt with the rule of interpretation
with regard to the general law as well as the special law and held as under: -
The general rule to be followed in case of conflict between two statutes is
that the later abrogates the earlier one. In other words, a prior special law
would yield to a later general law, if either of the two following conditions
is satisfied: (i) The two are inconsistent with each other. (ii) There is some
express reference in the later to the earlier enactment. If either of these two
conditions is fulfilled, the later law, even though general, would prevail.
The
Court further held: From the text and the decisions, four tests are deducible
and these are (i)The Legislature has the undoubted right to alter a law already
promulgated through subsequent legislation, (ii) A special law may be altered,
abrogated or repealed by a later general law by an express provision, (iii) A
later general law will override a prior special law if the two are so repugnant
to each other that they cannot co-exist though no express provision in that
behalf is found in the general law, and (iv) It is only in the absence of a
provision to the contrary and of a clear inconsistency that a special law will
remain wholly unaffected by a later general law. See in this connection,
Maxwell on the Interpretation of Statutes, Twelfth Edition, pages 196-198.
Further,
in the case of R.S. Raghunath vs. State of Karnataka and Another (1992) 1 SCC 335, the Court dealt with the Karnataka
General Services (Motor Vehicle Branch) (Recruitment) Rules, 1976. In
concurring judgment, Kuldip Singh, J. observed: Even the general law later in
time, prevails over the earlier special law if it clearly and directly
supercedes the said special law is an unexceptionable proposition of law.
In the
aforesaid case, Jayachandra Reddy, J.referred to the decision in Reserve Bank
of India vs. Peerless General Finance and Investment Co. Ltd. 1987(1) S.C.C. 424
wherein the Court observed: interpretation is best which makes the textual
interpretation match the contextual and relied upon the following paragraph 33
of the said judgment: Interpretation must depend on the text and the context.
They are the basis of interpretation. One may well say if the text is the
texture, context is what gives the colour. Neither can be ignored. Both are
important.
That
interpretation is best which makes the textual interpretation match the
contextual. A statute is best interpreted when we know why it was enacted. With
this knowledge, the statute must be read, first as a whole and then section by
section, clause by clause, phrase by phrase and word by word. If a statute is
looked at, in the context of its enactment, with the glasses of the statute-
maker, provided by such context, its scheme, the sections, clauses, phrases and
words may take colour and appear different than when the statute is looked at
without the glasses provided by the context. With these glasses we must look at
the Act as a whole and discover what each section, each clause, each phrase and
each word is meant and designed to say as to fit into the scheme of the entire
Act. No part of a statute and no word of a statute can be construed in
isolation.
Statutes
have to be construed so that every word has a place and everything is in its place.
Learned
counsel for the appellant also referred to Craise on Statute Law, page 381
which is as under :- (iii) Special enactment repealed by implication if utterly
repugnant to subsequent general Act.
But
the rule must not be pressed too far, for, as Bramwell L.J. said in Pellas vs.
Neptune Marine Insurance Co. (1980) 5 C.P.D. 34, 40 a general statute may
repeal a particular statute/ And if a special enactment, whether it be in a
public or a private Act, and a subsequent general Act are absolutely repugnant
and inconsistent with one another, the courts have no alternative but to
declare the prior special enactment repealed by the subsequent general Act. Thus
in Bramston vs. Colchester Corpn. (1856) 6 E & B. 246,
253, 254 it was held that the provisions of a local Act, under which certain
arrangements had been made for maintaining borough prisoners in county goals,
were repealed by section 18 of the general Prisons Act 1842 for, said Lord
Campbell C.J., I think it was the intention of the legislature to sweep away
all local peculiarities, though sanctioned by special Acts, and to establish
one uniform system except in so far as these are express exceptions; and
Wightman J. added It was intended to make one general law superseding all local
laws as to prisons and repealing all local Acts.
As
against this, learned counsel for the respondents referred to the decision in
A. B. Krishna and Others vs.
State
of Karnataka and Others [(1998) 3 SCC 495] and submitted that where there are
general words in a later Act capable of reasonable and sensible application
without extending them to subjects specially dealt with by earlier legislation,
special rule cannot be held to be indirectly repealed or altered merely by
force of such general words without any indication of a particular intention to
do so.
From
the aforesaid discussion, it is clear that if the intention of the rule making
authority was to establish a rule of universal application to all the services
in the State of Kerala for which special rules are made,
then special rules will give way to the general rules enacted for that purpose.
This has to be found out from the language used in the rules which may be
express or by implication.
