Kerala High Court
Rosemary Varkey.M vs State Of Kerala on 18 July, 2024
Author: A.Muhamed Mustaque
Bench: A.Muhamed Mustaque
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE ACTING CHIEF JUSTICE MR. A.MUHAMED MUSTAQUE
&
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
&
THE HONOURABLE MR. JUSTICE S.MANU
THURSDAY, THE 18TH DAY OF JULY 2024 / 27TH ASHADHA, 1946
OP(KAT) NO. 393 OF 2023
AGAINST THE ORDER DATED 18.08.2023 IN OA (EKM) NO.72 OF 2021 OF
KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM (ADDL.BENCH
AT ERNAKULAM)
PETITIONERS/APPLICANTS 2 & 3 IN THE O.A.:
1 ROSEMARY VARKEY.M.,
AGED 35 YEARS
D/O. VARKEY.M.O.,C/O. SHIRLY JOHN, PARAPPILLY, SOUTH
KADAVANTHRA, ERNAKULAM, KOCHI, PIN - 682020
2 GINU GEORGE.P.,
AGED 36 YEARS
W/O. SYAM JOSE.M.,MANICKATHAN HOUSE, OKKAL.P.O.,
KALADY, ERNAKULAM, PIN - 683550
BY ADVS.
ELVIN PETER P.J.
K.R.GANESH
GOURI BALAGOPAL
O.P.(KAT).No.393/2023
-:2:-
ABHIJITH.K.ANIRUDHAN
SREELEKSHMI A.S.
RESPONDENT/S:
1 STATE OF KERALA,
REPRESENTED BY THE SECRETARY, SOCIAL JUSTICE
DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN -
695001
2 THE DIRECTOR,
SOCIAL JUSTICE DEPARTMENT, DIRECTORATE OF SOCIAL
JUSTICE DEPARTMENT,VIKAS BHAVAN, THIRUVANANTHAPURAM,
PIN - 695033
3 THE KERALA PUBLIC SERVICE COMMISSION,
REPRESENTED BY ITS SECRETARY, PATTOM.P.O.,
THIRUVANANTHAPURAM, PIN - 695004
4 SABEENA BEEGAM.S.,
PROBATION OFFICER GRADE-II, PROBATION OFFICE, KOLLAM,
PIN - 691013
5 RAJASREE.V.,
PROBATION OFFICER GRADE-II,GOVERNMENT CHILDREN'S
HOME,THRISSUR, PIN - 680020
6 MAHESWARAN NAIR.K.,
PROBATION OFFICER GRADE-II,PROBATION
OFFICE,THIRUVANANTHAPURAM, PIN - 695001
7 VENU NAIR.R.,
PROBATION OFFICER GRADE- II,GOVERNMENT CHILDREN'S
HOME,THIRUVANANTHAPURAM, PIN - 695001
8 BIJU.K.V.,
PROBATION OFFICER GRADE-II,PROBATION
OFFICE,MALAPPURAM, PIN - 676505
9 SREENATH. N. KOOTTAMPILLY,
AGED 39 YEARS
S/O. NARAYANAN NAMBOOTHIRI.K.V.,KOOTTAMPILLY MANA,
KATTOOR.P.O.,THRISSUR, PIN - 680702
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR
ADMISSION ON 18.07.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
O.P.(KAT).No.393/2023
-:3:-
'C.R.'
A.MUHAMED MUSTAQUE, ACTING CHIEF JUSTICE
&
SHOBA ANNAMMA EAPEN & S.MANU, JJ.
---------------------------------------------
O.P.(KAT).No.393/2023
---------------------------------------------
Dated this the 18th day of July, 2024
JUDGMENT
A.Muhamed Mustaque, Acg.C.J. This matter is placed before the Full Bench based on a reference order dated 18/9/2023 of a Division Bench of this Court doubting the law laid down by another Division Bench in O.P.(KAT).No.80/2013 and connected case.
2. The question that arises for consideration is whether the rules framed under the Probation of Offenders Act, 1958, a Central enactment, will prevail over the Special Rules for the Kerala Social Welfare Subordinate Service framed under the general provisions of the Kerala Public Services Act, 1983 or not. A Division Bench of this Court O.P.(KAT).No.393/2023 -:4:- in Mohanan v. State of Kerala [1989 (1) KLT 161] declared that the rules framed under the special enactment, that is, the Kerala Weights and Measures (Enforcement) Act would prevail over the Kerala Weights and Measures Subordinate Service Rules, 1978 framed under the general provisions of the Kerala Public Services Act, 1968.
