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2024 DIGILAW 1121 (KER)

Aswathy K. R. , W/o. Shiju C. S. v. Raheena C. , W/o. Asharaf K. V.

2024-09-05

ANIL K.NARENDRAN, P.G.AJITHKUMAR

body2024
JUDGMENT : P.G. Ajithkumar, J. Similar questions are involved in both these cases. The petitioners in both cases are the same. The question is concerning interpretation of a ‘Note’ which does not go in consonance with the main provision. The Kerala Administrative Tribunal took the view that the ‘Note’ has to be read down and the process of the recruitment shall be in terms of the main provision uncontrolled by the ‘Note’. 2. O.P.(KAT) No.280 of 2024: The petitioner was the additional 3rd respondent in O.A. No. 1192 of 2023 before the Kerala Administrative Tribunal, Thiruvananthapuram. A vacancy of Chemical Assistant in the Hydrochemistry branch in the Ground Water Department arose. The appellant in the O.A, who was working as a Senior Clerk in the Department applied for transfer appointment. A select list for direct recruitment prepared by the Public Service Commission is live. There arose a dispute as to whether the claim of the applicant in the O.A for appointment by transfer was sustainable or the candidate from the PSC list to be advised for direct recruitment. The petitioner's claim was that she was entitled to be advised for appointment for direct appointment. 3. O.P.(KAT) No.309 of 2024: The petitioner was not a party to O.A. No.1408 of 2023. The applicant therein was working as a Senior Clerk in the Ground Water Department and she claimed to have qualified to be appointed by transfer to the post of Chemical Assistant in Hydrochemistry branch in the Department. Pointing out the relevant rule in the Kerala Ground Water Department Subordinate Service Rules, 1993 (Special Rules), she claimed appointment. The Tribunal allowed the O.A. Aggrieved by the common order allowing the O.As. the petitioner has filed these Original Petitions invoking the provisions of Article 227 of the Constitution of India. O.P.(KAT) Nos.280 and 309 of 2024: 4. Heard the learned counsel for the petitioner, the learned counsel for the party respondents and the learned Senior Government Pleader. 5. As stated above, the question involved in these matters centres around interpretation of the provisions concerning mode of appointment to the post of Chemical Assistant in Branch-IV Hydrochemistry in the Ground Water Department. The Rule contained in the Special Rules reads as follows : Chemical Assistant (i) Appointment by transfer from the Departmental hands (Clerical staff) with the prescribed qualifications according to seniority in the Department. The Rule contained in the Special Rules reads as follows : Chemical Assistant (i) Appointment by transfer from the Departmental hands (Clerical staff) with the prescribed qualifications according to seniority in the Department. (i) B.Sc.Degree in Chemistry; and (ii) Two years service in the Department. (ii) In the absence of qualified hands under item (i) above, by direct recruitment. (i) Master's Degree in Chemistry/ Agricultural Chemistry with not less than 50% marks; or (ii) In the absence of candidates with the above qualification B.Sc. Degree in Chemistry with not less than 50% marks and with two years experience in routine analytical work in any Government Department; (iii) In the absence of candidates with two years experience under item (ii) above, B.Sc. Degree in Chemistry with not less than 50% marks. Note:- A ratio of 3:1 will be followed between direct recruitment and appointment by transfer. 6. The learned counsel for the petitioner would submit that when the Note prescribes a ratio of 3:1 between direct recruitment and appointment by transfer, the same controls the main provisions concerning appointment. In the view of the learned counsel, the Note exemplifies the provisions in the main rule. When two modes for the appointment are provided, both should have importance and stipulation in the Note has to be strictly followed. The Tribunal followed a decision of this Court in W.P.(C) Nos.4193 of 2007 and 30667 of 2005 to take the view that the Note has no effect. But, that decision is not a binding precedent for, it was rendered on the concession by the Government. It is not the law laid down after interpretation of the provisions and hence the same should not have been acted upon by the Tribunal. 7. The learned counsel placed reliance on the decision of a Division Bench of this Court in Krishna Varma Raja v. District Educational Officer [ 1976 KLT 506 ] in order to contend that the Note to a Rule is always an explanatory one, and its scope has to be judged in the light of the purport of the provision. Its ordinary purpose is to clear up any possible ambiguity existing in the main body of the rule. It is accordingly contended that the Note shall govern the provisions in the rule. 8. Its ordinary purpose is to clear up any possible ambiguity existing in the main body of the rule. It is accordingly contended that the Note shall govern the provisions in the rule. 8. The learned counsel for the party respondents would submit that the function of a Note is ordinarily to explain, qualify or restrain the operation of the main provision and like a proviso, a Note shall always be strictly construed. The Note cannot be construed so as to limit the application of the main provision. In this regard, the learned counsel places reliance on Sanu v. State of Kerala [ 2004 (1) KLT 591 ]. 