Citation : 2024 Latest Caselaw 26473 Ker
Judgement Date : 5 September, 2024
2024:KER:67984
"C.R."
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
THURSDAY, THE 5TH DAY OF SEPTEMBER 2024 / 14TH BHADRA, 1946
O.P.(KAT) NO. 280 OF 2024
AGAINST THE ORDER DATED 12.06.2024 IN OA NO.1192 OF 2023
OF THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM
PETITIONER/ADDL.3RD RESPONDENT:
ASWATHY K.R,
AGED 35 YEARS
W/O SHIJU C.S., RESIDING AT CHERUKARA HOUSE,
PATTANAM, VADAKKEKARA P.O., NORTH PARAVUR,
ERNAKULAM DISTRICT, PIN - 683522.
BY ADVS.
S.P.ARAVINDAKSHAN PILLAY
N.SANTHA
V.VARGHESE
PETER JOSE CHRISTO
S.A.ANAND
K.N.REMYA
L.ANNAPOORNA
2024:KER:67984
2
O.P.(KAT) Nos.280 and 309 of 2024
RESPONDENTS/APPLICANT AND RESPONDENTS 1 & 2:
1 RAHEENA C, W/O ASHARAF K.V.,
WORKING AS CLERK, DIRECTORATE OF GROUND WATER,
GROUND WATER DEPARTMENT, JALAVIJNANA
BHAVAN,AMBALAMUKKU, THIRUVANANTHAPURAM,
RESIDING AT KRA-38 A, MATHRAVILA, KOWDIAR P.O,
THIRUVANANTHAPURAM, PIN - 695003.
2 STATE OF KERALA,
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
WATER RESOURCES DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001
3 DIRECTOR,
GROUND WATER DEPARTMENT, DIRECTORATE OF GROUND
WATER DEPARTMENT, JALAVIGNANA BHAVAN,
AMBALAMUKKU, KOWDIYAR P.O., THIRUVANANTHAPURAM,
PIN - 695003.
R1 BY ADVS.
FIROZ K.M.
M.SHAJNA
R2 & R3 BY SRI. B. UNNIKRISHNA KAIMAL, SR. GP
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING
COME UP FOR FINAL HEARING ON 19.08.2024, ALONG WITH
OP(KAT).309/2024, THE COURT ON 05.09.2024 DELIVERED
THE FOLLOWING:
2024:KER:67984
3
O.P.(KAT) Nos.280 and 309 of 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
THURSDAY, THE 5TH DAY OF SEPTEMBER 2024 / 14TH BHADRA, 1946
OP.(KAT) NO. 309 OF 2024
AGAINST THE ORDER DATED 12.06.2024 IN OA NO.1408 OF 2023
OF THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM
PETITIONER/NOT PARTY TO THE OA:
ASWATHY K.R
AGED 36 YEARS
W/O SHIJU C.S., RESIDING AT CHERUKARA HOUSE,
PATTANAM, VADAKKEKARA P.O., NORTH PARAVUR,
ERNAKULAM DISTRICT, PIN - 683522.
BY ADVS.
S.P.ARAVINDAKSHAN PILLAY
N.SANTHA
V.VARGHESE
PETER JOSE CHRISTO
S.A.ANAND
K.N.REMYA
L.ANNAPOORNA
RESPONDENTS/APPLICANT AND RESPONDENTS 1 & 2:
1 SAJITHA G.S.,
D/O K.SOMAN, SENIOR CLERK, DIRECTORATE OF
GROUND WATER DEPARTMENT, JALAVIJNANA BHAVAN,
AMBALAMUKKU, KOWDIAR P.O. THIRUVANANTHAPURAM,
PIN-695 003, RESIDING AT TC 22/225, VAYAL
VEEDU, ATTUKAL, MANACAUD P.O.,
THIRUVANANTHAPURAM, PIN - 695009.
2024:KER:67984
4
O.P.(KAT) Nos.280 and 309 of 2024
2 STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
WATER RESOURCES DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001.
