K. Raghavan v. The District Judge Palghat — 1982 DIGILAW 45 (KER)

JUDGMENT M.P. Menon, J. 1. The petitioner commenced service as L.D. Clerk in the courts of the erstwhile Malabar District, in 1952. He was allotted to the Kerala State on 1st November, 1956. By virtue of Art.372(1) of the Constitution and S.119 of the States Reorganisation Act, the Special Rules for the Madras Judicial Ministerial Service continued to govern the service conditions of such allotted employees after 1st November 1956 also. Under the said rules, L.D. Clerks could be promoted as U.D. Clerks only after passing the Civil Judicial Test and the Account Test. The petitioner passed the Civil Judicial Test in 1965, and it is common ground that the date of passing this test can be taken as 12th June, 1965. He passed the "unified test" introduced by Kerala Government, on 18th October, 1966. Treating this as sufficient qualification in Account Test, he was promoted as U.D. Clerk in 1969. 2. As a result of orders passed by the Kerala Government in 1970 or 1971, a few additional posts of U.D. Clerks were created in the courts of Malabar from 1st September, 1964. The petitioner claimed that he was entitled to get one of the vacancies which had arisen on 15th July, 1965 and this claim was originally upheld. But by Ext. P-10 order dated 1st July, 1978, the District Judge of Palghat reviewed the matter and held that the petitioner could get a U.D. vacancy only from 1st June 1968. His seniority was thus affected, and respondents (2) to (4) became senior to him. This writ petition is to quash Ext. P-10. 3. The circumstances under which Ext. P-10 came to be passed can now be traced. The Kerala Government was holding two kinds of Account Tests after 1st November, 1956, one for the ex-Madras personnel, and another for the ex-T.C. hands and officers appointed into the services of the Kerala State after 1st November, 1956. By Ext. P-1 G.O., dated 14th January, 1963, Government decided to introduce a new test called the 'unified test'. Ext. P-2 G.O., dated 23rd October, 1963 ordered that commencing from 1st January, 1964, only the unified test would be conducted. By Ext. P-1 G.O., dated 14th January, 1963, Government decided to introduce a new test called the 'unified test'. Ext. P-2 G.O., dated 23rd October, 1963 ordered that commencing from 1st January, 1964, only the unified test would be conducted. It appears that the Government of India intervened and pointed out to the State Government that introduction of a new test of higher standard would adversely affect the service conditions of allotted employees, and that in order to safeguard their interests under the proviso to S.115(7) of the States Reorganisation Act, such employees should be granted exemption from the new test for four years. The State Government accepted this suggestion and issued Ext. P-3 order on 6th October, 1965 providing for such exemption and clarifying that allotted officers would not be debarred from promotions during the period, for want of Account Test qualification. 4. The intention behind Ext. P-3 was that allotted employees like the petitioner should get time till 14th January, 1967 for passing the unified test, and that they should not be denied promotion during the period from 14th January, 1963 to 14th January, 1967, on the ground they had not passed the Account Test. As already seen, the petitioner had passed the Civil Judicial Test on 12th June, 1965. The vacancy in dispute had arisen on 15th July, 1965 i.e. during the period the exemption from Account test was supposed to be operative. It was on this basis that the vacancy was initially assigned to the petitioner. 5. During those days, this Court was also holding the view, both on the administrative and judicial sides, that judicial ministerial staff allotted from Madras were entitled to claim the 4-year exemption. The District Judge of Tellicherry had taken a different view, but that was reversed in a departmental appeal, as could be seen from Order No. C2-30995/66, dated 5th March, 1968 issued by the Registrar. This view was challenged on the judicial side and a point was taken in O.P. No. 1846/68 that executive orders like Exts. P-1 to P-3 were insufficient to displace the statutory requirements of the Madras Special Rules. Mathew, J. (as he then was) rejected the contention by holding that the tests prescribed by Exts. This view was challenged on the judicial side and a point was taken in O.P. No. 1846/68 that executive orders like Exts. P-1 to P-3 were insufficient to displace the statutory requirements of the Madras Special Rules. Mathew, J. (as he then was) rejected the contention by holding that the tests prescribed by Exts. P-1 to P-3 were "in substitution of the tests prescribed by R.22" of the Madras Judicial Ministerial Service Rules; and in W.A. No. 949/69, decided on 2nd September, 1971, a Division Bench approved this view. 6. Later, however, a Full Bench of this Court took a different view in O.P. 1872/74. The decision was rendered on 31st August, 1977 and was reported in Mohammed Kutty v. High Court ( 1977 KLT 799 ). The approach of the Full Bench was this. The Madras Special Rules continued to operate till they were replaced by the Special Rules for the Kerala Judicial Ministerial Subordinate Service, published on 7th October, 1975. Nothing short of an amendment to the Madras Rules, statutorily varying the mandate of R.22 thereof, could be recognised as effective till 1975. Exts. P-1 to P-3 were only executive instructions, and not rules made under Art.309 of the Constitution. Therefore, allotted employees of the Judicial Department could not enforce the 4 year exemption granted by Exts. P-1 to P-3. 