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Cites 2 docs
C.P. Kalra vs Air India on 8 April, 1993
S. Prakash & Anr vs K.M. Kurian & Ors on 13 May, 1999
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K. Chathan, Valuation Assistant vs The State Of Kerala, Represented ... on 9 October, 2006

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Kerala High Court
Kerala Water Authority vs Augustin on 3 October, 2001
Author: K B Nair
Bench: K Radhakrishnan, K B Nair

JUDGMENT

K. Balakrishnan Nair, J.

1. The question raised in these Appeals for decision is whether the principles contained in Note (3) to Rule 5 of the Kerala State and Subordinate Services Rules, that when a ratio is prescribed for appointment to a post from different sources, it has to be worked out with reference to cadre strength, will apply to promotions.

2. The brief facts of the case are the following:

The Writ Petitioner who is the respondent in Writ Appeal No. 353/2000 is working as an Assistant Engineer in Kerala Water Authority since August, 1988. He is a Diploma holder in Civil engineering and is therefore eligible for promotion as Assistant Executive Engineer. For promotion, a ratio of 3:1 is prescribed between Degree holders and Diploma holders in the cadre of Assistant Engineer. According to him, the ratio has to be applied in relation to cadre strength while ordering promotions. His representing for applying the ratio to the cadre strength, instead of vacancies, were rejected. Therefore, he approached this Court by filing OP No. 21603/99 which was allowed by the learned single Judge directing to apply the ratio with reference to the cadre strength instead of vacancies. The respondents in the Original Petition filed W.A. No. 353/2000. Four Graduate Engineers who are not parties to the Original Petition have filed Writ Appeal No. 552/2000, impugning the very same judgment.

3. The appellants would contend that Note (3) to R. 5 will apply to recruitment/transfer and not to promotion. According to them, the appointment of an Assistant Engineer from the Public Health Engineering Subordinate Service to the post of Assistant Executive Engineering the Public Health Engineering Service is a promotion. Therefore, note (3) to Rule 5 of Kerala State and Subordinate Services Rules has not application. The Writ Petitioner who is the contesting respondent in the appeal, on the other hand, submits that the above Note applies with equal vigour to promotions as well.

4. A reference to the relevant Rule will be fruitful before dealing with the rival contentions. Rule 5 reads as follows:

"5. Method of recruitment:- Where the normal method of recruitment to any service, class or category is neither solely by direct recruitment nor solely by transfer but is both by direct recruitment and by transfer-

(a) the proportion or order in which the Special Rules concerned may require vacancies to be filled by person recruited direct and by those recruited by transfer shall be applicable only to substantive vacancies in the permanent cadre:

(b) a person shall be recruited direct only against a substantive vacancy to such permanent cadre, and only if the vacancy is one which should be filled by a direct recruit under the Special Rules referred to in Clause (a); and

(c) recruitment to all other vacancies shall be made by transfer.

Note:

(1) All permanent vacancies and temporary vacancies except those of short duration shall be treated as substantive vacancies.

(2) Leave vacancies and vacancies of less than 6 months' duration shall be treated as vacancies of short duration.

(3) Whenever a ratio or percentage is fixed for different methods of recruitment/appointment to a post, the number of vacancies to be filled up by candidates from each method shall be decided by applying the fixed ratio or percentage to the cadre strength of the post to which the recruitment/transfer is made and not to the vacancies existing at the time."

5. Note (3) was introduced with effect from 2.2.1993. The opening sentence of Rule 5 speaks of application of ratio in the case of "direct recruitment" and "transfer" whereas Note (3) speaks of "recruitment/appointment". The principle contained in Note (3) concerning the application of ratio applies not only to different methods of recruitment, but also to appointments otherwise than by recruitment. The said distinction assumes importance in the light of the definition of promotion contained in Rule 2(11) of Part I KS & SSR wherein promotion is defined as follows:

"Promotion means the appointment of a member of any category or grade of a service or a class of service to a higher category or grade of such service or class."

In common parlance, there is no distinction between appointment by promotion and a recruitment by transfer. But, in the light of the statutory definition contained in Part I of K.S. & S.S.R., promotion is appointment from a lower post to a higher post in the same service whereas recruitment by transfer is appointment from a post in one service to another post in a different service. In the same Department, there may be more than one service. From example, in the Revenue Department, there are four services, namely, Revenue Ministerial Subordinate Service consisting mainly of Lower Division Clerk/Village Assistant, Upper Division Clerk/Village Officer and Revenue Inspector/Head Clerk; Revenue Subordinate Service consisting of Deputy Tahsildar/Junior Superintendent; Revenue Service consisting of Tahsildar/Senior Superintended and Kerala Civil Service (Executive) consisting of Deputy Collector. The appointment of a LDC as UDC or an UDC as Head Clerk is promotion. Appointment of a Head Clerk/Revenue Inspector as Deputy Tahsildar is recruitment by transfer. The same is the case of appointment to the posts of Tahsildar and Deputy Collector even though in common parlance,, such appointments would be described as promotion.

