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2011 DIGILAW 827 (KER)

Muhamad Ismail K. M. v. State of Kerala

2011-07-26

S.SIRI JAGAN

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JUDGMENT : S. Siri Jagan, J. A long pending dispute as to the recruitment rules applicable for appointment to the post of inspector in the Legal Metrology Department comes up again in these writ petitions. The main question regarding as to which rules are applicable for the purpose is canvassed in W.P.(C). No. 16215/2007. In the other writ petitions, persons claiming to be in the feeder category for promotion to the post of inspector seek directions to promote them in the 50% quota stated to be set apart for appointment by promotion as per the rules applicable. Therefore, these writ petitions are heard together and disposed of by this common judgment. 2. As per the statute in force at that time, the Government of Kerala framed the Kerala Weights and Measures (Enforcement) Rules, 1964, in which graduation was prescribed as a requisite qualification for appointment to the post of inspector. While those rules were in force, in 1978, the State of Kerala framed the Kerala Weights and Measures Subordinate Service Rules, under the Public Services Act prescribing the methods of appointment, qualifications etc. for the posts of Inspector of Weights and Measures and Technical Assistant. Although, in the same, for the post of inspector, originally graduation was prescribed as the requisite qualification, which is a prescribed qualification under the Central Rules also, later on, that was deleted from the rules. That gave raise to a dispute, which ultimately came up before a Division Bench of this Court in Mohanan v. State of Kerala, (1989 KHC 313 : 1989 (1) KLT 161 .). The question posed in that case was as to whether in view of the Kerala Weights and Measures (Enforcement) Rules, 1964, the special rules framed under the Public Services Act can be implemented for appointment of inspectors. The Division Bench held that in case of conflict between the Kerala Weights and Measures (Enforcement) Rules, 1964, and the Kerala Weights and Measures Subordinate Service Rules, 1978, the Kerala Weights and Measures (Enforcement) Rules, 1964, which is a special statute would prevail over the Kerala Weights and Measures Subordinate Service Rules. In that decision, the dispute was as to when, the Kerala Weights and Measures (Enforcement) Rules, 1964, prescribes graduation as a necessary qualification for the post of inspector, the same can be dispensed with by amending the Kerala Weights and Measures Subordinate Service Rules, 1978. In that decision, the dispute was as to when, the Kerala Weights and Measures (Enforcement) Rules, 1964, prescribes graduation as a necessary qualification for the post of inspector, the same can be dispensed with by amending the Kerala Weights and Measures Subordinate Service Rules, 1978. The result of the said decision is that minimum qualification of graduation was made compulsory for appointment to the post of inspector. The Government of Kerala later promulgated the Kerala Standards of Weights and Measures (Enforcement) Rules, 1992 under the Kerala Standards of Weights and Measures (Enforcement) Act, 1985, which came into force subsequently as per Section 72(1) of which, the State Government was vested with powers to make rules to carry out the provisions of that Act (hereinafter referred to as the 1992 Rules). Rule 20 of the said Rules reads thus: "20. Qualifications of Inspectors.- (1) No person shall be appointed as Inspector unless he- (a) is a graduate of a recognised University in Science (with Physics as one of the subjects), technology or engineering, or holds a recognised diploma in engineering; and (b) is a able to speak, read and write at least one of the regional language of the state (2) Nothing in sub-rule (1) shall apply to persons who have been working as Inspectors or who were working as Technical Assistants/U.D. Clerks in the Weights and Measures Department before commencement of these rules." By Ext.P7 in W.P.(C).No.16215/2007, Rule 20 was sought to be amended by including Lower Division Clerks also in sub rule (2) of Rule 20. That was challenged by some of the employees in O.P. No. 3492/2000, which was heard along with another original petition, viz., O.P.No.19112/1998, and disposed of by Ext.P1 judgment, wherein the Government was directed to consider the validity of the amendment made by Ext.P7. Pursuant thereto, the Government passed Ext.P9 order, wherein it was held that the amendment to 1992 Rules made by Ext.P7 is void. But in Ext.P9 order it was further held that for appointment and promotions, the Kerala Weights and Measures Subordinate Service Rules, 1978, should be applied. W.P.(C). No. 16215/2007 has been filed challenging that part of Ext.P9, wherein it has been held that the special rules made in 1978 under the Public Services Act would govern appointments and promotions. But in Ext.P9 order it was further held that for appointment and promotions, the Kerala Weights and Measures Subordinate Service Rules, 1978, should be applied. W.P.(C). No. 16215/2007 has been filed challenging that part of Ext.P9, wherein it has been held that the special rules made in 1978 under the Public Services Act would govern appointments and promotions. The contention raised is that in Mohanan's case (supra), a Division Bench of this Court has held that in case of conflict between the Kerala Weights and Measures (Enforcement) Rules and the Kerala Weights and Measures Subordinate Service Rules, the Kerala Weights and Measures (Enforcement) Rules, 1964, would prevail. Therefore, going back to the special rules for the purpose of the qualifications applicable to the post would amount to violation of the judgment of the Division Bench in Mohanan's case (supra) is the contention raised. The petitioners in the four writ petitions, therefore, seek the following relief’s: W.P.