JUDGMENT Sankarasubban, J. 1. Since in all these cases, a common question has been raised for our consideration, they are being disposed of together by this Judgment. The question centres round the qualification to be possessed by the Inspectors in the Department of Weights and Measures and also the consequences of appointing persons to that post who did not possess that qualification. 2. The Kerala Weights and Measures (Enforcement) Act, 1958 provided for the appointment of Inspectors. Under S.15 of the Act, the Inspectors were to perform their functions under the general superintendence and control of the Controller. S.16 of the Act empowers every Inspector to verify every weight or measure or weighing or measuring instrument which is brought to him for the purpose of verification and to stamp the same with a stamp of verification. Under S.17, the Inspector was given the power to inspect and find out whether the weights and measures used were in accordance with the provisions of the Act. S.43 enables the Government to frame Rules and under S.43(h), the rule making power was given to the Government for prescribing the qualifications, functions and duties generally of Inspectors under the Act. In accordance with the Kerala Weights and Measures (Enforcement) Act, 1958, the Kerala Weights and Measures (Enforcement) Rules, 1964 were published. The qualifications to be possessed by the Inspectors were prescribed under R.22 of the Enforcement Rules. Under this Rule, the Inspector is required to be a graduate of a recognised University preferably in Science or Engineering or who holds recognised Diploma in Engineering. He should be able to speak, read and write one of the regional languages of the State and on selection he has to satisfactorily complete a course of training for not less than six weeks in the enforcement of Weights and Measures as approved by the Government and also a basic training course at the Indian Institute of. Legal Metrology at Ranchi. 3. In exercise of the powers under the proviso to Art.309 of the Constitution of India, the Governor of Kerala made the Kerala Weights and Measures Subordinate Services Special Rules. One of the categories in the Subordinate Services was Divisional Inspectors of Weights and Measures Department. R.2 of the Rules prescribes the method of appointment and qualification for appointment. 3. In exercise of the powers under the proviso to Art.309 of the Constitution of India, the Governor of Kerala made the Kerala Weights and Measures Subordinate Services Special Rules. One of the categories in the Subordinate Services was Divisional Inspectors of Weights and Measures Department. R.2 of the Rules prescribes the method of appointment and qualification for appointment. As per the requirement of the Rule, 60 per cent of the vacancies are to be filled up by direct recruitment and 40 per cent by transfer and Graduation was prescribed as the qualification for both, but according to the note appended there, the Upper Division Clerks of Weights and Measures Department were exempted from the graduate qualification. On the basis of the Special Rules, some of the non graduates working in the Weights and Measures Department were transferred and appointed as Inspectors, even though they were not graduates. After being appointed as Inspectors they underwent the training course as required under the Enforcement Rules and they were also promoted to the higher categories of Assistant Controller, etc. 4. While things were such, the Kerala Weights and Measures Subordinate Service Rules, 1978 came into existence in supersession of the Kerala Weights and Measures Subordinate Service Rules, 1967. By these Rules, 50 per cent of the vacancies in the post of Divisional Inspector was to be filled up by direct recruitment and 50 per cent by promotion or transfer. The Rules did not contain any note regarding the relaxation of qualifications for Upper Division Clerks working in the Weights and Measures Department. However, a doubt arose whether the promotees and transferees have to acquire graduate qualification, even after coming into force of the 1978 Rules. The Upper Division Clerks in the Weights and Measures Department were promoted in spite of their lack of qualification as graduate. Subsequently, the Central Government enacted an Enforcement Act called 'The Standards of Weights and Measures (Enforcement) Act, 1985'. S.72 of the above Act enabled the State Government to prescribe Rules for any matters which were required to be prescribed. In exercise of this power, Government of Kerala brought into force the Standards of Weights and Measures (Enforcement) Rules, 1992. R.20 prescribed the qualifications of Inspectors. It prescribed that the person should be a graduate of a recognised University in Science, Technology or Engineering or hold a recognised Diploma in Engineering. In exercise of this power, Government of Kerala brought into force the Standards of Weights and Measures (Enforcement) Rules, 1992. R.20 prescribed the qualifications of Inspectors. It prescribed that the person should be a graduate of a recognised University in Science, Technology or Engineering or hold a recognised Diploma in Engineering. Rule 20 (2) exempted those persons who have been working as Inspectors or who were working as Technical Assistants/U. D. Clerks in the Weights and Measures Department before the commencement of these Rules. Sub-r.