If the
language is clear and unqualified, subsequent general rule would prevail
despite repugnancy. If the intention of the rule-making authority is to sweep
away all the special rules and to establish a uniform pattern for computation
of the ratio or percentage of direct recruits and by transfer, in such case,
the special rules will give way. On the basis of the aforesaid settled
principles, let us interpret rule 5 as well as Note (3) and the method of
recruitment prescribed under the special rules. Rule 5 quoted above provides
method of recruitment to any service, class or category where the method of
recruitment is neither solely by direct recruitment nor by transfer but is both
by direct recruitment and by transfer. It is made specifically applicable to
the special rules. Clause (a) provides that the proportion or order will be applicable
only to substantive vacancies in permanent cadre; clause (b) provides that
direct recruitment shall be only against substantive vacancy in permanent
cadre; and recruitment to all other vacancies shall be made by transfer. Note
(1) and (2) provide that all permanent vacancies and temporary vacancies except
those of short duration shall be treated as substantive vacancies. Note (3)
specifically provides that whenever a ratio or percentage is fixed (in special
Rules) for different methods of recruitment to a post, the number of vacancies
to be filled up by candidates from each method is to be decided by applying a
fixed ratio or percentage to the cadre strength of the post to which the
recruitment is made and not to the vacancies existing at that time.
Therefore,
the entire Rule 5 deals with the special rules which provide for filling up of
the vacancies to any service, class or category by direct recruitment and by
transfer. The language of Note (3) is crystal clear and is for removal of any
ambiguity by using positive and negative terms. It applies to all special rules
whenever a ratio or percentage is prescribed in the Rules. It also emphathetically
states that it has to be computed on the cadre strength of the post to which
the recruitment is to be made and not on the basis of the vacancies existing at
that time. Further, the special rules that provide for different categories and
method of appointment, mention for the posts of Agricultural Income Tax
Officers and Ors. in category
3. In
the said category, method of appointment is (i) 20% of the successive
substantive vacancies is to be filled or reserved to be filled by direct
recruitment and (ii) the remaining is to be filled or reserved to be filled by
transfer. But, how the successive substantive vacancies of permanent nature as
provided in Rule 5 clauses (a), (b) and note (1) are to be calculated or
computed is not provided. It nowhere provides that vacancies which are to be
filled up should be calculated on the basis of existing vacancies at a particular
point of time or year or at the time of recruitment. For filling up the said
lacuna and also for avoiding any controversy as well as to have a uniform
pattern in all services with regard to filling up of vacancies in all cadres in
the State services on the basis of fixed ratio or percentage between the direct
recruit and appointment by transfer, Note (3) is added. If we take an
illustration that cadre strength of a particular post is 1000 and the
recruitment is to be made to 100 substantive vacancies, the authority has to
find out how many direct recruits and transferees are holding the said post. If
transferees are holding 700 posts and direct recruits are holding 200 posts
then in such a situation 20% quota of direct recruit is already filled up. Therefore,
appointment would be required to made only by transfer. As against this, if
direct recruits are holding only 100 posts and remaining 800 posts are held by
transferees, then 100 posts would be required to be filled up by direct recruit
(20% of 1000) and remaining 100 posts would be required to be filled up by
transfer. This would remove the imbalance of percentage between direct recruit
and the transferees for most of the times. The result would be the question of
reserving the post either for the direct recruit or for the transferee might
not survive, as all throughout the proportion or ratio would be maintained.
Further, by adding Note (3) to Rule 5, the object of the Government was to
achieve uniformity of calculating the successive substantive vacancies for
appointment. The learned counsel for the respondent vehemently contended that
as per Rule 2 of the General Rules quoted above, if there is any repugnancy
between the general rule and the special rules applicable to any particular
service, then, special rules are to prevail in respect of said service over the
provisions in the general rules. It is submitted that Rule 5 and Note (3) of
that Rule are part of the general rule and, therefore, the special rule in the Kerala
Agricultural Income Tax and Sales Tax Services prescribing method of
appointment would prevail. It is contended that the said rule specifically
provides that 20% of the successive vacancies shall be filled up by direct
recruit and remaining shall be filled by transfer. It is, therefore, submitted
that whenever substantive vacancies are to be filled in, 20% of the said
vacancies are required to be filled in by direct recruit and remaining
vacancies are required to be filled in by transfer. He referred to the maxim generalia
specialiabus non derogant meaning thereby general things do not derogate from
special things and generaliabus specialias derogant which means special things
derogate from general things. In our view, the aforesaid submission is without
any substance.
As
discussed above, rule 5 of the General Rule is enacted to govern special rules
with regard to the method of recruitment in cases when appointments are by
direct recruitment and by transfer in any substantive vacancies in permanent
cadre. The language used in Rule 5 is clear and unqualified. The intention of
the legislature of adding Note 3 is also clear and is added to fill in existing
lacuna in the method of recruitment provided in special rules. As stated above,
for appointment to category 3, i.e. to the post of Agricultural Income Tax
Officers and others, method of appointments only provides that 20% of
successive substantive vacancies shall be filled or reserved to be filled by
direct recruitment and the remaining vacancies are to be filled or reserved to
be filled by transfer. On what basis the substantive vacancies are to be
determined was not provided and therefore that lacuna is filled up by the
aforesaid Note (3) in Rule 5. In any case, even if there is repugnancy or
inconsistency, the law is settled to the effect that general rule later in time
prevails over earlier special rule if it clearly and directly supercedes the
special rule. It is also well settled that special rule can be altered,
abrogated or repealed by general rule by an express provision. In the present
case, the language of Note (3) specifically makes it applicable to general rule
stating whenever the ratio or percentage is fixed for different methods of recruitment,
the method prescribed therein would apply. So the word whenever would cover
special rule prescribing ratio or percentage of appointment between direct
recruit and by transfer and the Rule making authority has specifically provided
that ratio or percentage for the vacancies is to be computed on the basis not
to the vacancies existing at that time, but on the basis of the cadre strength.
