Kerala High Court
Suveen S.Kamath vs State Of Kerala on 11 April, 2014
Author: A.Hariprasad
Bench: Thottathil B.Radhakrishnan, A.Hariprasad
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN
&
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
FRIDAY, THE 11TH DAY OF APRIL 2014/21ST CHAITHRA, 1936
OP(KAT).No. 2369 of 2012 (Z)
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[AGAINST T.A.NO.1870/2012 OF THE KERALA ADMINISTRATIVE TRIBUNAL,
THIRUVANANTHAPURAM (W.P.(C).NO.3983 OF 2011]
..........
PETITIONER/APPLICANT:
------------------------------------
SUVEEN S.KAMATH.
GAYATHRI, T.D.SOUTH, C.M.C 27,
CHERTHALA, ALAPPUZHA.
BY ADV. SRI.P.C.SASIDHARAN.
RESPONDENTS/RESPONDENTS:
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1. STATE OF KERALA,
REPRESENTED BY ITS SECRETARY TO GOVERNMENT,
CO-OPERATION (C) DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM - 695 001.
2. THE REGISTRAR OF CO-OPERATIVE SOCIETIES,
OFFICE OF THE REGISTRAR OF CO-OPERATIVE SOCIETIES,
THIRUVANANTHAPURAM - 695 001.
BY SR.GOVERNMENT PLEADER SRI. NOBLE MATHEW.
THIS O.P KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN
FINALLY HEARD ON 20-02-2014, THE COURT ON 11-04-2014
DELIVERED THE FOLLOWING:
Prv.
O.P.(KAT).NO.2369/2012-Z:
APPENDIX
PETITIONER'S EXHIBITS:
EXT.P.1: TRUE COPY OF W.P.(C).NO.3983 OF 2011.
EXT.P.2: TRUE COPY OF COUNTER AFFIDAVIT FILED BY 2ND RESPONDENT.
EXT.P.3: TRUE COPY OF THE JUDGMENT OF THE HON'BLE KERALA
ADMINISTRATIVE TRIBUNAL IN T.A. NO.1870 OF 2012.
RESPONDENTS' EXHIBITS: NIL.
//TRUE COPY//
P.S. TO JUDGE.
Prv.
"CR"
Thottathil B.Radhakrishnan
&
A.Hariprasad, JJ.
= = = = = = = = = = = = = = = = = = = = = = = = OP(KAT).No.2369 of 2012 = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 11th day of April, 2014 Judgment Thottathil B.Radhakrishnan, J.
1.Petitioner challenges an order of the Kerala Administrative Tribunal.
2.Heard the learned counsel for the petitioner and the learned Senior Government Pleader.
3.In his pursuit for employment, petitioner applied for being considered to the post of Junior Inspector/Auditor in the Co-operative Department in the Government of Kerala in response to the relevant notification issued by the Kerala Public Service Commission, "PSC", OPKAT2369/12 -: 2 :- for short. He also made a separate application for being considered for appointment to the post of Clerk/Cashier in the District Co-operative Bank, Alappuzha, hereinafter, "DCB", by direct recruitment, in terms of a different notification issued by the PSC.
4.At the first instance, PSC advised for the appointment of the petitioner as Junior Inspector/Auditor. The Registrar of Co-operative Societies, for short, "RCS", issued Ext.P1 appointment order on 25.10.2008 and the petitioner joined in that post.
5.Petitioner was also included in the PSC's rank list for the post of Clerk/Cashier in the DCB. On 14.5.2010, PSC advised the DCB for petitioner's appointment to that post. DCB appointed him in that post on 11.6.2010. Petitioner was relieved from the Co-operative Department in Government at his instance on 12.7.2010 and he joined the DCB.