3 DIRECTOR, GROUND WATER DEPARTMENT,
DIRECTORATE OF GROUND WATER DEPARTMENT,
JALAVIGNANA BHAVAN, AMBALAMUKKU, KOWDIYAR P.O.,
THIRUVANANTHAPURAM, PIN - 695003.
R1 BY ADVS.
ABHILASH K.N.
SUNIL NAIR PALAKKAT
RITHIK S.ANAND
RISHI VARMA T.R.
K.M.TINTU
ANU PAUL
R2 & R3 BY SRI. B. UNNIKRISHNA KAIMAL, SR. GP
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING
COME UP FOR FINAL HEARING ON 19.08.2024, ALONG WITH
OP(KAT).280/2024, THE COURT ON 05.09.2024 DELIVERED
THE FOLLOWING:
2024:KER:67984
5
O.P.(KAT) Nos.280 and 309 of 2024
"C.R."
ANIL K. NARENDRAN & P.G. AJITHKUMAR, JJ.
-----------------------------------------------------------
O.P.(KAT) Nos.280 and 309 of 2024
-----------------------------------------------------------
Dated this the 5th day of September, 2024
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 2024:KER:67984
O.P.(KAT) Nos.280 and 309 of 2024
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.
2024:KER:67984
O.P.(KAT) Nos.280 and 309 of 2024
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 (i) Appointment by transfer (i) B.Sc.Degree in Chemistry;
Assistant from the Departmental and
hands (Clerical staff) with
Two years service in the
the prescribed qualifications (ii) Department.
according to seniority in the Department.
(ii) In the absence of qualified (i) Master's Degree in Chemistry/ hands under item (i) above, Agricultural Chemistry with by direct recruitment. 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;
2024:KER:67984
O.P.(KAT) Nos.280 and 309 of 2024
(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.
2024:KER:67984
O.P.(KAT) Nos.280 and 309 of 2024
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. 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 2024:KER:67984
O.P.(KAT) Nos.280 and 309 of 2024
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.
2024:KER:67984
O.P.(KAT) Nos.280 and 309 of 2024
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. 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 2024:KER:67984
O.P.(KAT) Nos.280 and 309 of 2024
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 2024:KER:67984
O.P.(KAT) Nos.280 and 309 of 2024
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 8 th 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.
2024:KER:67984
O.P.(KAT) Nos.280 and 309 of 2024
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 2024:KER:67984
O.P.(KAT) Nos.280 and 309 of 2024
impugned orders do not require any interference. The original
petitions are therefore dismissed.
Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/-
P.G. AJITHKUMAR, JUDGE dkr 2024:KER:67984
O.P.(KAT) Nos.280 and 309 of 2024
APPENDIX OF OP(KAT) 280/2024
PETITIONER ANNEXURES
ANNEXURE -A1 TRUE COPY OF THE ORDER NO.E(1)/ 4462/2014/DGW DATED 09.04.2021 OF THE 2ND RESPONDENT.
ANNEXURE -A2 TRUE COPY OF THE ORDER NO.E(1)/ 7057/2021/DGW DATED 29.12.2021 OF THE 2ND RESPONDENT.
ANNEXURE -A3 TRUE COPY OF THE ORDER NO.DGWD/1123/2023-E1 DATED 26.04.2023 OF THE 2ND RESPONDENT.
ANNEXURE -A4 TRUE COPY OF THE RELEVANT PAGES OF G.O.(P)NO.33/93/IR.D DATED 30.07.1993.
ANNEXURE -A5 TRUE COPY OF THE DEGREE CERTIFICATE DATED 09.01.2003 FROM THE UNIVERSITY OF CALICUT.
ANNEXURE -A6 TRUE COPY OF THE CERTIFICATE NO.206605/GAIV-J2/2022/ADMN DATED 01.04.2023 FROM THE UNIVERSITY OF CALICUT.