(3) of R.20 however prescribed that the person appointed to the post of Inspector had to complete the basic training course at the Indian Institute of Legal Metrology. 5. It can be seen that from 1970 onwards, the Government have been appointing U. D. Clerks in the Department of Weights and Measures as Inspectors, even though they did not possess the qualification of being a graduate. While so, on 2nd September, 1986, Government issued a notification stating that in future U. D. Clerks of Weights and Measures Department who are having basic qualification of graduation alone need be promoted and appointed as Inspectors (W and M) in accordance with the ratio as laid down in the Special Rules. The above notification was challenged before this court and the matter ultimately reached before the Division Bench in W. A. No. 826/86. W. A. No. 826/86 was dismissed and the decision is reported in Mohanan v. State of Kerala ( 1989 (1) KLT 161 ). Division Bench held that even under the 1978 Rules, graduation is a necessary qualification for being appointed as Inspectors. It further held that the Special Rules cannot lay down a different qualification than what was laid down by the Standards of Weights and Measures (Enforcement) Rules, 1964. The Standards of Weights and Measures (Enforcement) Rules, 1964 was declared to be a special law by the Division bench and hence according to the Division Bench the State Government cannot prescribe a different qualification for being appointed as Inspectors which is less than what is prescribed by the Standards of Weights and Measures (Enforcement) Rules. 6. The question posed in all these cases is whether the decision reported in Mohanan v. State of Kerala (1939 (1) KLT 161) requires reconsideration and whether the promotions given to those persons, who did not have the required qualifications are to be reviewed. 7. 6. The question posed in all these cases is whether the decision reported in Mohanan v. State of Kerala (1939 (1) KLT 161) requires reconsideration and whether the promotions given to those persons, who did not have the required qualifications are to be reviewed. 7. Before dealing with the above two points, we shall narrate the facts of the case, W.A. Nos. 192, 1.96 and 454/91 arise from the same judgment in O. P. No. 1193/87. O. P. No. 1193/87 was filed by one E. V. P. Abdu Rahimankutty. He was directly appointed as Inspector of Weights and Measures as a result of the advise of the Kerala Public Service Commission from 12th June 1979. He was promoted to the category of Senior Inspector with effect from 2nd June 1986. In the Original Petition, he has alleged that in violation of rule 2 of the Special Rules, unqualified hands including those whose applications were rejected by the Public Service Commission, were appointed as Divisional Inspectors on temporary basis. The names of such persons were mentioned in paragraph 5 of the Original Petition. When the petitioner came to know that unqualified hands who were not entitled to continue as Divisional Inspectors, were being promoted and allowed to continue in the post on the basis of their provisional seniority, he submitted a representation before the State of Kerala on 30th September 1983. In that representation, he had requested to reexamine the whole matter and draw up a gradation list assigning his due and legitimate rank in the post of Inspector of Weights and Measures and give him promotion to the post of Assistant Controller. The Petitioner sent another representation on 2nd December 1983 which is produced as Ext. P-4. First respondent published a gradation list of Divisional Inspectors of Weights and Measures as on 1st January 1978. This was published in the official gazette on 31st December 1985. Petitioner further points out that one T. Ali Ahammed who was provisionally promoted and then reverted on 20th June 1979 was being given rank above him. In the Original Petition, petitioner prayed for a writ of mandamus or any other appropriate writ, direction or order directing the first respondent to draw up a fresh gradation list in Weights and Measures Department with regard to the Inspectors after giving due and legitimate rank to all persons recruited as per the Special Rules. In the Original Petition, petitioner prayed for a writ of mandamus or any other appropriate writ, direction or order directing the first respondent to draw up a fresh gradation list in Weights and Measures Department with regard to the Inspectors after giving due and legitimate rank to all persons recruited as per the Special Rules. Petitioner had prayed for quashing Exts. P-6 and P-8, Ext. P-6 being the rank list of Divisional Inspectors as on 1st January 1978 and Ext. P-8 being the reply given to the petitioner with regard to. Sri AH Ahammed. 