Raju v. Kerala Water Authority — 1998 DIGILAW 331 (KER)

Judgment :- C.S. Rajan, J. In these Original Petitions the final seniority list of Draftsman, Grade I as on 30.4.1993 prepared by the first respondent is under challenge. The reference to the parties and exhibits in this judgment is with reference to O.P. No. 7880/97-K, 2. The petitioners are holders of diploma in Civil Engineering and they were advised and appointed as First Grade Draftsmen in the erstwhile Public Health Engineering Department. They were appointed in 1982 and 1983. The Special Rules for the Kerala Public Health Engineering Service were issued in 1966. The category of Draftsman included Water Works Inspector, Branch Inspector and Overseer. All these posts are in Grade I and diploma is the basic qualification. The lower category consisted of various posts referred to above in Grade II. The qualification prescribed for the above post is certificate. At the time of the appointment of the petitioners, promotion from the second grade to the first grade in the categories mentioned above was by 1:1 between the promotees and direct recruits. 3. The first respondent was constituted with effect from 1.4.1984 under the Kerala Water and Waste Water Act (hereinafter referred to as 'the Act'). The staff of the Public Health Engineering Department was transferred to the service of the first respondent under S.19 of the Act. Respondents 4 to 9 were appointed as second grade Draftsmen in the Public Health Engineering Department later than the petitioners. Later they were promoted to the post of First Grade Draftsman in accordance with the ratio of 1:1, Ext. P1 is the seniority list of First Grade Draftsman as on 1.1.1987 which was published for the first time after the formation of the first respondent. In the above list, the petitioners were seniors to respondents 4 to 9. The Special Rules for the Kerala Public Health Engineering Subordinate Service were amended first by Ext. P2 dated 8.12.1981 changing the ratio to 5:2:3 between Draftsmen Grade II/ Meter Inspectors (combined), Works Superintendents Grade I and II and direct recruitment. The amendment brought into force by Ext. P2 was given retrospective effect with effect from 1.4.1968 by Ext. P3. 4. In implementation of these amendments with retrospective effect, the first respondent made changes in Ext. P1 seniority list. By the above process a number of persons who were juniors to the petitioners in Ext. P1 list were given seniority above the petitioners. P2 was given retrospective effect with effect from 1.4.1968 by Ext. P3. 4. In implementation of these amendments with retrospective effect, the first respondent made changes in Ext. P1 seniority list. By the above process a number of persons who were juniors to the petitioners in Ext. P1 list were given seniority above the petitioners. The petitioners filed objections evidenced by Ext. P5. The first respondent was also making promotions to the post of Assistant Engineers on the basis of the above revised seniority list. In the meanwhile OP, No. 171/95 was filed and this Court gave an interim direction to finalise Ext. P4 seniority list. Accordingly Ext. P6(a), provisional seniority list was published inviting objections from the affected patties. Thereafter Ext. P9 (a), final seniority list was-published. It is Ext. P9(a) that is under challenge in this Original Petition. 5. Respondents 4 to 9 have been impleaded in a representative capacity and the petitioners have taken out notice to the affected parties by way of publication in papers. 6. It was argued by Sri. K.R. Kurup, learned counsel appearing for some of the petitioners that the Special Rules issued in 1966 which were amended as per Ext. P2 alone were adopted by the first respondent. The second amendment evidenced by Ext. P3 which gave retrospective effect to Ext. P2 from 1.4.1968 was not adopted by the first, respondent. Therefore, it was argued that the first, respondent erred in implementing Ext. P3, thus granting promotions to the juniors of the petitioners. 7. In this connection, it is worthwhile to refer to the ruling of the Supreme Court reported in Jacob v. Kerala Water Authority 1990 (2) KLT 673 wherein some aspects of this matter was considered. Under S.19(1) of the Act every person who was employed in the Public Health Engineering Department shall become an employee of the Water Authority and shall hold his office or service therein by the same tenure, at the same remuneration and upon the same terms and conditions and with the same rights and privileges as to pension, gratuity etc. By virtue of S.8(3) the appointment and conditions of service of the officers and employees of the authority are to be governed by the Rules made by the Government from time to time. By virtue of S.8(3) the appointment and conditions of service of the officers and employees of the authority are to be governed by the Rules made by the Government from time to time. The case before the Supreme Court arose out of the claims of persons who were appointed temporarily under R.9(a)(i) of the K.S.& S.S.R. for regularisation of their services in the Water Authority. The first respondent passed resolution No. 8 on 25th April, 1984 adopting the KS & SSR and hence all appointments made after 1.4.1984 also came to be governed by R.9(a)(i) of the KS & SSR. With regard to the nature of the Rules adopted by the first respondent, the Supreme Court held as follows: "The second batch of workers comprise those who were appointed between 1st April, 1984 and 4di August, 1986 by the Authority itself. Under S.8(1) of the Act, the powerto appoint the ecretary and other officers and staff members vests in the Authority. Only when a post above the rank of an Executive Engineer is to be created that the sanction of the State Government becomes necessary under the proviso. Sub-s.