ANNEXURE -A7 TRUE COPY OF THE SUBMISSION DATED 05.05.2023 OF THE APPLICANT TO THE 2ND RESPONDENT.
ANNEXURE -A8 TRUE COPY OF THE ORDER NO.DGWD/ 151/2022-E1 DATED 12.06.2023 OF THE 2ND RESPONDENT.
ANNEXURE -A9 TRUE COPY OF THE REPRESENTATION DATED 15.06.2023 OF THE APPLICANT TO THE 2ND RESPONDENT.
2024:KER:67984
O.P.(KAT) Nos.280 and 309 of 2024
ANNEXURE -A10 TRUE COPY OF THE JUDGMENT DATED 13.03.2009 IN WP(C) NO.30667/2005 & 4193/2007 OF THE HON'BLE HIGH COURT OF KERALA.
ANNEXURE -A11 TRUE COPY OF CIRCULAR NO.DGWD/1594/2024-E1 DATED 04.07.2023 OF THE 2ND RESPONDENT DIRECTOR OF GROUND WATER.
ANNEXURE -A12 TRUE COPY OF G.O.(RT) NO.949/2019/HEDN DATED 13.06.2009.
ANNEXURE R3(A) TRUE COPY OF THE RELEVANT EXTRACT OF THE NOTIFICATION DATED 30.12.2016 IN CATEGORY NO.440/2016 ISSUED BY THE KPSC.
ANNEXURE R3(B) TRUE COPY OF THE M.SC DEGREE CERTIFICATE IN APPLIED CHEMISTRY FROM CALICUT UNIVERSITY IN THE YEAR 2010.
ANNEXURE R3(C) TRUE COPY OF THE MARK LIST OF MSC.
DEGREE EXAMINATION ISSUED BY THE CONTROLLER OF EXAMINATIONS, UNIVERSITY OF CALICUT ALONG WITH CERTIFICATE NO.150124/PG-VI-ASST-II/2019/PB DATED 04.04.2019 ISSUED BY THE DEPUTY REGISTRAR, UNIVERSITY OF CALICUT.
ANNEXURE-R3(D) TRUE COPY OF THE CERTIFICATE DATED 18.12.2012 OF MSC. APPLIED CHEMISTRY ISSUED BY THE REGISTRAR, UNIVERSITY OF CALICUT.
ANNEXURE R3(E) TRUE COPY OF G.O.(MS)NO.317/2017/HEDN.
DATED 27.12.2017.
ANNEXURE R3(F) TRUE COPY OF THE RANKED LIST NO.68/2021/SS/ VI PUBLISHED BY THE KPSC FOR THE POST OF CHEMICAL ASSISTANT.
2024:KER:67984
O.P.(KAT) Nos.280 and 309 of 2024
ANNEXURE R3(G) TRUE COPY OF THE LETTER NO.DGWD/1680/2023-T1 DATED 14.08.2023 OF THE STATE PUBLIC INFORMATION OFFICER IN THE OFFICE OF THE 2ND RESPONDENT.
ANNEXURE R3(H) TRUE COPY OF THE CIRCULAR NO.DGWD/1594/2023-E1 DATED 04.07.2023 OF THE 2ND RESPONDENT.
ANNEXURE R2(A) TRUE COPY OF THE RELEVANT PAGES OF SPECIAL RULE G.O.(P) NO.33/93/IR.D DATED 30.07.1993.
ANNEXURE -A13 TRUE COPY OF THE CIRCULAR NO.E(1)-
2055/2013/DGW DATED 05.072022 OF THE 2ND RESPONDENT.
ANNEXURE A14 TRUE COPY OF LETTER NO.DGWD/149/2023- E3 DATED 20.09.2023 OF THE 2ND RESPONDENT.
EXHIBIT -P1 TRUE COPY OF O.A.NO.1192/2023 FILED BEFORE THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM.