8. The Government filed a detailed counter affidavit in this case. Special reference is made to the Enforcement Rules, 1964 as well as the Weights and Measures Subordinate Services Rules, 1967. In accordance with 1.967 Rules, U. D. Clerks in the Department of Weights and Measures were entitled to be appointed as Inspectors even though they were not graduates. According to them, the same was the case in 1978 Rules also. But subsequently they realised that graduation was a necessary qualification and that is why they issued the notification in 1986 that hereafter only graduates will be promoted as Inspectors. It was further submitted that on the basis of the promotions given to the promotees they had been promoted to higher posts also. The allegations in the Original Petition that the Public Service Commission did not approve their appointments was firmly denied. With regard to the allegation against the fourth respondent, it was stated that the fourth respondent was promoted in a regular vacancy and hence he was not reverted. 9. The learned Single Judge heard the matter and delivered Judgment on 14th November 1990. The learned Single Judge took the view that according to Mohanan's Case(1939 (1) KLT 161) graduation is a necessary qualification for being appointed as Inspector and any appointment made contrary to this, is illegal. The learned Single Judge further directed the first respondent to consider the matter of promotions to the post of Divisional Inspectors in the light of the said decision reported in Mohanan v. State of Kerala ( 1989 (1) KLT 161 ) and pass appropriate orders fixing the rank and seniority of the petitioner and giving him such promotion or other benefit to which he is entitled in the light of such reconsideration. A direction was also given to give an opportunity to all persons who may be affected by the said reconsideration before passing orders. 10. W. A. No. 193/91 arises from the Judgment in O. P. No. 10918/85. Petitioner in the Original Petition was one Ramachandran Nair. He was an U. D. Clerk, who was a graduate. He was promoted as Inspector on 19th January 1973. According to him, respondents 3 to 7, even though they were seniors to him, did not possess the qualification of being a graduate. But they were promoted before the petitioner was promoted. According to him, they ought not have been promoted at the time when they were promoted. He also prayed for refixation of the seniority. The learned Single Judge quashed Ext. P-6 seniority list and directed the State Government to reconsider the matter and finalise the seniority list of Divisional Inspectors in accordance with the decision in Mohanan's Case ( 1989 (1) KLT 161 ). 11. Subsequent to the filing of the above Writ Appeals the Division Bench passed an interim order in W. A. No. 192/91 on 18th January 1996. This Court directed the Government to prepare a seniority list of officers in compliance with the Judgment in Mohanan's Case( 1989 (1) KLT 161 ) within two months and produce the same before the Court. On the basis of the direction of the Division Bench, a fresh seniority list of officers was prepared. It is at that juncture, O. P. No. 9212/96 and O. P. No. 5859/96 were filed to follow the existing seniority list of officers as on 1st January 1989 and to declare that decision reported in Mohanan's Case ( 1989 (1) KLT 161 ) has to be reconsidered. W. A. No. 248/97 is filed against the Judgment in O.P. No. 15987/96. The complaint in that case was that the provisional seniority list, Ext. P-1, was not in accordance with Mohanan's Case ( 1989 (1) KLT 161 ) Hence, there was a direction by the learned Single Judge to prepare a seniority list in accordance with Mohanan's Case ( 1989 (1) KLT 161 ) by weeding out unqualified persons. 12. Smt. V. P. Seemanthini appearing for some of the appellants, strongly contended for reconsideration of the decision in Mohanan's Case ( 1989 (1) KLT 161 ). 12. Smt. V. P. Seemanthini appearing for some of the appellants, strongly contended for reconsideration of the decision in Mohanan's Case ( 1989 (1) KLT 161 ). According to her, the Subordinate Service Rules which are issued under the proviso to Article 309 of the Constitution, have to be given preference when there is a conflict between the Subordinate Service Rules and the Weights and Measures (Enforcement) Rules. She attempted to contend that the Weights and Measures Act and Rules are only general law, while the Rules made under the proviso to Art.309 of the Constitution are Special Law. The general law should yield to the special law and hence according to her, the qualifications under the Subordinate Service Rules have to be given preference. The Full Bench decision of this Court in Director of Postal Services v. K. R. B. Kaimal ( 1984 KLT 151 ) was cited in support of her contention. 