7. The Full Bench had also taken note of a contention based on a notification issued by the State Government in exercise of power under S.2 of the Kerala Public Service Act, 1968. The notification was issued on 16th June, 1977, adding the following proviso to R.13 in Part II of the Kerala State and Subordinate Services Rules, with retrospective effect from 4th January, 1963. "Provided that in the case of the ministerial staff of the different departments/offices in the Kerala Ministerial Subordinate Service the unified tests prescribed in G.O. (P) No. 22/63/PD., dated the 14th January, 1963 as subsequently amended or clarified shall be applicable, until the Special Rules for the Kerala Ministerial Subordinate Service came into force." The argument before the Full Bench was that the notification was sufficient to give statutory force to Exts. P-1 to P-3. But the court held that it covered only the case of ministerial employees in other departments, and not of similar employees in the Judicial Department. P-1 to P-3. But the court held that it covered only the case of ministerial employees in other departments, and not of similar employees in the Judicial Department. Reliance was placed for this purpose on the phrase ology of entries 18 and 22 in Schedule II to the Classification, Control and Appeal Rules. In their Lordships opinion, the Madras Special Rules for Judicial Ministerial Staff stood unaffected and unamended by the notification dated 16 June, 1977 also. 8. Following the above decision, the Registrar of this Court issued a direction to the concerned District Judges, 13th February, 1978, to review all promotions made earlier on the assumption that the 4 year exemption was available to the judicial ministerial staff. It was this direction that led to the passing of Ext. P-10 order impugned herein. The direction as such is not challenged in the present petition, but its validity is also impugned in O. P. No. 1321/78 being separately disposed of. One point raised is that the Full Bench decision was no justification to unsettle settled seniority and other rights of employees who were not parties to O.P. 1872/74. Another point is that all other ministerial employees allotted to Kerala were getting the benefit of Exts. P-1 to P-3, atleast after the notification dated 16th June, 1977, and that denial of this benefit to the judicial ministerial staff alone had no rational basis or nexus with the needs of the office or the object sought to be attained. 9. Coming back to the case of the petitioner herein; the main point urged is that the defect noticed by the Full Bench in respect of the amendment made on 16th June, 1977 has since been cured by Ext. P-11 notification, dated 9th May, 1979, published in Kerala Gazette dated 5th June, 1979. 9. Coming back to the case of the petitioner herein; the main point urged is that the defect noticed by the Full Bench in respect of the amendment made on 16th June, 1977 has since been cured by Ext. P-11 notification, dated 9th May, 1979, published in Kerala Gazette dated 5th June, 1979. This notification is also issued under S.2 of the Public Services Act, and is designed to substitute the following proviso to R.13 of the K. S. S. R., retrospectively from 14th January, 1963:- "Provided that in the case of the ministerial staff of the different departments/offices in the Kerala Judicial Ministerial Subordinate Service and in the Kerala Ministerial Subordinate Service the unified tests prescribed in G. O. (P) No. 22/63/P.O., dated the 14th January, 1963, as subsequently amended or clarified shall be applicable, until the special Rules for the Kerala Judicial Ministerial Subordinate Service or the Kerala Ministerial Subordinate Service as the case may be, come into force". There is no doubt that unlike its predecessor of 1977, Ext. P-11 makes specific reference to judicial ministerial staff also. Prima facie, this amendment removes the basis of the Full Bench decision by providing statutory backing to Exts. P-1, to P-3, in their application to the judicial ministerial staff in the service of the Kerala State. But the scope of the amendment and its overall legal effect require more careful consideration. 