3. The Division Bench in O.P.(KAT).No.80/2013 and connected case, without adverting to Mohanan's case (supra), took the view that the Kerala Public Services Act, 1983 having obtained the assent of the President under Article 254(2) of the Constitution, the Special Rules for the Kerala Social Welfare State Service will prevail over the rules framed under the Probation of Offenders Act, 1958.
4. The petitioners in this case are the applicants before the Tribunal. They are included in the rank list for appointment to the post of Probation Officer Grade II in the Social Justice Department under the Kerala Probation of Offenders Rules framed under the Probation of Offenders Act. The method of appointment to the post is direct recruitment and appointment by transfer in the ratio of 2:1. In the Special Rules, namely, the Kerala Social Welfare Subordinate Service framed under the Kerala Public Services Act, the ratio of the method of O.P.(KAT).No.393/2023 -:5:- appointment between the direct recruitment and appointment by transfer is 1:2. The petitioners contended that the rules framed under the Central enactment will have to be followed in regard to the ratio. The Tribunal did not accept this argument in the light of the judgment of the Division Bench of this Court in O.P. (KAT).No.80/2013 and another.
5. The Probation of Offenders Act, 1958 enacted by the Central Government is under Entry 2 of List III of the Seventh Schedule to the Constitution. The Kerala Public Services Act, 1968 was enacted by the State Legislature in exercise of powers under Article 309 of the Constitution of India and read with Entry 41 of List II of the Seventh Schedule to the Constitution.
6. The Government of Kerala made the rules, the Kerala Probation of Offenders Rules, 1960 in exercise of the powers conferred under Section 17 of the Probation of Offenders Act, 1958. The Kerala Public Services Act, 1968 was amended by Act 4 of 1984. By the Amendment Act, Section 4 was inserted with effect from 1/10/1981. This amendment was necessitated consequent upon the judgment of the Full Bench of this Court dated 7/10/1982 holding that provisional or O.P.(KAT).No.393/2023 -:6:- temporary employees working in Government Departments are entitled to the benefit of protection of Chapter V-A of the Industrial Disputes Act, 1947. Section 4 was incorporated with retrospective effect to prevail the provisions of the Kerala Public Services Act and Rules over the Industrial Disputes Act, 1947, the Central enactment. This amendment received the assent of the President on 5/1/1984. In the light of the assent obtained by the President, the Division Bench, in O.P.(KAT).No. 80/2013 and another, was of the view that the rules framed under the Kerala Public Services Act would prevail over the rules framed under the Probation of Offenders Act. In Mohanan's case (supra), the Division Bench did not examine the question from the angle of repugnancy referred to in the judgment in O.P.(KAT).No. 80/2013 and connected case. In Mohanan's case, the Division Bench was of the view that the Public Services Act is a general enactment and the rules for the Kerala Weights and Measures Subordinate Service being the rules framed under the general enactment, the rules framed under the Special enactment, the Kerala Weights and Measures (Enforcement) Act must prevail over the rules framed under the general enactment. O.P.(KAT).No.393/2023 -:7:-
7. The Probation of Offenders Act, 1958 is enacted by the Parliament under Entry 2 of List III of the Constitution whereas the Public Services Act, 1983 was enacted by the State based on Entry 41 of List II of the Constitution. The ratio prescribed under the rules of the Central enactment and the State enactment is having obvious repugnancy. In the rules framed under the Central enactment, the ratio is 2:1 between direct recruitment and by transfer appointment. However, in the Rules framed under the State enactment, it is 1:2. This inconsistency is irreconcilable, and this conflict cannot be circumvented or averted. Under Article 254(1), a law made by the State legislature is void to the extent of its repugnancy to a law made by the Parliament, which is competent to enact laws enumerated in the concurrent list, subject to clause 2 of Article 254. Article 254 relaxes the rule of repugnancy and saves the State legislation, if such State legislation obtains the assent of the President as referred in Article 254(2).