13. After going through the decisions in Mohanan v. State of Kerala ( 1989 (1) KLT 161 ) and Director of Postal Services v. K.R.B. Kaimal ( 1984 KLT 151 ) we don't think that the decision in Mohanan's Case ( 1989 (1) KLT 161 ) should be reconsidered. We agreed with the reasoning of the Division Bench in Mohanan's Case( 1989 (1) KLT 161 ) that the Weights and Measures (Enforcement) Rules are special law. Those Rules fix the qualifications of Inspectors. Those qualifications have to be followed when Special Rules are framed under the proviso to Article 309 of the Constitution. The power conferred by sub-s.(1) of S.2 of the Kerala Public Services Act, 1968 is a general power for making rules regulating recruitment and conditions of service of persons appointed to various public services in connection with the affairs of the State of Kerala. But so far as the Kerala Weights and Measures (Enforcement) Rules, 1964 are concerned, they are framed under S.43(2)(b) of the Kerala Weights and Measures (Enforcement) Act which empowers the Government to frame Rules prescribing qualifications, functions and duties generally of Inspectors under the Act. The power of prescribing qualifications in respect of the posts of Inspectors conferred by the Kerala Weights and Measures (Enforcement) Act is a special power, whereas the power conferred by sub-s.(1) of S.2 of the Kerala Public Services Act is a general power. The power of prescribing qualifications in respect of the posts of Inspectors conferred by the Kerala Weights and Measures (Enforcement) Act is a special power, whereas the power conferred by sub-s.(1) of S.2 of the Kerala Public Services Act is a general power. The Full Bench decision reported in Director of Postal Services v. K. R. B. Kaimal ( 1984 KLT 151 ) cannot be of any help to the appellant. There, the termination of temporary service in the P and T Department was in question. The contention was that the petitioner was a workman under the Industrial Disputes Act and hence the service of the petitioner ought to have been terminated in accordance with the provisions of the Industrial Disputes Act. The Central Government had framed Central Civil Services (Temporary Service) Rules, which prescribed a different method of termination. The question arose as to which was the general rule and special rule. Dealing with this contention, Bhaskaran Nambiar, J. speaking for the Full Bench observed thus: "It is no longer in dispute that the Government servants unlike their counterparts in industrial establishments are not mere contractual employees, but have acquired a status protected by statutes and guaranteed by the constitutional safeguards under Art.310 of the constitution. The service of the temporary Government servants in the P and T Department can be terminated by a mere one month's notice in writing from either side and the Government servant is entitled to claim pay and allowance for this notice period. This is independent of the Industrial Disputes Act and stands in a different and distinct category altogether. It has legislative competence and constitutional support. The court cannot thus ignore the rules; nor efface them from the statute book simply because there is the Industrial Disputes Act ......... It can thus be safely ruled that the special rules under Art.309 in respect of the temporary employees in the P and T Department exclude the provisions in Chap.5A of the Industrial Disputes Act". Hence we find that the Special Rules were given preference because the Industrial Disputes Act was a general Act and the Government servants were special category of people who were protected by the Rules provided under Article 309 of the Constitution. The position in our case is different. Hence we find that the Special Rules were given preference because the Industrial Disputes Act was a general Act and the Government servants were special category of people who were protected by the Rules provided under Article 309 of the Constitution. The position in our case is different. The Government itself prescribed the qualifications for Inspectors under the Weights and Measures Department and when it framed the Rules under Art.309 of the Constitution, it exempted possession of the same with regard to a particular category of people. This cannot be done because the Enforcement Rules are special laws so far as the duties and qualifications of the Inspectors are concerned. 