OPKAT2369/12 -: 3 :-
6.Thereafter, on 2.12.2010, the petitioner represented to the RCS seeking permission to rejoin the Co-operative Department as Junior Inspector/Auditor. In its nutshell, the claim of the petitioner was to rejoin duty in the Co- operative Department in Government in terms of Rule 8 of Part II of Kerala State and Subordinate Services Rules, for short, "KS&SSR". RCS rejected that request as per communication dated 7.1.2011. Challenging that, and praying for a direction to the respondents to allow him to rejoin in the Co-operative Department, the petitioner filed a writ petition before this Court. RCS filed counter affidavit to the writ petition, supporting the impugned decision and contending that Rule 8 cannot be pressed into service for the petitioner to come back from the DCB to a Department in Government because DCB is a co-operative society registered under the Kerala Co-operative Societies Act, 1969, hereinafter, "KCS Act" and service under it OPKAT2369/12 -: 4 :- cannot be treated as equivalent to Government service. The writ petition was transferred to the Tribunal on its constitution. Tribunal dismissed the transferred application holding that the petitioner is not entitled to invoke Rule 8. Hence this original petition.
7.It is argued on behalf of the petitioner that the expanse of Rule 8 and the amplitude of the field to which it applies has been narrowly construed by the RCS and the learned Tribunal ignoring the phrase "or for any other reason" in the opening paragraph of that Rule. It is further argued that the fourth proviso and Note I to Rule 8 of Part II of KS&SSR explaining as to what is "exigency of public service', show that the petitioner was statutorily entitled to come back to the Co-operative Department in Government with the support of that Rule. Reference was also made to the decision of the Supreme Court of India in Ali v. State of Kerala [2003(2) KLT 922] which, among other OPKAT2369/12 -: 5 :- things, dilated on the scope of the proviso and the utility of a proviso as a legislative tool.
8.On behalf of the State, the learned Senior Government Pleader, supporting the decision of the Tribunal and that of the RCS, argued that Rule 8 can be understood only in the manner in which the Tribunal has viewed it and the service in a co-operative society cannot be treated as service which was in exigency of public service.
9.Rule 8 of Part II KS&SSR reads as follows:
"8. Members absent from duty.-The absence of a member of a service from duty in such service, whether on leave, other than leave without allowances for taking up other employment on foreign service or on deputation or for any other reason and whether his lien in a post borne on the cadre of such service is suspended or not, shall not, if he is otherwise fit, render him ineligible in his turn-
OPKAT2369/12 -: 6 :-
(a)for re-appointment to a substantive or officiating vacancy in the class, category, grade or post in which he may be a probationer or an approved probationer;
(b)for promotion from a lower to a higher category in such service; and
(c)for appointment to any substantive or officiating vacancy in another service for which he may be an approved candidate;
as the case may be, in the same manner as if he has not been absent. He shall be entitled to all the privileges in respect of appointment, seniority, probation and appointment as full member which he would have enjoyed but for his absence:
Provided that subject to the provisions of rule 18 he shall satisfactorily complete the period of probation on his return; Provided further that a member of a service who is appointed to another service and is a probationer or an approved probationer in the latter service, shall not be appointed OPKAT2369/12 -: 7 :- under clause (c) to any other service for which he may be an approved candidate unless he relinquishes his membership in the latter service in which he is a probationer or an approved probationer:
Provided further that this rule shall not have retrospective effect so as to disturb the decisions taken by the Travancore-Cochin Government in respect of the Travancore- Cochin personnel:
Provided also that this rule shall not apply in the case of a member of a service whose absence from duty in such service is by reason of his appointment to another service, not being Military Service, solely on his own application, unless such appointment is made in the exigencies of public service.
Note.-(1) An appointment made in pursuance of applications invited, sponsored or recommended by Government or other competent authority shall be deemed to be an appointment made in the exigencies of Public Service for the purpose of this rule. (2) The benefit of this rule shall not be OPKAT2369/12 -: 8 :- available to a person holding a post in any class or category in a service if his appointment to that post was from a post in another class or category in the same service."
10.Tribunal took the view that the term "another service" in the fourth proviso to Rule 8 is service in the State Government, having regard to the definition of the term "service" in Rule 2(15) of Part I KS&SSR and that even if the service in DCB is to be presumed to be a service under the State, appointment in DCB cannot be treated as an appointment in exigency of public service. So holding, the Tribunal affirmed the view of the RCS that the petitioner, having been appointed to DCB, is not entitled to reappointment in the Co-operative Department in Government in terms of Rule 8 of Part II of KS&SSR.