(C).No. 31581/2005: "(i) issue a writ of certiorari or other appropriate writ, direction or order calling for the records leading to Ext.P7 and P9 and to quash the same. (ii) to declare that the petitioner is entitled to be promoted to the Post of Inspector of Legal Metrology w.e.f. 1.11.2003. (iii) to issue a writ of Mandamus other appropriate writ, direction or order directing the respondents to promote the petitioner as the Inspector of Legal Metrology with retrospective effect from 1.11.2003 and to grant all the consequential service benefits at the earliest." W.P.(C).No. 16215/2007: "(i) To issue a writ of certiorari or any other writ or order to call for the records relating to Exhibit P9 and to quash the same as null and void. (ii) To issue a writ of mandamus or any other Writ or order directing the 1st and 2nd respondents not to promote any unqualified hands as Inspector, Legal Metrology in relaxation of the qualification stipulated in the Enforcement rules. (iii) To declare that Exhibit P7 Special Rules are ultra vires the Standards of Weights and Measures (Enforcement) Act, 1985 and violative of Section 72 of the Act and hence null and void to the extent of repugnancy. (iii) To declare that Exhibit P7 Special Rules are ultra vires the Standards of Weights and Measures (Enforcement) Act, 1985 and violative of Section 72 of the Act and hence null and void to the extent of repugnancy. (iv) To issue a writ of mandamus or any other writ or order directing the respondents 1 and 2 to restore the seniority of the petitioners in the cadre of Inspector, Legal Metrology, above those illegally promoted through P7 rules and in violation of the Central Act and judicial decisions." W.P.(C).No. 21006/2007: "(a) issue a writ of mandamus or other appropriate writ order or direction commanding the 2nd Respondent to grant appointment to the Petitioners as Divisional Inspector of Weights and Measures under the 50% quota set apart in Exhibit P13 Special Rules for promotion/transfer from approved probationers in the categories of Technical Assistant/Upper Division Clerks in the Department. (b) issue a writ of mandamus or other appropriate writ order or directing commanding the 2nd Respondent to effectively consider and pass appropriate orders upon Exhibits P15, P16, P17 and P18 after affording an opportunity of being heard to the Petitioners within a time limit." W.P.(C).No. 28629/2008: "(i) to call for all records relating to this case and peruse the same. (ii) Issue a writ in the nature of mandamus or such other appropriate writ order or direction commanding the 2nd respondent to convene meeting of the Departmental Promotion Committee for considering promotion to the post of Senior Inspectors in the Legal Metrology Department in the State of Kerala. (iii) Issue a writ in the nature of mandamus or such other appropriate writ order or direction commanding the 2nd respondent to promote the petitioners to the post of Senior Inspectors in the Legal Metrology Department without any delay and at any rate before the 1st petitioner retire from service." 3. A counter affidavit has been filed by the State taking the contention that action is being taken to revise the qualifications prescribed for appointment by transfer/promotion to the post of inspector in the existing rules issued in 1978 in consonance with the Kerala Standards of Weights and Measures (Enforcement) Rules, 1992. A counter affidavit has been filed by the State taking the contention that action is being taken to revise the qualifications prescribed for appointment by transfer/promotion to the post of inspector in the existing rules issued in 1978 in consonance with the Kerala Standards of Weights and Measures (Enforcement) Rules, 1992. The Director of Legal Metrology, Government of India, has filed a counter affidavit taking the stand that the Kerala Standards and Weights and Measures (Enforcement) Rules, 1992 and the Kerala Standards of Weights and Measures (Enforcement) Amendment Rules, 1999 (Ext.P7), have not been framed as per the model rules approved by the Central Government and, therefore, those rules themselves are liable to be struck down. In answer to that contention, the petitioners would take the stand that as per section 72(1) of the Standards and Weights and Measures (Enforcement) Act, 1985, what is required is consultation with the Central Government, which has been done as is evident from Exts.P11, P11(a), P11(b) and P11(c), which are copies of correspondence between the Government of Kerala and the Government of India, which would go to show that there was effective consultation between the Government of India and the Government of Kerala before framing 1992 Rules. The 4th respondent, who is an Inspector of Legal Metrology, who has been provisionally promoted, would argue for sustaining his promotion. 4. I have considered the rival contentions in detail. 