10. It is indisputable that after 1st November, 1956, the State of Kerala was competent to prescribe service conditions for all employees in its services, whether allotted or not, subject of course to the condition laid down in the proviso to S.115(7) of the States Reorganisation Act. The K. S. S. R was made by the Governor of Kerala on 17th December, 1958, in exercise of power under Art.309 of the Constitution. Some time in 1962, the Kerala Government thought of introducing new tests; and on 23rd October, 1962, a new rule - R.13A - was introduced in Part II of the K.S. S. R., providing that when new tests are introduced, the employees would get "temporary exemption'' for a period of two years from passing such test. They would not be debarred from promotion during the said period; and Scheduled Castes and Scheduled Tribes would get two more years as exemption. They would not be debarred from promotion during the said period; and Scheduled Castes and Scheduled Tribes would get two more years as exemption. Apparently, the rule did not take into account new tests of higher standard which would create difficulties for allotted employees and would affect the protection available to them under the States Reorganisation Act. As could be seen from Ext. P-3, the Central Government had brought this aspect to the notice of the State Government by letter dated 3rd December, 1963 in the context of introducing one such new test (i.e. the unified test); and Ext. P-3 consequently provided for the 4 year exemption for allotted employees also. Statutory recognition to the principle was, however, given only later when R.13A was amended into its present form on 28th August, 1974, with retrospective effect from 16th March, 1966. But even this amendment, general in nature, was not apparently potent enough to displace the specific requirements of the Madras Special Rules applicable to employees allotted from that State. Further, as the amendment was effective only from 16th March, 1966, vacancies which had arisen earlier were outside its scope. 11. Turning now to Ext P-11, what it says is that the unified test introduced by Ext. P-1 "shall be applicable" to the judicial ministerial staff from 14th January, 1963. Exts. P-2 and P-3 are also taken in by the words "as subsequently amended or clarified"; and the result seems to be that the prescriptions of these executive orders are bodily lifted into the statutory scheme and made part of it. If that is so, the position is that the unified test and the 4 year exemption became applicable to the allotted judicial ministerial staff from 14th January, 1963 to 7th October, 1975, by force of law. No doubt, Ext. P-11 does not recite that the Madras Special Rules would stand amended accordingly, in its application to the employees concerned; but that seems to be the legal effect. It is settled law that in exercise of power under S.2 of the Public Services Act, the Kerala Government could retrospectively amend rules made under Art.309 of the Constitution, with retrospectivity extending up to the commencement of the rules themselves. It is settled law that in exercise of power under S.2 of the Public Services Act, the Kerala Government could retrospectively amend rules made under Art.309 of the Constitution, with retrospectivity extending up to the commencement of the rules themselves. The Madras Special Rules were promulgated by the Madras Governor, under Art.309, in the year 1953; and when the Governor of Kerala ordains, in exercise of power under S.2 of the Public Services Act, that the 'unified test' would take the place of the test prescribed by the Madras Rules, in its application to the allotted judicial ministerial staff from 1963, its legal affect is to amend the Madras Special Rules to that extent. The "substitution" thought of by Mathew, J. in O.P. 1846/68 thus becomes statutorily or legally enforceable, along with the 4 year exemption contained in Ext. P-3. 12. It is true that the same result could have been achieved in a less clumsy and more explicit manner, but that does not detract from the position that what was attempted by Ext. P-11 was an alteration of law regarding the requirements of test qualification, as laid down in R.22 of the Madras Special Rules, for the period between 14th January, 1963 and 7th October, 1975. You have to look at the substance of what is attempted by the rule-making authority and its competence to do it, and not the method chosen for doing it. When the Kerala legislature attempted to validate the levy of tax on passengers and goods by the device of amending the Motor Vehicles Act, a Division Bench of this Court said, in Mayilvahanam Motors v. State of Kerala ( 1972 KLT 564 ), that the real question could only be one of competence, and not of the method adopted. A provision for amending the Transfer of Property Act can be made, for example, in the Cattle Trespass Act, so long as legislative competence is there. The newly added proviso to R.13 is within the competence of the rule-making authority, and if its intention and real effect is to alter the prescriptions of the Madras Special Rules, I for one can see no reason to ignore that result. The unified test should therefore be deemed to be "the test prescribed by Special