14. Recently, the Division Bench in W.A. No. 1534/96 had the occasion to consider the same question with regard to the qualifications of Assistant Transport Officers under the Motor Vehicles Department. The Transport Subordinate Service Rules prescribe the qualifications for Assistant Motor Vehicles Inspectors. But it did not include that the applicant should hold a driving licence authorising him to drive light motor vehicles. As per the notification issued under S.213 of the Motor Vehicles Act, the Central Government stipulated holding of a driving licence to drive motor vehicles as an essential qualification for appointment to the post of Motor Vehicle Inspector. There, the Division Bench held that in so far as the Motor Vehicles Act prescribes qualification for Motor Vehicles Inspectors, that has to be followed by the State Government. In that context, the Division Bench relied on the decision of the Supreme Court in S. Satyapal Reddy v. Government of A. P.( 1994 (4) SCC 391 ). The Supreme Court held thus: "The Parliament preserved that power to the State Government under S.213(1), while S.213(4) empowers the Central Government to prescribe minimum qualifications for the purpose ..... The power of the Governor under the proviso to Art.309 includes prescription of qualifications for appointment. The State Government, while appointing its own officers in its Transport Department, is necessarily entitled to prescribe qualifications for recruitment or conditions of service. But, while so prescribing, the State Government may accept the qualifications or prescribe higher qualification but in no case prescribe any qualification less than the qualifications prescribed by the Central Government". In this view of the matter, we do not agree that the decision in Mohanan's Case ( 1989 (1) KLT 161 ) require further reconsideration. 15. But, while so prescribing, the State Government may accept the qualifications or prescribe higher qualification but in no case prescribe any qualification less than the qualifications prescribed by the Central Government". In this view of the matter, we do not agree that the decision in Mohanan's Case ( 1989 (1) KLT 161 ) require further reconsideration. 15. The next question is whether the employees, who were promoted as per the Special Rules, should suffer reversion in view of the fact that they did not possess the required qualifications. From the statement of facts given above, it can be seen that from 1970 upto 2nd September 1986, when the Government issued notification stating that from that date onwards even the U. D. Clerks belonging to the Weights and Measures Department would be promoted only if they were graduates. U. D. Clerks working in the Weights and Measures Department were promoted as Inspectors in spite of the fact that they did not possess the minimum qualification prescribed under the Weights and Measures (Enforcement) Rules. It is also seen that when they were promoted, there were no objections from any quarter or from persons junior to them. The first objection came only after the preparation of the provisional seniority list of Inspectors in 1985. It is further found that these promotees were also given higher promotions as Assistant Controllers, etc. The question is whether the promotions given to these persons should be held to be illegal and they be reverted to their old position directing the State Government to prepare a fresh seniority list excluding the unqualified candidates. Learned counsel Smt. Seemandini appearing for the appellants in some of the appeals submitted that Mohanan's case ( 1989 (1) KLT 161 ) did not direct the Government to prepare a fresh seniority list excluding the unqualified hands. It only declared the law stating that only persons possessing graduate qualification should be promoted as Inspectors. It further held that the notification issued by the Government on 2nd March 1986 holding that the non graduates are entitled to promotions is legally valid. It only declared the law stating that only persons possessing graduate qualification should be promoted as Inspectors. It further held that the notification issued by the Government on 2nd March 1986 holding that the non graduates are entitled to promotions is legally valid. On the other hand counsel for the contesting respondents, viz., Shri B. Gopakumar, Shri S. P. Aravindakshan Pillai and senior counsel Shri T. P. Kelu Nambiar contended that once this Court declared that graduation was essential for being promoted as Inspectors, all promotions made in violation of the same, should be declared as illegal and such promotees should be reverted back to the position before they were promoted. 16. There have been occasion when similar situation arose before the various High Courts and Supreme Court. It ultimately depends upon the facts and circumstances of each case and in many cases even though the Supreme Court found that the appointments were made against the provisions of law, it did not set aside the same, but only reminded that proper selection procedure should be followed in future. In some cases, it directed the Government to appoint certain aggrieved persons who could have been selected but for the illegal procedure followed. 