9. In Krishna Varma Raja [ 1976 KLT 506 ] this Court interpreted Rule 51A of Chapter 14-A of the Kerala Education Rules, 1959. The Note to the rule lays down the priority principle. The Court took the view that the note is an explanatory one and the body of the provision has to be understood in the context of the Note. There has not been any conflict between the body of the provision and Note unlike the present rule governing appointment of Chemical Assistant in the Ground Water Department. Therefore, the principle in Krishna Varma Raja [ 1976 KLT 506 ] is not applicable to the facts of this case. 10. In Sanu [ 2004 (1) KLT 591 ] the interpretation was concerning a proviso to the section. A learned Single Judge of this Court took the view that the proviso, which is intended to explain, qualify or restrain operation of the preceding provision. The proviso has to be strictly construed and the same cannot qualify what is intended by the body of the provision. The purpose of adding a note was not a question there. Therefore, the view taken in Sanu [ 2004 (1) KLT 591 ] cannot also be resorted to understand the purpose of Note this case. 11. It is true that the Government conceded before this Court in W.P.(C) Nos.4193 of 2007 and 30667 of 2005 that the intention of the rule governing appointment of Chemical Assistant in the Hydrology Department is to give priority to the departmental candidate and in the absence of candidates for transfer appointment alone direct recruitment is possible. The Tribunal took the view that the rule in the Special Rules can have that meaning only and therefore the Note cannot be given effect. The Tribunal took the view that the rule in the Special Rules can have that meaning only and therefore the Note cannot be given effect. It was also held that having the Government taken such a stand earlier, it cannot now reprobate to a different view. The Tribunal went further to say that without resorting to appropriate amendment to the Special Rules, the Note cannot be given effect to, which is violative of the substantive provision contained in the rule. 12. The question is whether the Note can be made workable in the light of the substantive provisions of the Rule. Clause (i) of the Rule says that the mode of appointment is by transfer. Clause (ii) says that in the absence of qualified hands under item (i) above, direct recruitment can be resorted to. These clauses are followed by the Note, which says that the ratio of 3:1 will be followed between direct recruitment and recruitment by transfer. The contention of the learned counsel for the petitioner is that there shall be a harmonious construction of the above provisions so as to give effect to the Note. In that view of the matter, it is submitted that appointments to the post of Chemical Assistant can be made following 3:1 ratio alone. 13. Language of the substantive provision in the rule is plain. In the absence of qualified hands under item No. (i) for appointment by transfer only, the second mode of direct recruitment is possible. If it is insisted that 3:1 ratio is always maintained, both modes for appointment contained in (i) and (ii) should be simultaneous and cannot an alternative. Such a view will militate against the plain meaning of the aforesaid provision. It is the settled law that if language of the provision is plain, its literal interpretation shall always be resorted to. A harmonious interpretation is resorted to when two provisions are apparently conflicting, and the purpose is to resolve the conflict so as to give effect to both provisions to the extent possible. 14. Here, if the Note is given effect to, the main provision of the rule will become unworkable. Take an example; there are eight posts, one post is occupied by a transfer appointee and six by direct recruits. If no candidate for by transfer appointment is available, the 8th vacancy will remain unfilled for indefinite period. 14. Here, if the Note is given effect to, the main provision of the rule will become unworkable. Take an example; there are eight posts, one post is occupied by a transfer appointee and six by direct recruits. If no candidate for by transfer appointment is available, the 8th vacancy will remain unfilled for indefinite period. That cannot be the intent of the provision. Such a mischievous interpretation is not allowed in law. 15. As stated, going by the plain meaning of the provision, only in the absence of qualified hands for appointment by transfer, there can be direct recruitment. Of course, if such a course is opted, the note may become nugatory. Since the note as now stands can work out mischief, in order to give effect to the true intent of the rule, the Note is liable to be read down. 16. In Calcutta Gujarati Education Society v. Calcutta Municipal Corporation [ (2003) 10 SCC 533 ] the Apex Court observed that the rule of “Reading Down” is only for the limited purpose of making a provision workable so as to fulfill the purpose and object of the statute. The Apex Court in the Central Bank of India v. Shanmugavelu [(2024) 6 SCC 641] held that “Reading Down” involves construing the language of the provision in a manner that limits its scope or application, making it consistent with constitutional or legal principles. It is one of the many methods of interpretations the court may turn to when it finds that a particular provision, if for its plain meaning, cannot be saved from invalidation. So, by restricting or reading it down, the court makes it workable to salvage and save the provision from invalidation. The rule of “Reading Down” is however, used only for the limited purpose of making a provision workable and its objective achievable. 17. In that view of the matter, we find that the Administrative Tribunal correctly had interpreted the rule and impugned orders do not require any interference. The original petitions are therefore dismissed.