11.Rule 8 of Part II of KS&SSR provides that the absence of a member of a service from duty in OPKAT2369/12 -: 9 :- such service, whether on leave, or on deputation or for any other reason shall not, if he is otherwise fit, render him ineligible, in his turn, for the different matters provided in that rule, as if he has not been absent. That provision does not depend upon whether his lien in a post borne on the cadre of such service is suspended or not. However, that rule will not apply where the absence of that member from duty in such service was on account of leave without allowances for taking up other employment on foreign service. The phrase "for any other reason" in Rule 8 is sufficient legislative material to hold that a member of a service, except one who had gone on leave without allowances for taking up other employment on foreign service, will be entitled to invoke Rule
8. The fourth proviso to that rule provides that the said rule shall not apply in the case of a member of a service whose absence from duty in such service is by reason of his appointment to another service, not being Military Service, OPKAT2369/12 -: 10 :- solely on his application, unless, such appointment is made in the exigencies of public service. Therefore, a member of a service whose absence from duty in such service is by reason of his appointment to Military Service will be eligible to invoke Rule 8. The question that immediately arises is as to what would be the meaning of the term "another service" occurring in the fourth proviso to Rule 8. When the phrase "not being Military Service" is included in that proviso to cull out an exception to the operation of that rule in contradistinction to the term "another service" occurring in that proviso, it has to be understood that for the purpose of that proviso, the term "another service" includes a service other than a State or a Subordinate Service in the State Government. If that were not so, the use of the term "not being Military Service" was not necessary. We converge on this interpretative conclusion because of the fact that the principal part of Rule 8 provides its OPKAT2369/12 -: 11 :- application to those who are absent from duty in a service even on deputation or for any other reason. "Military Service" is defined in Rule 2 (9A) of Part I to mean service in the Armed Forces under the Ministry of Defence, Government of India, whether as a combatant or a non- combatant, for a continuous period of not less than 6 months, but does not include service in para military forces, namely Assam Rifles, Defence Security Corps, General Reserve Engineer Force, Jammu and Kashmir Militia, Lok Sahayak Sena and Territorial Army. Such services which are grouped into the definition of the term "Military Service" can never form part of a State or a subordinate service under the State Government. They are entirely within the legislative and executive domain of the Union of India in terms of the distribution of legislative and executive powers in terms of the Constitution of India. Therefore, the use of phrase "not being Military Service" in the fourth proviso to Rule 8 cannot be treated as OPKAT2369/12 -: 12 :- creating an exemption or exception or carving out a distinction from the term "another service" which immediately precedes the use of the term "not being Military Service" except where the term "another service" in that proviso is intended to include a service other than a State or a Subordinate Service in the State Government. The term "service" is defined in Rule 2(15) of Part I KS&SSR to mean a group of persons classified by the State Government as a State or a Subordinate Service, as the case may be. If that definition is imported to the term "another service" in the fourth proviso to Rule 8, definitely, Military Service should also fall within that term since, otherwise, Military Service is excluded from the term "another service" occurring in that proviso. Therefore, unless the term "another service" occurring in the fourth proviso can also take within its sweep the term "Military Service", the rule cannot be operated if the word "service" in the term "another service" in that proviso was to be OPKAT2369/12 -: 13 :- applied on the basis of the definition of the word "service" in Rule 2(15) of Part I KS&SSR. Therefore, the word "service" in the phrase "by reason of his appointment in another service"
immediately preceding the phrase "not being Military Service" in the fourth proviso to Rule 8 is one to which the definition of "service" as contained in Section 2(15) of Part I KS&SSR cannot be applied in the subject or context. The application of that definition clause to the fourth proviso to Rule 8 would be repugnant to the context in consideration.