6. Recruitment by transfer is defined in Rule 2913) of Part I KS & SSR as follows:

"2(13): A candidate is said to be "recruited by transfer" to a service-

(i) if his appointment to the service is in accordance with the orders issued or rules prescribed for recruitment by transfer to the service;

(ii) if at the time of his first appointment thereto-

(a) he is either a full member or an approved probationer in any other service, the rules for which prescribed a period of probation for members thereof:

Provided that where the Special Rules for a service provide for recruitment by transfer to any class or category thereof from any specified class or category of another service, a candidate shall, unless the recruitment is made from a post carrying an identical scale of pay, be a full member or an approved probationer in the class or category so specified; or (b) he is the holder of a post in any other service for which no probation has been prescribed, and has put in satisfactory service in that post for a period of two years on duty within a continuous period of three years."

In the light of the said definition, it is clear that the appointment of a person from one service to another service is technically described as recruited by transfer.

7. The post to which the writ petitioner, who is an Assistant Engineer in the Public Health Engineering Subordinate Service, claims promotion is Assistant Executive Engineer borne on the cadre of Kerala Public Health Engineering Service. Assistant Engineer now re-named as Assistant Executive Engineer is category IV in the said service. In Rule 2 of the Special Rules for the said service, the method of appointment to the post of Assistant Engineer (now Assistant Executive Engineer) is prescribed as recruitment by transfer from among categories 1 and 2 of Kerala Public Health Engineering Subordinate Service. The relevant extract of Rule 2 of the Special Rules for Kerala Public Health Engineering Service is as follows:-

"2. Appointment - (a) Appointment to the several categories shall be made as follows:-

Category Method of recruitment

(1) xxx xxx

(2) xxx xxx

(3) xxx xxx

(4) Assistant Engineer including Recruitment by transfer from among

Driller Engineer and Personal Assistant categories 1 and 2 of the Kerala Public

to the Superintending Engineer Health Engineering Subordinate

Service"

Therefore, the contention of the appellants that the appointment to the post of Assistant Engineer (now Assistant Executive Engineer) is not by transfer but by promotion, is plainly untenable. Smt. Chincy Gopakumar, learned counsel for the Water Authority and Shri J. George, learned counsel for the appellants in W.A. No. 552/2000 relying on the marginal note of Rule 4 (wherein the appointment is described as promotion) of the Special Rules for the Public Health Engineering Service strenuously contended that the appointment in question must be treated as promotion only. The said rule prescribes the ratio of 3:1 between Degree holders and Diploma holders. Relevant portion of this rule is extracted below:

"4. Promotion as Executive and Assistant Engineers-

(a) A person who obtains Degree in Engineering or A.M.I.E. (India) Diploma after appointment as Assistant Engineer shall be eligible for promotion as Executive Engineer only after the claims of all Assistant Engineers who on the date of his obtaining the Degree in Engineering or the A.M.I.E. (India) Diploma possessed the qualification mentioned in item (1) in the Annexure have been considered

(b) Vacancies in the category of Assistant Engineers shall be filled up from among those in categories 1 or 2 in the Kerala Public Health Engineering Subordinate Service in the ratio of 3:1....."

Except the usage of the word "promotion" in the marginal note of the said rule, there is nothing in it to show that the method of appointment to the post of Assistant Engineer (now Assistant Executive Engineer) is promotion. The said inaccuracy in the drafting of the marginal note is of no consequence when Rule 2 of the Special Rules prescribing the method of appointment categorically lays down that the method is recruitment by transfer. Further, Rule 4 deals with the qualification for appointment as Executive Engineer also, along with that for Assistant Engineer (now Assistant Executive Engineer). So, the Marginal note is partially correct as the appointment to the post of Executive Engineer is by promotion.

8. It is a settled rule of law that a marginal note cannot control the plain meaning of the words of he section. In Candler v. Director of Public Prosecutions (1962 (3) All.E.R. 142 (HL), Lord Reid has stated that marginal notes cannot be used as an aid to construction. Again, the said Lawlord in Director of Public Prosecutions v. Schildkamp (1969 (3) All.E.R. 1640 (HL)) has reiterated that: "a side note is a poor guide to the scope of a section for it cannot do not more than indicate the main subject with which the section deals".