Rules" for the purposes of R.13(a) and 13A(i)(b) of the Kerala Subordinate Service Rules also: 13. The unified test should therefore be deemed to be "the test prescribed by Special Rules" for the purposes of R.13(a) and 13A(i)(b) of the Kerala Subordinate Service Rules also: 13. It is argued that on the language of Ext. P-11, all that has been done is to make Ext. P-1 test (i.e., the unified test) applicable to the employees concerned, and that the further rule in Ext. P-3 relating to the 4 year exemption is not incorporated into the Madras Rules. The words "as subsequently amended or clarified" qualify only the test as such, and not anything else, it is suggested. R.13A as it now stands could have provided a direct answer, but for the circumstance that it was operative only from 16th March, 1966, and was not available on 15th July, 1965 when the vacancy in dispute had occurred. But examining Ext. P-11 in the background of the approach made in Mohammed Kutty's case ( 1977 KLT 799 ) in relation to the proviso originally introduced on 16th June, 1977, and in the light of the history behind the various improvisations, it is not difficult to see that what the rule-making authority intended to do was to place the judicial ministerial staff on the same footing as other ministerial staff. The benefit of Exts. P-1 to P-3 were secured to all other allotted ministerial staff from 14th January, 1963, and only a small number of clerks working in courts were being differently treated. The new proviso was obviously intended to remedy this mischief. In Sutherland Publishing Co. v. Caxton Publishing Co. (1938 (1) Ch. 174) Mac Kinnon, L.J., said: "When the purpose of an enactment is clear, it is often legitimate, because it is necessary, to put a strained interpretation upon some words which have been inadvertently used, and of which the plain meaning would defeat the obvious intention of the legislature. It may even be necessary, and therefore legitimate, to substitute for an inept word or words that which such intention requires". In Henry v. Taylor (1954 (1) QB 513) Lord Denning observed: "Where there is a fair choice between a literal interpretation and a reasonable interpretation one should always choose the reasonable interpretation". It may even be necessary, and therefore legitimate, to substitute for an inept word or words that which such intention requires". In Henry v. Taylor (1954 (1) QB 513) Lord Denning observed: "Where there is a fair choice between a literal interpretation and a reasonable interpretation one should always choose the reasonable interpretation". And in Magor R. D. C. v. Newport Corporation (1950 (2) AER 1226) the same Lord Justice said: "This was so obviously the intention of the Minister's Order that I have no patience with an ultra-legalistic interpretation which would deprive them of their rights altogether. I repeat what I said in Seaford Count Estates Ltd. v. Asher 1949 (2) KB 481. We do not sit here to pick the language of Parliament and of Ministers to pieces and make nonsense of it. That is an easy thing to do, and a thing to which lawyers are often prone. We sit here to find out the intention of Parliament and of Ministers and carry it out, and we do this better by filling in the gaps and making sense of the enactment than by opening it up to destructive analysis". The House of Lords in England has not approved of the above approach, but our Supreme Court has, through Beg, C. J. and Krishna Iyer, J. in Bangalore Water Supply v. A. Rajappa ( AIR 1978 SC 548 ). Therefore, "the purpose of the enactment", "the obvious intention", cannot be defeated if there is a fair choice, and if the attempt is not to pick the language of the rule-making authority to pieces. I think it bears repetition to suggest that the purpose of the new proviso and its obvious intention is to make available to the allotted judicial ministerial officers the same consideration that has been shown to all other allotted ministerial officers; and I propose to give effect to it. 14. Counsel for the third respondent contends that the effect of the new proviso has to be tested in the light of the proviso to S.115(7) of the States Reorganisation Act, before it can be enforced. It is said that under the Madras Rules, persons like the 3rd respondent had a right to supersede unqualified seniors in the matter of promotions, and this service condition is attempted to be varied to their disadvantage, under the new dispensation. It is said that under the Madras Rules, persons like the 3rd respondent had a right to supersede unqualified seniors in the matter of promotions, and this service condition is attempted to be varied to their disadvantage, under the new dispensation. The 3rd respondent had actually been promoted and assigned a rank in the U. D. cadre, by applying the Madras Rules as interpreted by this Court, and what the new rule attempts, it is complained, is not only to deprive him of a mere chance of promotion, but of promotion actually given. Counsel puts the matter in another form by saying