12.Rule 2 of Part I KS&SSR opens by saying that the definitions provided in that rule would apply "unless there is anything repugnant in the subject or context". Even in the absence of an express qualification to that effect, such a qualification is always implied. Repugnancy of a definition arises when the definition does not agree with the subject or context. When the application of the definition to a term in a OPKAT2369/12 -: 14 :- provision containing that term makes it unworkable, the definition becomes inapplicable to that provision because of the contrary context. See the erudite classic text:
Principles of Statutory Interpretation by Justice G.P.Singh, 13th Edition (2012) and the precedents referred to therein, particularly Vanguard Fire and General Insurance Co. Ltd., Madras v. Fraser & Ross [AIR 1960 SC 971], Knightsbridge Estates Trust Ltd. v. Byrne [(1940) AC 613], State Bank of India v. Yogendra Kumar Srivastava [(1987) 3 SCC 10], Special Officer and Competent Authority Urban Land Ceilings Hyderabad v. P.S.Rao [(2000) 2 SCC 451]. It is well settled that all statutory definitions or abbreviations must be read subject to the qualification variously expressed in the definition clauses which created them and it may be that even where the definition is exhaustive inasmuch as the word defined is said to mean a certain thing, it is possible for the word to have a somewhat different meaning in OPKAT2369/12 -: 15 :- different sections of the Act depending upon the subject or context. That is why all definitions in statutes generally begin with the qualifying words, 'unless there is anything repugnant in the subject or context'. The meaning to be ordinarily given to a term which has been defined in a particular legislation is that given in the definition clause. But this is not inflexible and there may be sections in that legislation where the meaning may have to be departed from on account of the subject or context in which the word had been used and that will be giving effect to the opening sentence in the definition section, namely 'unless there is anything repugnant in the subject or context'. In view of that qualification in the definition clause, the Court has not only to look at the words but also to look at the context, the collocation and the object of such words relating to such matter and interpret the meaning intended to be conveyed by the use of the words under the circumstances - See OPKAT2369/12 -: 16 :- Vanguard Fire and General Insurance Co. Ltd., Madras (supra) followed in Whirlpool Corporation v. Registrar of Trade Marks [(1998) 8 SCC 1]. The aforesaid position was considered in Sales Tax Commr., Gujarat v. Union Medical Agency (AIR 1981 SC 1), in para. 14 whereof, the Apex Court reiterated and laid down well settled principle that when a word or phrase has been defined in the interpretation clause, prima facie, that definition governs whenever that word or phrase is used in the body of the statute, but, where the context makes the definition clause inapplicable, a defined word, when used in the body of the statute may have to be given a meaning different from that contained in the interpretation clause and it has to be differently construed and applied. This is why all definitions given in an interpretation clause are, therefore, normally enacted subject to the usual qualification "unless there is anything repugnant in the subject or context" or "unless the context otherwise requires". Even in OPKAT2369/12 -: 17 :- the absence of an express qualification to that effect, such a qualification is always implied.
Though we have stated earlier that this is the law, we reiterate it, in view of the profuse support for this proposition by judicial precedents, that too, by the Hon'ble Supreme Court, which amount to law laid in terms of Article 141 of the Constitution of India.
13.The language of a proviso is to be construed in relation to the subject-matter covered by the section to which the proviso is appended. While a proviso does not travel beyond the provision to which it is a proviso, and, is intended to carve out an exception to the main provision to which it has been enacted as a proviso, the operation of a proviso has to be clearly deciphered for the application of that proviso, because the normal function of a proviso is to except something out of the main provision to which that proviso is made, or to qualify something enacted therein which, but for the OPKAT2369/12 -: 18 :- proviso, would be within the purview of the enactment - See for support Dwarka Prasad v. Dwarka Das Saraf [AIR 1975 SC 1758], Mackinnon Mackenzie & Co. Ltd. v. Audrey D'Costa [(1987) 2 SCC 469], Ram Narain Sons Ltd. v. Assistant Commissioner of Sales Tax [AIR 1955 SC 765] and Kedarnath Jute Manufacturing Co. Ltd. v. Commercial Tax Officer [AIR 1966 SC 12].
14.In the context and the setting in which the fourth proviso to Rule 8 is made, the term "another service, not being Military Service"
definitely takes within its sweep, services other than the State or a Subordinate Service in the State Government, except those members of a State or a Subordinate Service in the State Government who were absent from duty on leave without allowances for taking up other employment on foreign service. It will definitely take in those who are absent from the Service or a Subordinate Service in the State Government for any reason other than those OPKAT2369/12 -: 19 :- specifically excluded in the opening paragraph of Rule 8 of Part II KS&SSR.