17. A similar situation arose in the case of H. C. Puttaswamy and others v. The Hon'ble Chief Justice of Karnataka High Court ( AIR 1991 SC 295 ). It is relevant to quote a few sentences from paragraph 12 of the above decision. "Having reached the conclusion about the invalidity of the impugned appointments made by the Chief Justice, we cannot, however, refuse to recognise the consequence that involves on Uprooting the appellants. Mr. Gopala Subramanyam, counsel for the appellants while highlighting the human problems involved in the case pleaded for sympathetic approach and made an impassioned appeal for allowing the appellants to continue in their respective posts". The Supreme Court in paragraph 13 of the above Judgment said thus: "There is good sense in the plea put forward for the appellants. The human problem stands at the outset in these cases and it is that problem that motivated us in allowing the review petitions. It may be recalled that the appellants are in service for the past 10 years. They are either graduates or double graduates or postgraduates as against the minimum qualification of S.S.L.C. required for Second Division Clerks in which cadre they were originally recruited. It may be recalled that the appellants are in service for the past 10 years. They are either graduates or double graduates or postgraduates as against the minimum qualification of S.S.L.C. required for Second Division Clerks in which cadre they were originally recruited. Some of them seem to have earned higher qualification by hard work during their service. Some of them in the normal course have been promoted to higher cadre. They are now overaged for entry into any other service. It seems that most of them cannot get the benefit of age relaxation under rule 6 of the Karnataka Civil Services (General Recruitment) Rules, 1977. One could only imagine their untold miseries and of their family if they are left at the midstream. Indeed, it would be an act of cruelty at this stage to ask them to appear for written test and viva voce to be conducted by the Public Service Commission for fresh selection". The Supreme Court referred to the decisions reported in A. K. Yadav v. State of Haryana ( AIR 1987 SC 454 ), State of U.P. v. Refiquddin ( AIR 1988 SC 162 ) and Miss Shainda Hasan v. State of U.P. ( AIR 1990 SC 1381 ) and after considering all these cases, the Court said: "the circumstances of this case justify an humanitarian approach and indeed, the appellants seem to deserve justice ruled by mercy". Thus, the court took the view that since the appointees were in service for a long time, it would be unjust to throw them out for no fault of theirs and hence it refused to set aside the appointments. 18. A Division Bench of this Court in W. A. No. 1940/96, etc. in which one of us (Sankarasubban, J.) was a party, had the occasion to consider a similar question with regard to selection to the Life Insurance Corporation of India. There also it was found that the selection was not proper, since more than 50 per cent marks were awarded for the interview. But this Court refused to set aside the appointments. The position is somewhat similar in these cases also. Even though, the Enforcement Rules prescribe graduation as the qualification, the Subordinate Service Rules made an exemption with regard to U. D. Clerks working in the Weights and Measures Department. On the basis of this, promotions were made. But this Court refused to set aside the appointments. The position is somewhat similar in these cases also. Even though, the Enforcement Rules prescribe graduation as the qualification, the Subordinate Service Rules made an exemption with regard to U. D. Clerks working in the Weights and Measures Department. On the basis of this, promotions were made. There were no objections at the time when they were promoted. We also find that such persons had undergone training in Legal Metrology. Further, even under the new Act, there is a provision exempting those persons from possessing the graduate qualification, who were already in service. 19. Taking the broad perspective of all these matters in its peculiar facts and circumstances, we are of the opinion that in view of the fact that such persons were promoted (although they did not have the qualification as a graduate), it is not proper to dislodge them at this distance of time. Further, objections were filed by juniors to give higher seniority for them. They cannot legitimately demand exclusion of such persons from the seniority list. 20. In the result, we set aside the Judgments in O.P. Nos. 1193/87, 10918/85 and 15987/96 and dismiss those Original Petitions. The interim order passed in W.A. No. 192/91 on 18th January 1996 is vacated and the seniority list prepared in accordance with the interim order is set aside. Writ Appeal Nos. 192/91, 193/91, 196/91, 454/91 and 248/97 are allowed. O.P. Nos. 5859/96 and 9212/96 are also allowed.