that his client had a right not to be ranked below an unqualified senior in the U.D. cadre. The proviso to S.115(7) confers no absolute or unqualified rights on allotted employees; all it says is that the previous approval of the Central Government is necessary for varying their service conditions. Ext. P-3 clearly discloses that such previous approval was obtained for introducing the unified test and for granting the 4 year exemption. It was the Central Government that had suggested to the State Government that the allotted personnel should not be "debarred" from promotions during the said period. The States Reorganisation Act does not lay down that the previous approval of the Central Government is to be obtained in any particular form or manner; nor does it say that the approval, when obtained, has to be given effect to in any such manner. If an executive order is sufficient to vary the service conditions of allotted employees on the basis of the approval, that can be done; and where a law is required, that has to be made. In whatever way you look at it, there is no escape from the conclusion that the service conditions of persons like the 3rd respondent are being varied in this case "with the previous approval of the Central Government". 15. Another contention of the respondents is based on R.35(f) of the K. S. S. R., noticed in paragraphs (14) and (15) of Mohammed Kutty's case ( 1977 KLT 799 ). The full Bench felt that the contention was apparently "sound", but their Lordships did not think it necessary to base their conclusion on it. 15. Another contention of the respondents is based on R.35(f) of the K. S. S. R., noticed in paragraphs (14) and (15) of Mohammed Kutty's case ( 1977 KLT 799 ). The full Bench felt that the contention was apparently "sound", but their Lordships did not think it necessary to base their conclusion on it. The contention, if I understand it correctly, is that the above sub-rule contains a statutory declaration that the Madras Account Test is equivalent to the Kerala Account Test, and that therefore the "unified test" introduced by Ext. P-1 could not be treated as a test of higher standard, for the purpose of recognising the four-year exemption envisaged in R.13A(3). It appears to me, however, that what R.35(f) does is only to provide that a pass in the Madras Account Test could be treated as "sufficient qualification in lieu of" a pass in the Kerala Account Test. The sub-rule is part of a saving provision, prescribing an alternate qualification; and if a pass in one test is treated as sufficient qualification where another test is also there, it is not possible to say that the two tests are equal in all respects. What is equated, if there is an equation at all, is a pass in the test and not the test itself. That apart, R.35(f) was introduced on 29th October, 1962, while the "unified test" was thought of for the first time only in Ext. P-1, dated 14th January, 1963, and the syllabus itself was prescribed only by Ext. P-2, dated 23rd October, 1963. It is inconceivable that while framing R.35(f) in October, 1962 the rule-making authority was thinking in terms of a test which was to take shape a year later. 16. The last contention is to the effect that the 'unified test' is in fact not a test of a higher standard. The question whether the new test was something different from the old one, capable of affecting service conditions of allotted employees, was considered both by the Central and State Governments before issuing Ext. P-3, and both were of the view that it was more tough. It is not for this Court to evaluate the syllabi and the components of the two, and sit in Judgment over the conclusions of the two Governments. Nor has any material been furnished for attempting such an exercise. 17. P-3, and both were of the view that it was more tough. It is not for this Court to evaluate the syllabi and the components of the two, and sit in Judgment over the conclusions of the two Governments. Nor has any material been furnished for attempting such an exercise. 17. Assuming for a moment that the Full Bench has held otherwise, and that it is not open for me to ventilate my own views on the above question, I should still think that when Ext. P-3 says that the allotted employees would get time till 14th January, 1967 to pass the unified test, and when that provision has been made statutory by the recent amendment, the question whether one test is of a higher standard than the other, does not really arise. The mandate of the new provision is to regard allotted employees as exempt from the unified test till 14th January, 1967, and this should prevail over any earlier expression of judicial opinion on the comparative merits of the two tests. 18. It has therefore to be held that Ext. P-10 order, based on the Full Bench decision, cannot survive the introduction of the new proviso to R.13 in 1979. Ext. P-10 is accordingly quashed, and it is declared that the petitioner will be entitled to the rank assigned to him in Ext. P-5. O.P. allowed as above. No costs.