Jaifunnissa Begum v. A. Sarojini — 1989 DIGILAW 21 (KER)

JUDGMENT V.S. Malimath, C.J. 1. These two appeals are against the judgment of the learned Single Judge allowing writ petition No. 1843/86. For the sake of convenience we shall refer to the rankings of the " parties as assigned in W. A. No. 340/87. Respondents 1 to 5 offered themselves for appointment to the posts of Lady Village Extension Officers in pursuance of the notification issued by the Public Service Commission inviting applications. Respondents 1 to 5 were selected by the Public Service Commission and they were assigned rank Nos. 1,15, 126, 73 and 67 respectively. Ext. P-2 contains the special rules for the Kerala General Subordinate Service Posts in the Community Development Department made by the Governor under the proviso to Art.309 of the Constitution, prescribing qualifications, mode of appointment, training and seniority. The posts of Gramasevikas Grade II adverted to in these rules pertain to Lady Village Extension Officers, Gramasevkas Grade II having been subsequently re-designated as Lady Village Extension Officers. The appointment to those posts was by direct recruitment. R.8 of the said rules requires that a person selected by the P. S. C. for appointment should undergo training in one of the Gramasevak Training Centres before appointment to those posts. It is in accordance with the said provision that respondents 1 to 5 were sent up for training in one of the recognised institutions. At the end of the training, an examination was conducted and it is on the basis of the ranking obtained by the trainees in the final examination that rankings were assigned to them for determination of their relative seniority, as required by R.8. On the basis of the result of the final examination respondents1 to 5 were assigned rank Nos. 13, 19, 1, 3 and 4 respectively. It is on that basis that ranks were assigned to respondents 1 to 5 in the provisional seniority list dated 11th November 1981 as also in the final seniority list dated 26th September. 1985, produced as Ext. R-3(b) and it is on the basis of the rankings given in those lists that respondents 3 to 5 were promoted as Junior Lecturers by Ext. P-1, dated 13th February 1986. Respondents 1 and 2 having secured places below respondents 3 to 5, their cases were not considered for promotion when respondents 3 to 5 were promoted. R-3(b) and it is on the basis of the rankings given in those lists that respondents 3 to 5 were promoted as Junior Lecturers by Ext. P-1, dated 13th February 1986. Respondents 1 and 2 having secured places below respondents 3 to 5, their cases were not considered for promotion when respondents 3 to 5 were promoted. It is in this background that respondents 1 and 2, approached this court in O. P. No. 1843/86 complaining that the appellants have acted in contravention of Art.14 and 16 of the Constitution, in denying them their legitimate right to be considered for promotion to the cadre of Junior Lecturers, when the cases of respondents 3 to 5 were considered. They came forward with a case that the seniority of respondents 1 to 5 stands determined with reference to the rankings assigned by the P. S. C. after their selection and not by the rankings assigned to them after the completion of the training and in accordance with the results of the examination held at the end of the training. The Learned Single Judge upholding this contention allowed the writ petition and quashed Ext. P-1, the order of provisional promotion given to respondents 3 to 5, on the ground that the appellants were not entitled to overlook the seniority of respondents 1 and 2. It is the said judgment that is challenged in these two appeals. 2. Respondents 1 to 5 were all selected by the Public Service Commission in accordance with the rules Ext. P-2, dated 8th September 1967. R.8 of the said rules which provides for training of candidates selected by the P. S. C. and in regard to determination of seniority of the candidates at the end of the training reads as follows: "8. Training.-Every person selected for appointment as Mukhyasevika or Gramsevak or Gramsevika shall undergo training in one of the Gramsevak Training Centres in the State before appointment to the posts. The training of a candidate will be terminated in the event of his/her conduct being found unsatisfactory or in case he/she is found to be inefficient during the period of training. The candidates will be appointed to the posts only in case they satisfactorily complete the training course. The training of a candidate will be terminated in the event of his/her conduct being found unsatisfactory or in case he/she is found to be inefficient during the period of training. The candidates will be appointed to the posts only in case they satisfactorily complete the training course. The seniority of the person appointed to the posts will be fixed on the basis of the ranks obtained by them in the final examination conducted at the Training Centres on completion of the training course. The period of training shall not count for probation and increment." We find from R.8 that it provides for three matters: (1) that the candidates selected by the P. S. C. should be sent for training for the stipulated period before their appointment to the posts, (2) that at the end of the