8. The point in this case is whether the assent obtained from the President for Amendment Act 4 of 1984 by inserting Section 4 would save all rules made under the Public Services Act or not. The Division Bench in O.P. (KAT).No. 80/2013 and connected case was of the view that the assent obtained for incorporation of Section 4 would save all O.P.(KAT).No.393/2023 -:8:- rules made under the State enactment. It is appropriate to refer Section 4 of the Kerala Public Services Act which reads thus:
4. Act and Rules thereunder to apply to certain persons notwithstanding anything in the Industrial Disputes Act or any other law:- Notwithstanding anything contained in Chapter V-A or in any other provision of the Industrial Disputes Act, 1947 (Central Act 14 of 1947) or in any other law for the time being in force, or in any judgment, decree or order of any court, the appointment of any person to any public service or post in connection with the affairs of the State of Kerala and the conditions of service (including termination of service) of any person appointed to any such service or post shall be governed by the provisions of this Act and the Rules made or deemed to have been made thereunder.
9. In order to understand this issue, it is necessary to understand the meaning of 'assent'. 'Assent' in this context means, a conscious permission from the President to avoid repugnancy. That means, the President would give assent if there is repugnancy between the State and the Parliament on the law subject. The assent refers to repugnancy under two circumstances; one, in clause 1 of Article 254 of the Constitution, repugnancy refers to the law made by the State repugnant to the provisions so made by the Parliament which the Parliament is competent to enact including, in respect of the matters enumerated in the concurrent list; and the second, clause 1 of Article 254 refers to repugnancy of a State law with Union law relating to the O.P.(KAT).No.393/2023 -:9:- same matter in the concurrent list. Clause 1 of Article 254 states that such law is void subject to the provisions of clause 2. Clause 2 of Article 254 refers to repugnancy of law made by the State and the Parliament in respect of the matters under the concurrent list. In both situations referred under clause 1 and clause 2, the State law will become valid if it has received the assent of the President to prevail in that State.
10. The Apex Court in Forum for People's Collective Efforts v. State of W.B., [(2021) 8 SCC 599] referred to salient features of Article 254 as follows:
116. Some of the salient features of Article 254 may be noticed at this stage:
116.1.Firstly, Article 254(1) embodies the concept of repugnancy on subjects within the Concurrent List on which both the State Legislatures and Parliament are entrusted with the power to enact laws.
116.2.Secondly, a law made by the legislature of a State which is repugnant to parliamentary legislation on a matter enumerated in the Concurrent List has to yield to a parliamentary law whether enacted before or after the law made by the State Legislature.
116.3.Thirdly, in the event of a repugnancy, the parliamentary legislation shall prevail and the State law shall "to the extent of the repugnancy" be void.
116.4.Fourthly, the consequence of a repugnancy between the State legislation with a law enacted by Parliament within the ambit of List III can be cured if the State legislation receives the assent of the President.O.P.(KAT).No.393/2023 -:10:-
116.5.Fifthly, the grant of Presidential assent under clause (2) of Article 254 will not preclude Parliament from enacting a law on the subject-matter, as stipulated in the proviso to clause (2).
11. Thus, the 'assent' in this context has to be understood with specific reference to repugnancy which is referred to obtain the President's assent. That means, to validate any legislation, the President must receive the request on inconsistency or the repugnancy of the law.
12. The Apex Court in Kaiser-I-Hind Pvt. Ltd. and another v.
National Textile Corpn. (Maharashtra North) Ltd. and Others [(2002) 8 SCC 182] in para.14 held as follows:
14. In view of the aforesaid requirements, before obtaining the assent of the President, the State Government has to point out that the law made by the State Legislature is in respect of one of the matters enumerated in the Concurrent List by mentioning entry/entries of the Concurrent List and that it contains provision or provisions repugnant to the law made by Parliament or existing law.
Further, the words "reserved for consideration" would definitely indicate that there should be active application of mind by the President to the repugnancy pointed out between the proposed State law and the earlier law made by Parliament and the necessity of having such a law, in the facts and circumstances of the matter, which is repugnant to a law enacted by Parliament prevailing in a State. The word "consideration" would manifest that after careful thinking over and due application of mind regarding the necessity of having State law which is repugnant to the law made by Parliament, the President may grant assent. This aspect is further O.P.(KAT).No.393/2023 -:11:- reaffirmed by use of the word "assent" in clause (2), which implies knowledge of the President to the repugnancy between the State law and the earlier law made by Parliament on the same subject-matter and the reasons for grant of such assent. The word "assent" would mean in the context as an expressed agreement of mind to what is proposed by the State.