EXHIBIT -P2 TRUE COPY OF M.A.NO.1365/2023 IN O.A.NO.1192/2023 FILED UNDER RULE 7(3) OF THE KERALA ADMINISTRATIVE TRIBUNAL (PROCEDURE) RULES 2010, FOR ACCEPTING ADDITIONAL DOCUMENTS.
EXHIBIT P3 TRUE COPY OF THE REPLY STATEMENT OF
THE ADDL.3RD RESPONDENT IN
O.A.1192/2023 OF THE HON'BLE KERALA ADMINISTRATIVE TRIBUNAL.
EXHIBIT P4 TRUE COPY OF THE STATEMENT FILED ON BEHALF OF THE SECOND RESPONDENT IN O.A.1192/2023 OF THE HON'BLE KAT.
2024:KER:67984
O.P.(KAT) Nos.280 and 309 of 2024
EXHIBIT P5 TRUE COPY OF THE REJOINDER FILED BY THE APPLICANT TO THE REPLY STATEMENT OF THE ADDITIONAL 3RD RESPONDENT IN O.A.1192/2023 OF THE HON'BLE KAT.
EXHIBIT P6 TRUE COPY OF THE REJOINDER FILED BY THE APPLICANT TO THE REPLY STATEMENT OF THE 2ND RESPONDENT IN O.A.1192/2023 OF THE HON'BLE KAT.
EXHIBIT P7 TRUE COPY OF THE MISCELLANEOUS APPLICATION IN O.A.NO.1192/2023 FILED UNDER RULE 7(3) OF THE KERALA ADMINISTRATIVE TRIBUNAL (PROCEDURE) RULES 2010, FOR ACCEPTING ADDITIONAL DOCUMENTS.
EXHIBIT P8 TRUE COPY OF THE FINAL ORDER DATED 12.06.2024 IN O.A.1192/2023 OF THE KERALA ADMINISTRATIVE TRIBUNAL.
2024:KER:67984
O.P.(KAT) Nos.280 and 309 of 2024
APPENDIX OF OP(KAT) 309/2024
PETITIONER ANNEXURES
ANNEXURE -A1 TRUE COPY OF THE ORDER NO.E1/6138/16/DGW DATED 05.10.2016.
ANNEXURE -A2 TRUE COPY OF THE ORDER NO.E(1)-
6138/2016/DGW DATED 05.01.2019.
ANNEXURE -A3 TRUE COPY OF NO.E(1)-8274/2019/DGW DATED 21.12.2019.
ANNEXURE -A4 TRUE COPY OF THE NO.E(1)-4361/2022/DGW DATED 03.10.2022.
ANNEXURE -A5 TRUE COPY OF THE RELEVANT PAGES OF G.O.(P)NO.32/93/IR.D DATED 30.07.1993.
ANNEXURE -A6 TRUE COPY OF THE APPLICANT'S DEGREE CERTIFICATE.
ANNEXURE -A7 TRUE COPY OF ORDER NO.DGWD/151/2022-E1 DATED 12.06.2023.
ANNEXURE -A8 TRUE COPY OF REPRESENTATION GIVEN TO THE 2ND RESPONDENT DATED 06.07.2023.
EXHIBIT -P1 TRUE COPY OF O.A.NO.1408/2023 FILED BEFORE THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM.
EXHIBIT -P2 TRUE COPY OF THE REPLY STATEMENT DATED 23.11.2023 FILED BY THE 2ND RESPONDENT IN O.A.1408/2023 OF THE HON'BLE KERALA ADMINISTRATIVE TRIBUNAL.
EXHIBIT -P3 TRUE COPY OF THE FINAL ORDER DATED 12.06.2024 IN O.A.NOS.1192 OF 2023 AND 1408 OF 2024 OF THE KERALA ADMINISTRATIVE TRIBUNAL.
2024:KER:67984
O.P.(KAT) Nos.280 and 309 of 2024
EXHIBIT -P4 TRUE COPY OF THE ADVICE MEMO
NO.RIC(3)10107/2015/GW DATED
24.06.2024 ISSUED BY THE PSC.
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