training, an examination should be conducted and ranks assigned to the candidates on the basis of their performance at the said examination and (3) that "the seniority of the persons appointed after successful training shall be fixed on the basis of their ranks obtained by them at the final examination conducted on the completion of the training. We have considered it unnecessary to advert to other matters to which R.8 pertains. There cannot be any doubt from a bare reading of R.8 that a special provision has been engrafted therein in the matter of determining seniority of persons selected by the P. S. G. and appointed after training prescribed by the rules. The rule regarding determination of seniority on appointment after training requires the ranks assigned to the candidates at the final examination to be taken into consideration. The ranks the candidates obtained when they were selected by the P. S. C. is not at all relevant. Thus we find that a special provision has been made regarding seniority of those appointed under the special rules. The ranks the candidates obtained when they were selected by the P. S. C. is not at all relevant. Thus we find that a special provision has been made regarding seniority of those appointed under the special rules. This special provision regarding determination of seniority is admittedly not consistent with the general rule regarding seniority contained in R.27(c) of Part II of the K. S. and S. S. R. which provides that the seniority of persons directly recruited shall be determined by the date of first effective advice made for his appointment' by the P. S. C. R.2 of Part II of the K. S. and S. S, R. provides that 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 II, the latter shall in respect of that service, prevail over the provision in the general rules in this part. Therefore if there is inconsistency between the rule regarding seniority incorporated in R.27(c) of Part II of the K. S, and S. S. R. and R.8 of the special rules with which we are concerned in this case, it is the special rule that prevails. Therefore the question of determining the seniority of respondents 1 to 5 on the basis of R.27(c) of Part II of the K. S. and S. S. R. does not arise in this case, as there is a specific rule, R.8, determining their seniority. It is not disputed that respondents 1 and 2 are juniors to respondents 3 to 5 on the basis of the rankings assigned to them at the end of the final examination conducted on completion of the training course. But the learned Single Judge has taken the view that the subsequent amendment to the special rules made by notification Ext. P-4, dated 30th June 19 7 governs the seniority of respondents 1 to 5. By notification Ext. P-4, dated 30th June, 1977 R.8 of the special rules has been substituted by the following rule: "8. Training.-Every person selected for appointment as Village Extension Officer or Lady Village Extension Officer shall undergo training in one of the Extension Training Centres in the State before appointment to the posts. By notification Ext. P-4, dated 30th June, 1977 R.8 of the special rules has been substituted by the following rule: "8. Training.-Every person selected for appointment as Village Extension Officer or Lady Village Extension Officer shall undergo training in one of the Extension Training Centres in the State before appointment to the posts. The training of a candidate will be terminated in the event of his/her conduct being found unsatisfactory or in case he/she is found to be inefficient during the period of training. The candidates will be appointed to the posts only in the case they satisfactorily complete the training course. The rank and seniority of candidates selected for the posts of Village Extension Officers and Lady Village Extension Officers will be decided according to the order in which their names appear in the advice list given by the Public Service Commission. But in the case of those who fail to secure a pass after completion of the training in the first chance, their rank and seniority will be revised on the basis of the chances and marks they obtain the subsequent chances. The period of training shall not count for probation." The newly substituted rule which came into force on 30th June 1977 prescribes a rule regarding determination of seniority different from the one prescribed under the old R.8. The new rule requires determination of seniority not on the basis of the performance at the examination held at the end of the training but on the basis of the ranks assigned by the P.S.C. when the candidates are advised. An attempt has been made by the new rule, to bring it substantially in tune with R.27(c) of Part II of the K.S. and S.S.R. There cannot therefore be any doubt that after the amendment of the rules, seniority has to be determined on the basis of the ranks assigned by the P.S.C. at the time of advice. But it has to be pointed out that the amendment to R.8 has not been given retrospective effect. It governs only the selection and appointment made after the said rule came into force on 30th June 1977. The same cannot govern determination of seniority of those selected and appointed in accordance with the rules before they were amended. But it has to be pointed out that the amendment to R.8 has not been given