13. The Apex Court in the above judgment referred to the meaning of 'assent' and further held in para.16 as follows:
16. Applying the aforesaid meaning of the word "assent" and from the phraseology used in clause (2), the object of Article 254(2) appears that even though the law made by Parliament would have supremacy, after considering the situation prevailing in the State and after considering the repugnancy between the State legislation and the earlier law made by Parliament, the President may give his assent to the law made by the State Legislature. This would require application of mind to both the laws and the repugnancy as well as the peculiar requirement of the State to have such a law, which is repugnant to the law made by Parliament.
The word "assent" is used purposefully indicating affirmative action of the proposal made by the State for having law repugnant to the earlier law made by Parliament. It would amount to accepting or conceding and concurring to the demand made by the State for such law. This cannot be done without consideration of the relevant material. Hence, the phrase used is "reserved for consideration", which under the Constitution cannot be an idle formality but would require serious consideration on the material placed before the President. The "consideration" could only be to the proposal made by the State.
14. In this case, we specifically note that the assent of the President has been obtained with specific reference to the provisions of the Industrial Disputes Act as it is so clear from Section 4 of the Kerala Public Services Act itself. If assent has been obtained only with O.P.(KAT).No.393/2023 -:12:- reference to the repugnancy pointed out, that itself cannot take in all other rules made under the enactment which have not been referred to obtain assent of the President. If there was no specific reference to any statutory rules which were found repugnant to the Central enactment, the Court cannot presume 'assent' to such repugnancy based on the assent given to some other request in relation to general enactment. The assent must be with reference to specific conflict or inconsistency or repugnancy that exist with reference to a particular Central enactment.
15. In Delhi High Court Bar Association and Ors. Vs. Govt. of NCT of Delhi and Ors. [MANU/DE/3559/2013], the Delhi High Court Court held at paras.340 & 344 as follows:
340. This, thus, is in fact reiteration of the meaning of assent in 'general terms', stated in (1985) 3 SCC 661, Gram Panchayat of Village Jamalpur v.
Malwinder Singh wherein the court observed as follows:
12....If the assent is sought and given in general terms so as to be effective for all purposes, different considerations may legitimately arise. But if, as in the instant case, the assent of the President is sought to the law for a specific purpose, the efficacy of the assent would be limited to that purpose and cannot be extended beyond it.O.P.(KAT).No.393/2023 -:13:-
Not only was the President not apprised in the instant case that his assent was sought because of the repugnancy between the State Act and the preexisting Central Act on the vesting of evacuee properties but, his assent was sought for a different, specific purpose altogether. Therefore, that assent cannot avail the State Government for the purpose of according precedence to the law made by the State Legislature, namely, the Punjab Act of 1953, over the law made by the Parliament, even within the jurisdiction of the State.
(Emphasis supplied)
344. Based on the foregoing, we find that the Supreme Court has held that, in order to ensure that the President undertakes the constitutionally required 'consideration' of a repugnancy under either of the Articles- 239AA or be it 254(2), the body seeking Presidential assent must:
(i) Apprise the President of the reasons as to why assent is being sought;
(ii) Apprise the President of the necessity of overruling the predominance of the Central law, and justify this claim of necessity;
(iii) Specifically point out the particular Central law or laws with reference to which predominance is desired (if claiming repugnancy with an entire Central law or laws);
(iv) Specifically point out the particular provisions within a Central law with reference to which predominance is desired (if claiming repugnancy with particular provisions of a Central law or laws);
(v) Point out the nature and extent of the repugnancy; and
(vi) Precisely and specifically outline the extent of protection sought O.P.(KAT).No.393/2023 -:14:- with regard to the consequences that would follow.
16. In Rajiv Sarin v. State of Uttarakhand [(2011) 8 SCC 708] held as follows:
45. For repugnancy under Article 254 of the Constitution, there is a twin requirement, which is to be fulfilled: firstly, there has to be a "repugnancy"
between a Central and State Act; and secondly, the Presidential assent has to be held as being non-existent. The test for determining such repugnancy is indeed to find out the dominant intention of both the legislations and whether such dominant intentions of both the legislations are alike or different. To put it simply, a provision in one legislation in order to give effect to its dominant purpose may incidentally be on the same subject as covered by the provision of the other legislation, but such partial or incidental coverage of the same area in a different context and to achieve a different purpose does not attract the doctrine of repugnancy. In a nutshell, in order to attract the doctrine of repugnancy, both the legislations must be substantially on the same subject.