Hence, there is no question of repugnancy between Rule 5, Note (3) and the
method of appointment provided in special rules. Further, in the present case,
Note 3 was added by amending Rules with effect from 5th December, 1992 while list of persons selected by Public Service Commission
for appointment to the Cadre was published on 13th May, 1995. Therefore, persons who were selected and whose names are
included by the Public Service Commission in the select list would have no
right to say that their recruitment should be governed by the Rules which were existing
prior to 1992. However, it has been contended by learned counsel for the
selected candidates whose names are appearing in the Select List that process
of recruitment started on 11th August, 1987 when the Public Service Commission
issued advertisement inviting applications for the post of Sales Tax Officers
by direct recruitment (The number of notified vacancies was 16) and that their
appointments should be made on the basis of the Rules existed at the relevant
time. It is submitted that the amended Rules would govern the future selection
and will have no retrospective effect. In our view, in the present case, there
is no question of giving retrospective effect to the Rules which are amended in
1992. Its effect is to be given after its amendment and in the present case
after 1995 when the selection process was over. It is to be stated that the
addition of Note 3 does not deal with the selection process which was started
in 1987 and the selection process is not altered or amended. It is also well
settled that a candidate selected and kept on select list does not acquire any
absolute right to appointment. Therefore, it is open to the Government to
decide how many selected candidates are to be appointed in service on the basis
of ratio or percentage prescribed in the service rules. Learned counsel for the
respondents have relied upon the G.O.M.S. No. 233/85/GAD dated 27.6.1985. That
G.O. reads as follows: - The G.O.
read
above lays down among other things, that any change made in the qualifications,
age or method of appointment etc. prescribed for a post after the issue of the
notification by the Kerala Public Service Commission inviting applications in
the Gazette in respect of that post will be given effect to for future
selections only. In the letter read above the Secretary, Kerala Public Service
Commission has advised that the clarification may be issued regarding the scope
and ambit of the above Government order.
2.
Government have accepted the advice of the Public Service Commission and are
please to clarify that the changes in qualifications, method of appointment,
age or other conditions of recruitment introduced after the issue of a
notification for selection to the post by the Public Service Commission will be
given effect to in future selections only, except in cases where the changes
announced amount to concessions or exemptions to which persons already included
in the ranked list as well as prospective candidates will be entitled and where
the changes are of such a minor nature that they can be given effect without
the necessity of upsetting any selection procedure under way or of revising the
ranked lists already prepared.
3. The
sub-para (2) of the G.O. read above will stand modified to the above extent.
From
the aforesaid G.O., it is clear that during the selection process, Government
had accepted the advice of the Public Service Commission that the changes in
the qualifications, method of appointment, age or other conditions of
recruitment introduced after the issue of notification for selection to the
post by the Public Service Commission will be given effect to in future
selections only with an exception as mentioned therein. As stated earlier, in
the present case selection process was not over till the list of selected
candidates was published by the Public Service Commission on 13th May, 1995 and
the impugned Note (3) does not change qualifications, method of appointment,
age or other conditions of recruitment. It only fills up the lacuna or
clarifies the ambiguity prevailing for computation of ratio or percentage for
appointment by direct recruitment and by transfer. Because of the aforesaid
factual position, in our view, it is not necessary to discuss judgments cited
by the learned counsel for the respondents. However, we would refer to one
decision rendered by this Court in Rajasthan Public Service Commission vs. Chanan
Ram and Another [(1998) 4 SCC 202] wherein after considering the decision in
the P.Ganeshwar Rao vs. State of Andhra Pradesh [(1998) Supp SCC 740], this
Court held that if the recruitment rules underwent amendment prior to actual
filling up of the advertised posts, the amended rules would apply. The Court
also referred to a three-Judge Bench judgment of this Court in Jai Singh Dalal
vs. State of Haryana [1993 Supp (2) SCC 600] wherein it has been held that when
the special process of recruitment had not been finalised and culminated into
select list, the candidate did not have any right to appointment and that
recruitment process could be stopped by the Government at any time before a
candidate has been appointed and as the candidate has no vested right to get
the process completed except that the Government could be required to justify
its action on the touchstone of Article
14. In
this view of the matter, we hold that the amendment brought to the general
rules (Kerala State and Subordinate Services Rules) by the Notification dated 5th December, 1992 or as pointed out when it was published
in the gazette, i.e.
2nd
February, 1993 is not repugnant to special rules and that there is no question
of taking away the rights of the candidates who were selected by the Public
Service Commission. In the result, the appeals are allowed, the impugned
judgment and order passed by the Division Bench is set aside and the order
passed by the learned Single Judge is restored.
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