retrospective effect. It governs only the selection and appointment made after the said rule came into force on 30th June 1977. The same cannot govern determination of seniority of those selected and appointed in accordance with the rules before they were amended. But the learned Single Judge has taken the view that this is a case of a correction of a mistake by the rule making authority and that therefore R.8, as now amended, must be regarded as regulating the seniority of candidates appointed even before the amendment came into force. Two reasons have been assigned by the learned Single Judge for this conclusion. The first reason is that a mistake was committed by the rule making authority because it prescribed a different mode for determination of seniority than the one prescribed by R.27(c)of Part II of the K.S. and S.S.R. The second reason is that the explanatory note to the amended rule evidences the intention of the rule making authority that the seniority should be determined in accordance with the principle contained in new R.8. With respect, it is not possible to agree with either of the reasons given by the 'learned Single Judge. It is not possible to agree that when a different rule regarding determination of seniority is made, which is inconsistent with the general rule regarding determination contained in R.27(c) of Part II of the K.S. and S.S.R., we must draw the inference that the rule making authority has committed a mistake. Special rules are often made with the specific object or purpose of making provisions inconsistent or at variance with those contained in the general rules. That is really one of the principal purposes of making special rules. R.27(c) of Part II of the K.S. and S.S.R. expressly provides that if any provision in the general rules contained in the part is repugnant to a provision in the special rules, the latter shall prevail over the provisions in the general rules contained in Part II. Therefore it is clear that the general rules themselves contemplate the promulgation of rules inconsistent with the general rules and further provide that in such an event it is the special rule that should prevail over the general rule. Therefore it is clear that the general rules themselves contemplate the promulgation of rules inconsistent with the general rules and further provide that in such an event it is the special rule that should prevail over the general rule. Hence it is impossible to agree with the view that the unamended rule which incorporates a principle different from that contained in the general rule in regard to determination of seniority must be regarded as one made under a mistake. So far as the explanatory note is concerned, it may more conveniently be extracted as follows: "According to the existing provision in the special rules, the seniority of the persons appointed as Gramasevikas and Gramasevakas will be fixed on the basis of the ranks obtained by them in the final examination conducted at the extension training centre on completion of the pre service training. This being the position, the ranks assigned by the Public Service Commission are subjected to change at me time of actual appointment after training. This is not in conformity with the provisions in General R.27(c) of the Kerala State and Subordinate Service Rules. The Public Service Commission has therefore advised that the relevant provision in the special rules may be amended. Hence this amendment." It is clear from this explanatory note that the rule making authority also recognises the fact that under the unamended R.8, a provision regarding determination of seniority has been made which is inconsistent with the general R.27(c) of Part II of the K.S. and S.S.R. The explanatory note does not say that any mistake had been committed when R.8 was firstly framed. The reason for the amendment obviously is the recommendation of the Public Service Commission to bring R.8 in consonance with R.27(c). The P.S.C. has obviously taken the view that the ranks assigned at the time of selection should not be altered at the end of the training of the candidates. This view of the P.S.C. weighed with the rule making authority which acceded to the request and amended the rule to bring R.8 substantially in consonance with R.27(c) of Part II of the K.S. and S.S.R. This is not a case of correction of a mistake but a case of consciously adopting a different principle governing seniority. As already stated, the amended rule does not have any retrospective effect. As already stated, the amended rule does not have any retrospective effect. Hence determination of seniority in accordance with the amended R.8 has to be made only in respect of those candidates who are appointed after the amended R.8 came into force. The seniority of respondents 1 to 5 before R.8 was amended is not intended to be altered by the amendment. Hence respondents 1 and 2 have to be regarded as juniors to respondents 3 to 5 in the cadre of Lady Village Extension Officers/Gramasevikas Grade II. We have therefore no hesitation in taking the view that the promotion of respondents 3 to 5 was right and does not call for interference. For the reasons stated above both these appeals are allowed, the judgment of the learned Single Judge is set aside and O.P. No. 1843/86 is dismissed. No costs.