(2) to which sub-s.(1) is subject expects the Authority to seek the previous sanction of the Government if it desires to employ a servant of the Central or State Government on deputation and not otherwise. It is, therefore, clear beyond any manner of doubt that the power to appoint the staff members with whom we are concerned, solely vests in the Authority. Since the Act is brought into force w.e.f. 1st March 1984 the question of regularisation of the services of staff members appointed after that date must be examined with reference to the power found in S.8(1) of the Act. However, the contention of the Authority is based on R.9(a)(i)of the Rules, which it claims to have adopted under Resolution No. 8 dated 25th April, 1984. The authority contends mat by the trust of this rule the appointments were limited to 180 days only and since the said rules had statutory flavour, the authority was bound to act in accordance therewith. We have extracted the relevant part of this rule earlier. Since these rules were framed in exercise of power conferred by the proviso to Art.309 of the Constitution, they are undoubtedly statutory in character but Mr. We have extracted the relevant part of this rule earlier. Since these rules were framed in exercise of power conferred by the proviso to Art.309 of the Constitution, they are undoubtedly statutory in character but Mr. Poti was right in his contention that they do not retain that character in their application to the staff members of the Authority since they have been adopted by the Authority under a resolution. These rules would undoubtedly be statutory in character in their application to the members of the Kerala Subordinate Services for whom they were enacted but when any other authority adopts them by a resolution for regulating the services of its staff, the rules do not continue to remain statutory in their application to the staff of that Authority. They are like any other administrative rules which do not have statutory force. It was not contended, as indeed it could be that these rules derive statutory force from S.64 or 65 of the Act. S.64 confers the rulemaking power on the State while S.65 empowers the Authority to make regulations with the previous approval of the Government. It is nobody's case that these rules were adopted after obtaining the previous approval of the Government. If that be so, we must accept Mr. Poti* s submission that these rules in their application to the staff members of the Authority appointed after 1st April, 1984 have no statutory flavour of force." Thus, according to the Supreme Court, the Kerala State and Subordinate Service Rules, as adopted by the Water Authority are not statutory rules but they are like any other administrative rules without any statutory flavour. Deriving support from the above ruling, it was argued that the Special Rules which are applicable to the employees of the Public Health Engineering Department cannot be considered as Statutory Rules when they are made applicable to the employees of the first respondent by passing a resolution to adopt these rules. What is adopted by the first respondent is the Rules as it stood at the time of the resolution of the first respondent. Any amendment brought into force by the Government to the Special Rules subsequent to the adoption of the above rule by the first respondent will not become automatically part of the Rules which had already been adopted by the first respondent. 8. Any amendment brought into force by the Government to the Special Rules subsequent to the adoption of the above rule by the first respondent will not become automatically part of the Rules which had already been adopted by the first respondent. 8. The learned counsel cited the ruling reported in Varghese v. State of Kerala. 1988 (1) KLT 507. In the above case, the provisions of the K.S.& S.S.R. are made applicable to the Municipal Common Service by R.14 of the Municipal Common Service Rules which provides that the provisions of the K.S.& S.S.R. will apply to that service wherever express provision is not otherwise provided for in the Special Rules. By virtue of the above Rules, R.27 which provides the principle to be followed for the purpose of determining the seniority were made applicable to the Municipal Common Service. But the later amendment to R.27 could not be made part of the K.S.& S.S.R. as made applicable to the Municipal Common Service. Dealing with the above aspect the Division Bench in the above ruling stated as follows: "6. It is necessary to point out that the provisions of the K.S . & S S R. are made applicable to the Municipal Common Service by R.14 of the Municipal Common Service Rules which provides that the provisions of the K.S.& S.S.R.1958 will apply to that service wherever express provision is not otherwise provided for in the said Rules. The Municipal Common Service Rules do not contain any provisions regulating seniority of the members of the Municipal Common Service. Hence there cannot be any doubt that R.27 of the K.S.& S.S.R.,a provision which regulates seniority, has become part of the Municipal Common Service Rules by incorporation, haying regard to the express provisions contained in R.14(1) of the said Rules. R.14 does not provide that the provisions of the K.S.& S.S.R.1958 shall be applicable to the members of the Municipal Common Service as and when they stand amended from time to time. It therefore, follows that it is only those provisions of the K.S.& S.S.R. that were actually in force and were in the statute book on the 1st of November, 1967 that became part of the Municipal Common Service Rules by the principle of incorporation. It therefore, follows that it is only those provisions of the K.S.