5. In Ext.P9, the offending portion reads as follows: "Therefore, the Government hereby order to pursue the existing Special Rules in Legal Metrology Department for appointment/promotions. Further promotion and postings may be done strictly as per the Special Rules issued in G.O (MS)782/78/RD dated 12.5.1978." The special rules framed in 1978 lay down, apart from the qualification for the post of inspector, the method of appointment, feeder categories, age qualification and reservation in appointments. It also prescribe conditions regarding probation, training test etc. In Mohanan's case (supra) what was in issue was a conflict between the Kerala Weights and Measures (Enforcement) Rules, 1964, and the special rules. The Division Bench did not say that the special rules as a whole are bad. The Division Bench only held that if there is conflict between the two sets of rules, the Kerala Weights and Measures (Enforcement) Rules, 1964 would prevail over the Kerala Weights and Measures Subordinate Service Rules, 1978, framed under the Kerala Public Services Act. The Division Bench did not say that the special rules as a whole are bad. The Division Bench only held that if there is conflict between the two sets of rules, the Kerala Weights and Measures (Enforcement) Rules, 1964 would prevail over the Kerala Weights and Measures Subordinate Service Rules, 1978, framed under the Kerala Public Services Act. As such, in 1978 Rules, the provision regarding the qualification in conflict with the Kerala Weights and Measures (Enforcement) Rules 1964 only would be bad, meaning thereby, all other stipulations therein would be valid, such as method of appointment, age qualification etc. But in Ext.P9 what the Government has directed is that further promotions and postings may be done strictly as per the special rules of 1978, which certainly is in violation of the finding in Mohanan's case (Supra) insofar as in the 1978 Rules the qualification of graduation has been given a go by. Therefore, the other provisions, which are not in conflict with the Kerala Weights and Measures (Enforcement) Rules, would still hold the field. Therefore, the impugned direction in Ext.P9 is unsustainable on in respect of that part in the 1978 special rules relating to qualifications. 6. Still there is a lot of confusion as to the question as to which of the rules would be applicable, i.e., as to whether 1992 Standards of Weights and Measures (Enforcement) Rules or 1964 Rules would prevail. If 1992 Rules are not in accordance with the provisions of Weights and Measures (Enforcement) Act, 1985, then, by virtue of the deeming provisions in the said Act, the 1964 Rules under the predecessor legislation would still hold the field. That being so, I am of opinion that the Government is bound to take a final decision as to the rules to be made applicable for appointment to the post of inspector in the Legal Metrology Department. This issue is hanging fire for almost three decades. Now it is high time that the Government finally settles the issue at rest by framing valid rules as contemplated by the legislations applicable, without giving any room for further dispute, which they have promised to do in paragraph 6 of the counter affidavit of the 1st respondent. This issue is hanging fire for almost three decades. Now it is high time that the Government finally settles the issue at rest by framing valid rules as contemplated by the legislations applicable, without giving any room for further dispute, which they have promised to do in paragraph 6 of the counter affidavit of the 1st respondent. In the above circumstances, these writ petitions are disposed of with the following directions: That portion of Ext.P9 whereby the Kerala Weights and Measures Subordinate Service Rules in to have been made applicable is quashed. It is declared that the said Rules can be made applicable only subject to the decision in Mohanan's case (supra). The Government is directed to reconsider the issue and take a final decision as to the rules applicable to the appointment to the post of inspector in accordance with the parent Act after complying with all the procedural formalities for the same. This shall be done, as expeditiously as possible, at any rate, within six months from the date of receipt of a certified copy of this judgment. If necessary, if the Government finds it necessary to do so, they shall frame fresh valid rules, which can stand the scrutiny of law. All promotions made would continue to be provisional and after taking a decision as directed above, the promotions shall be reviewed and finalised in accordance with the rules notwithstanding the fact that some of them have already retired from service. Notwithstanding their retirement, if they are found eligible for promotion, they shall be given at least notional promotion benefits if they are found to be eligible for promotion in accordance with the rules. In this connection, I also note that the Parliament has now enacted a new Act viz., the Legal Metrology Act, 2009, repealing the Standards of Weights and Measures (Enforcement) Act, 1985. The Government of India has already framed Central rules viz., the Legal Metrology (General) Rules, 2011, in rule 28 of which, qualification of a Legal Metrology Officer corresponding to the post of inspector has been laid down. If the Government proposes to frame new rules under the new Act laying down methods of appointment etc. they may do so in consonance with the new Act and Rules. If the Government proposes to frame new rules under the new Act laying down methods of appointment etc. they may do so in consonance with the new Act and Rules. I also note that under the Act of 2009, the Central Government has framed Model of Legal Metrology (Enforcement) Rules 2010, for the State Governments to frame rules under the new Act, which shall also be borne in mind while the Government takes a decision as directed above. Some of the respondents, who got themselves impleaded in these writ petitions, claim that they are entitled to be appointed by direct recruitment insofar as they have been included in the rank list prepared by the Public Service Commission for direct recruitment to the post. After finalising the rules applicable, the Government shall make appointments in the ratio prescribed as between the direct recruits and promotees and if there are vacancies for appointment to those persons included in the rank list in the quota prescribed for direct recruitment, the Government shall appoint them in accordance with law, provided the rank list is still in force. Interlocutory applications stand closed.