17. Thus, we conclude that any Special Rules made under the Kerala Public Services Act in conflict with the rules framed under the Central enactment, the rules framed under the Central enactment would prevail unless assent of the President is obtained in regard to the rules framed under the Kerala Public Services Act. Thus, we hold that the law laid down in the judgment of O.P. (KAT).No.80/2013 is not a good law. We answer the reference as above.
O.P.(KAT).No.393/2023-:15:-
We find no other point of law involved in this matter for consideration by the Division Bench. We, therefore, dispose of the original petition itself setting aside the impugned judgment of the Tribunal and directing the appointing authority and the Public Service Commission to follow the ratio in accordance with the rules framed under the Probation of Offenders Act.
Sd/-
A.MUHAMED MUSTAQUE, ACTING CHIEF JUSTICE Sd/-
SHOBA ANNAMMA EAPEN, JUDGE Sd/-
S.MANU, JUDGE
ms
O.P.(KAT).No.393/2023
-:16:-
APPENDIX OF OP(KAT) 393/2023
PETITIONER ANNEXURES
ANNEXURE A1 TRUE COPY OF THE RANKED LIST NO.
283/2020/OLE (CATEGORY NO.221/2017)
PUBLISHED BY THE 3RD RESPONDENT WITH
EFFECT FROM 14/10/2020 FOR THE POST OF
PROBATION OFFICER GRADE II.
ANNEXURE A2 TRUE COPY OF THE PROBATION OF OFFENDERS
ACT, 1958.
ANNEXURE A3 TRUE COPY OF THE KERALA PROBATION OF
OFFENDERS RULES, 1960.
ANNEXURE A4 TRUE COPY OF THE RELEVANT EXTRACT OF THE
GOVT. ORDER GO(P) 54/2010/SWD DATED
10/08/2010 & PUBLISHED IN THE GAZETTE
DATED 12/08/2010, FRAMING THE KERALA
SOCIAL WELFARE SUBORDINATE SERVICE
SPECIAL RULES.
ANNEXURE A5 TRUE COPY OF THE JUDGMENT OF THE HON'BLE
HIGH COURT OF KERALA DATED 25/02/2015 IN
O.P.(KAT) NO.80/2013.
ANNEXURE A6 TRUE COPY OF THE GOVT. ORDER G.O.(RT.)
NO.615/2019/SJD DATED 29/09/2019,
PROMOTING RESPONDENTS 5 TO 9.
JOIN TOGETHER MISCELLANEOUS APPLICATION FOR JOIN
TOGETHER.
ANNEXURE A7 TRUE PHOTOCOPY OF THE GOVERNMENT ORDER
G.O. (RT.) NO. 594/2021/SJD DATED
19.11.2020.
ANNEXURE A8 TRUE PHOTOCOPY OF THE CO0MMUNICATION NO.
270/A2/2022/ KSYC DATED 24.02.2022 ISSUED
BY THE KERALA STATE YOUTH COMMISSION
ADDRESSED TO THE 1ST RESPONDENT.
EXHIBIT P1 TRUE COPY OF THE O.A. (EKM.) NO. 72/2021
FILED BY THE PETITIONERS BEFORE THE KERALA
ADMINISTRATIVE TRIBUNAL, ERNAKULAM DATED
05.01.2021.
EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT FILED BY
THE 2ND RESPONDENT DATED 19.03.2022.
EXHIBIT P3 TRUE COPY OF THE M.A. (EKM.) NO. 533/2022
IN O.A. (EKM.) NO. 72/2021 FOR DIRECTION
O.P.(KAT).No.393/2023
-:17:-
FILED BY THE PETITIONERS DATED
12.03.2022.
EXHIBIT P4 TRUE COPY OF THE REJOINDER STATEMENT FILED
BY THE PETITIONERS DATED 03.06.2022.
EXHIBIT P5 TRUE COPY OF THE REPLY STATEMENT FILED BY
ADDITIONAL RESPONDENTS 4 AND 6 DATED
17.06.2022 IN O.A.(EKM.) NO. 72/2023.
EXHIBIT P6 TRUE COPY OF THE ORDER DATED 18.08.2023
IN O.A. (EKM.) NO. 72/2021 PASSED BY THE
HON'BLE KERALA ADMINISTRATIVE TRIBUNAL,
ERNAKULAM.