& S.S.R. that were actually in force and were in the statute book on the 1st of November, 1967 that became part of the Municipal Common Service Rules by the principle of incorporation. Hence it is only those provisions in the K.S.& S.S.R. that were there on the Is t of November 1967 that became part of the Municipal Common Service Rules and not the amendments effected to the K.S.& S.S.R. after 1.11.1967. Hence we have to eschew from consideration the amendments to R.27 effectedafterl.il.1967. The second proviso to clause (b) of R.27 was inserted by the Government Order dated 15.11.1972. Hence the same did not become part of the Municipal Common Service Rules. Though the amendment made in 1972 has been given retrospective effect from 17.2.1958, the same does not become part of the Municipal Common Service Rules, it having been introduced by way of amendment after 1.11.1967. The same is the position in respect of another amendment which was brought about by G.O. dated 1.11.1975 published in the Kerala Gazette dated 1.11.1975". 9. To counter the above argument Sri. Babu Varghese, learned counsel for the first respondent wanted to introduce the theory of "referential incorporation". The learned counsel also cited the ruling of the Supreme Court reported in Bajaya v. Gopikabai (1978) 2 SCC 542. The Supreme Court dealt with the legislation by referential incorporation in the following words: "26. Broadly speaking, legislation by referential incorporation falls in two categories: First, where a statute by specific reference incorporates the provisions of another statute as of the time of adoption. Second, where a statute incorporates by general reference, the law concerning a particular subject, as a genus. In the case of the former, the subsequent amendments made in the referred statute cannot automatically be read into the adopting statute. In the case of latter category, it may be presumed that the legislative intent was to include all the subsequent amendments also made from time to time in the generic law on the subject adopted by general reference. This principle of construction of a reference statute has been neatly summed up by Sutherland, thus: "A statute which refers to the law of a subject generally adopts the law on the subject as of the time the law is invoked. This principle of construction of a reference statute has been neatly summed up by Sutherland, thus: "A statute which refers to the law of a subject generally adopts the law on the subject as of the time the law is invoked. This will include all the amendments and modifications of the law subsequent to the time the reference statute was enacted." Corpus Juris Secundum also enunciates the same principle in these terms: "Where the reference in an adopting statute is to the law generally which governs the particular subject, and not to any specific statute or part thereof the reference will be held to include the law as it stands at the time it is sought to be adopted, with all the changes made from time to time, atleast as far as the changes are consistent with the purpose of the adopting statute". Of course there cannot be any doubt with regard to the well known principle by which a statute adopts by incorporating the provisions of another statute either by general reference or by specific reference. If it is a specific reference, it incorporates only the provisions of the other statute at the time of the adoption. If it is a general reference, then all the subsequent amendments can automatically be adopted by the statute. 10. But according to me, there is no scope for adopting the above principle in the present case. This is a case where the first respondent adopted by a specific resolution the Special Rules of the Public Health Engineering Department as on the date of the resolution. By the subsequent amendment of the above Special Rules, they cannot automatically become part of the Special Rules. The Supreme Court, as noticed earlier, has held that after the adoption of the Rules, the Rules do not partake the colour of a statute. Therefore, I do not find any justification to accept and read into the Rules the subsequent amendments made by the State Government as per Ext. P3. 11. There is another formidable argument against the retrospective amendment introduced by Ext. P3. The ratio prevalent at the time when the petitioners were recruited directly in 1980, 1981 and 1982 etc. is now changed with retrospective effect from 1.4.1968. Those persons who were juniors to the petitioners were able to steal a march over them by virtue of the retrospective introduction of the ratio by Ext. P3. P3. The ratio prevalent at the time when the petitioners were recruited directly in 1980, 1981 and 1982 etc. is now changed with retrospective effect from 1.4.1968. Those persons who were juniors to the petitioners were able to steal a march over them by virtue of the retrospective introduction of the ratio by Ext. P3. This is not permissible in law. It is directly against the mandate of Arts.14 and 16. Therefore, I am of the view that Ext. P3 cannot be made applicable to the service of the first respondent and therefore Ext. P9 seniority list which was recast on the basis of Ext. P3 is also liable to be quashed. 12. The first respondent therefore has to prepare a fresh seniority list on the basis of the Special Rules which govern the services as per Ext. P2 without the retrospective effect given by Ext. P3. The ratio as per Ext. P2 as adopted by the first respondent must be applied in the preparation of fresh seniority list of First Grade Draftsmen. The Original Petitions are allowed as indicated above.