Our Supreme Court as early as in 1950 in the decision in C.I.T. v. Ahmed Bai Ummer Bai (AIR 1950 SC 134) has held as follows:

"As pointed out by the Privy Council in Belraj Kunvar v. Jagathpal Singh (26 All. 393 at page 406) (31 IA 132 PC) marginal notes in an Indian Statue, as in an act of Parliament, cannot be referred to for the purpose of construing the Statute".

In view of the above, the reliance placed on the marginal note of Rule 4 by the counsel for the appellants cannot be accepted. Further, the marginal note of Rule 4 cannot be pressed into service to ignore the plain words of Rule 2 prescribing the method of appointment as recruitment by transfer.

9. Rule 2 of the Part II of K.S. & S.S.R. containing the General Rules says that if thee is any conflict between the Special Rules and the General Rules, the provisions in the Special rules will prevail. But, Note (3) of Rule 5 introduced with effect from 2.2.1993 overrides the above said statement in Rule 2 to the extent it concerns application of ratio in the matter of appointment/recruitment by the different methods. The Supreme Court in Prakash v. Kurian (1992 (2) KLT 710) dealing with the effect of the amendment to Rule 5 held as follows: "From the aforesaid discussion, it is clear that if the intention of the rule making authority was to establish a rule of universal application to all the services in the State of Kerala for which special rules are made, then special rules will give away to the general rules enacted for that purpose. This has to be found out from the language used in the rules which may be express or by implication. If the language is clear and unqualified, subsequent general rule would prevail despite repugnancy. If the intention of the rule making authority is to sweep away all the special rules and to establish a uniform pattern for computation of the ratio or percentage of direct recruits and by transfer, in such case, the special rules will give way..... Therefore, the entire Rule 5 deals with the special rules which provide for filling up of the vacancies to any service, class or category by direct recruitment and by transfer..."

So, the prescription of application of ratio 3:1 on the basis of arising vacancies contained in Rule 4(b) has necessarily yield to the prescription in Note (3) to Rule 5 that ratio should be applied with reference to cadre strength. It is true, as contended by the appellants, that the Supreme Court has not considered whether the Note (3) to Rule 5 will apply to promotions also.

10. As found by us earlier, the appointment in the instant case is made by recruitment by transfer. The contention of the appellants that it is by promotion cannot hold good. Even assuming it is case of promotion, w are of the view that the novel method of application of ratio found expression in Note (3) will be applicable to promotions as well. Note (3), as stated earlier, speaks of not only of "recruitment", but also of "appointment". Promotion is also appointment going by its definition contained in Rule 2(11) of Part I K.S. & S.S.R., which is extracted earlier. So, even in cases, where the method of appointment is by promotion, the ratio has to be worked out having regard to the cadre strength. This question has already been considered in a decision of a learned Single Judge of this Court in Seethilal v. State of Kerala (2000 (2) KLT 475). In the said decision, this Court has considered whether Note (3) to Rule 5 will apply to promotions also and held that the same will apply. We are in respectful agreement with the said decision.

11. In view of the above, we find no merit in the Appeals and they are hereby dismissed.

12. Learned standing counsel for the Kerala Water Authority has pointed out that the authority was earlier following the decision of a Division Bench of this Court rendered in 1993 that the ratio has to be worked out with reference to substantive vacancies. (The said decision was rendered before Note 3 to Rule 5 was introduced). The authority has acted only bona fide, the counsel submits. It is also pointed out that if the promotion are revised from 1993, applying the ratio with reference to cadre strength, the same will affect several persons who are not parties to the Original Petition or Appeals. We find considerable force in this submission. The learned counsel for the Writ Petitioner fairly submitted that review of promotions need be undertaken only from the date of judgment in the Original Petition, ie., 5.1.2000. We record that submission. The Kerala Water Authority will review the promotions, if any, made to the cadre of Assistant Executive Engineer from 5.1.2000 onwards applying the ratio between Degree holders and Diploma holders with reference to the cadre strength. Needless to say that future promotions shall only be in accordance with the principles stated hereinabove. The review of promotions shall be completed within three months from the date of receipt of a copy of this judgment.

C.C.C. No. 396/2001

13. This Contempt of Court Case is field alleging that promotions have been ordered in violation of the directions issued by the learned Single Judge. In view of the fact that we are giving time to the Water Authority to implement our directions for a period of three months from the date of receipt of a copy of this judgment this Contempt of Court case is closed. No costs.