15.The next issue is as to whether appointment of the petitioner to the DCB is an appointment made in the exigencies of public service. Note I to Rule 8 provides that an appointment made in pursuance of applications invited, sponsored or recommended by Government or other competent authority shall be deemed to be an appointment made in the exigencies of public service. It is a deeming provision. If the factors enjoined as per that Note are satisfied, the legislative compulsion is that it shall be deemed to be an appointment made in the exigencies of public service for the purpose of Rule 8. The purpose of that legal fiction is to bring such appointees as would fall under Note I also into the field of operation of Rule 8 of Part II KS&SSR thereby extending to them the benefit of the eligibility in terms of that rule. Having thus ascertained the purpose of that deeming OPKAT2369/12 -: 20 :- provision, the court has to apply that legal fiction. It is well settled that when a state of affairs is legislatively ordained to be deemed, that shall be so done and such fictional status shall pervade unconditionally and freely within the domain to which such presumptive status applies. See for support - State of Bombay v. Pandurang Vinayak [AIR 1953 SC 244], American Home Products Corporation v. Mac Laboratories [AIR 1986 SC 137], P.E.K.Kalliani Amma v. K.Devi [AIR 1996 SC 1963], Mundri Lal v. Sushila Rani [(2007) 8 SCC 609], Rajendraswami v. Commissioner of Hindu Religious and Charitable Endowments, Hyderabad [AIR 1965 SC 502] and Manorey Alias Manohar v. Board of Revenue (U.P.) [(2003) 5 SCC 521], following the oft-quoted words of Lord Asquith in East End Dwelling Co. Ltd. v. Finsbury Borough Council [1952 AC 109 (HL)] that "if you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also image as real the consequence and OPKAT2369/12 -: 21 :- incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it-. The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs." Therefore, if an appointment is made in pursuance of applications invited by "other competent authority", that is sufficient foundation to operate the deeming provision contained in that Note. PSC is the competent authority in terms of the provisions of the Kerala Co-operative Societies Act and the rules thereunder to invite applications for appointments to the Clerk/Cashier in the DCB. The appointment of the petitioner in the DCB is pursuant to the applications invited by the PSC which is the competent authority to invite such applications. If that were so, the rigour of the fiction created by the legislative rule enjoins OPKAT2369/12 -: 22 :- the petitioner's appointment in DCB as one made in exigencies of public service. That legal effect cannot be whittled down by any reasoning process depending upon whether the resultant situation of a person returning to the State Government service would amount to deprivation of rights or expectations of any other person.
16.Hence, the service in the DCB falls within the term "another service" in the fourth proviso to Rule 8 and the appointment of the petitioner in the DCB pursuant to the applications invited by the PSC shall be deemed to be an appointment made in the exigencies of public service for the purpose of Rule 8 of Part II of KS&SSR.
17.For the aforesaid reasons, the findings of the learned Tribunal, contrary to the above, are not in consonance with the provisions of Rule 8 of Part II of KS&SSR, including its fourth proviso and Note I to that rule. The decision of the RCS affirmed by the learned Tribunal is also not OPKAT2369/12 -: 23 :- sustainable. Hence, the impugned order of the Tribunal and the decision of the RCS impugned before the Tribunal are liable to be set aside and the petitioner is entitled to the relief that he had sought for in the writ petition that was transferred to the Tribunal.
In the result, this original petition is allowed quashing the order of the Kerala Administrative Tribunal in T.A.No.1870 of 2012 and the decision contained in the communication dated 7.1.2011 issued by the RCS, impugned in the transferred application before the Tribunal. It is declared that the petitioner is entitled to re- appointment as Junior Inspector/Auditor in the Co-operative Department in the Government and all other matters as enjoined by Rule 8 by treating him as eligible in his turn, if he is otherwise fit. The RCS is directed to reconsider the case of the petitioner in the light of what is aforesaid and the declarations contained herein and issue a decision on the petitioner's OPKAT2369/12 -: 24 :- request on his representation dated 2.12.2010 which was Ext.P7 in WP(C).No.3983 of 2011 of this Court (T.A.No.1870 of 2012 of the Kerala Administrative Tribunal), within an outer limit of 45 days from the date of receipt of a copy of this judgment, without fail. The petitioner is directed to mark appearance in the Office of the RCS on 28.4.2014.
Sd/-
Thottathil B.Radhakrishnan Judge Sd/-
A.Hariprasad Judge Sha/
-true copy-
PS to Judge