IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH MONDAY, THE 2ND JULY 2007 / 11TH ASHADHA 1929 WP(C).No. 28205 of 2006(R) ---------------------------------------- PETITIONERS: ---------------------- 1. T.V. MEERANKHAN, SENIOR SUPERINTENDENT, DISTRICT COURT, THODUPUZHA. 2. K.M. ABDUL KAREEM, JUNIOR SUPERINTENDENT, MUNSIFF COURT, PEERUMEDU. BY ADV. SRI.K.JAJU BABU SMT.M.U.VIJAYALAKSHMI SRI.BRIJESH MOHAN SRI.T.R.SATHEESAN SMT.DHANYA CHANDRAN RESPONDENTS: ----------------------- 1. STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNMENT, HOME DEPARTMENT, GOVT.SECRETARIAT, TRIVANDRUM. 2. HIGH COURT OF KERALA, REPRESENTED BY ITS REGISTRAR(SUBORDINATE JUDICIARY) ERNAKULAM. *ADDL.R3 & R4 ARE IMPLEADED: R3. T.K.KUTTAN, SENINOR SUPERINTENDENT, DISTRICT COURT, THRISSUR. ...2/- ....2.... WPC.NO.28205/2006 R R4. V.J.ALEXANDER, JUNIOR SUPERINTENDENT, SUB COURT, SULTHAN BATHERY. (*ADDL.R3 & R4 ARE IMPLEADED AS PER ORDER DTD. 1/12/2006 IN I.A.NO.16123/06) **ADDL.R5 TO R11 ARE IMPLEADED: R5. P.V.SHAMSUDDIN, S/O.LATE PAREETH, BEERAVU, AGED 51, SENIOR SUPERINTENDENT, ADDITIONAL DISTRICT COURT, NORTH PARUR. R6. P.K.UNNI, JUNIOR SUPERINTENDENT, DISTRICT COURT, ERNAKULAM. R7. T.J.VIJAYALAKSHMI, JUNIOR SUPERINTENDENT, SUB COURT, ERNAKULAM. R8. P.J.MARGRET, JUNIOR SUPERINTENDENT, SUB COURT, ERNAKULAM. R9. K.C.SANTHAKUMARI, JUNIOR SUPERINTENDENT, MUNSIFF'S COURT, KOCHI, ERNAKULAM. R10. K.RAJAN, JUNIOR SUPERINTENDENT, MUNSIFF'S COURT, PERUMBAVOOR, ERNAKULAM. ....3/- ....3.... WPC.NO.28205/2006 R R11. M.N.SARASAMMA, JUNIOR SUPERINTENDENT, MACT, ERNAKULAM. (**ADDL.R5 TO R11 ARE IMPLEADED AS PER ORDER DTD. 5/03/2007 IN I.A.NO.3056/07) BY ADV. SRI.O.V.RADHAKRISHNAN (SR.) SMT.K.RADHAMANI AMMA SRI.ANTONY MUKKATH SRI.K.V.JOY SRI.K.RAMACHANDRAN (THYKOODAM) SRI.V.K.PRAVEEN SRI.S.SREEKUMAR BY GOVERNMENT PLEADER SRI.T.T.MUHAMMED for R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/03/2007 ALONG WITH WPC.NO.2557 OF 2007, THE COURT ON 2/07/2007 DELIVERED THE FOLLOWING: WPC.NO.28205/2006 R APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF ORDER NO.B1-117/06 DTD. 7/02/06 ISSUED BY THE 2ND RESPONDENT. EXT.P2: COPY OF ORDER NO.C1/26/2006 DTD. 10/02/06 ISSUED BY THE DISTRICT COURT, THODUPUZHA. EXT.P3: COPY OF ORDER NO.C1-27/2006 DTD. 10/02/06 ISSUED BY THE DISTRICT COURT, THODUPUZHA. EXT.P4: COPY OF G.O.(P) NO.11/06/HOME DTD. 21/01/06 ISSUED BY THE 1ST RESPONDENT. EXT.P5: COPY OF RELEVANT EXTRACT OF DRAFT SENIORITY LIST ALONG WITH COVERING LETTER NO.C3-23597/2006 DTD. 4/08/06 ISSUED BY THE 2ND RESPONDENT. EXT.P6: COPY OF SHOW CAUSE NOTICE NO.C3-23597/2006 DTD. 4/08/06 ISSUED BY THE 2ND RESPONDENT. EXT.P7: COPY OF OBJECTION SUBMITTED BY THE 1ST PETITIONER BEFORE THE 2ND RESPONDENT DTD. NIL. EXT.P8: COPY OF OBJECTION SUBMITTED BY THE 2ND PETITIONER BEFORE THE 2ND RESPONDENT THROUGH PROPER CHANNEL pm 31/08/06. EXT.P9: COPY OF OBJECTION SUBMITTED BY THE 1ST PETITIONER BEFORE THE 2ND RESPONDENT DTD. 25/08/06. EXT.P10: COPY OF DRAFT SENIORITY LIST OF SENIOR SUPERINTENDENTS AS ON 1/07/06 PUBLISHED BY 2ND RESPONDENT DTD. 29/08/06 VIDE NO.BL-47108/06. EXT.P11: COPY OF ORDER NO.B1-66122/2006 DTD. 28/09/06 ISSUED BY THE 2ND RESPONDENT. EXT.P12: COPY OF THE PROCEEDINGS ORDER NO.C3-23597/2006 DTD. 3/01/2007 ISSUED BY THE 2ND RESPONDENT ALONG WITH SENIORITY LIST. /TRUE COPY/ Kss K. M. JOSEPH, J. -------------------------------------- W.P.C. NOS.28205/06 R & 2557/07R -------------------------------------- Dated this the 2nd July, 2007 JUDGMENT These Writ Petitions being connected, they are disposed of by a common Judgment. 2. Petitioner in W.P.(C) No.2557/07 entered service as a Lower Division Clerk in the Civil Judicial Ministerial Service in the year 1984. Later, she was promoted as U.D. Clerk in the year 1987 and still further as Head Clerk by Order dated 6.3.1998 of the District Judge, Pathanamthitta. By Ext.P1 order dated 16.12.2002, petitioner was promoted as Junior Superintendent. She joined duty as Junior Superintendent on 21.12.2002. Ext.P2 dated 7.2.2006 is issued by the High Court promoting one Shri C.D. Joy, Senior Superintendent as Sheristadar, thus leading to a vacancy in the cadre of Senior Superintendent. Ext.P3 dated 13.2.2006 evidences promotion of the petitioner as Senior Superintendent. The Rules in force at WP(C) 28205/06 & 2557/07 2 the time of issuance of Ext.P3 order provided that the District be the Unit for purpose of promotion to the post of Senior Superintendent. However, an amendment was effected by Ext.P4 order altering the Unit for the purpose of promotion from the District to the State. Ext.P4 Government Order is dated 21.1.2006, but it is published in the Gazette on 21.2.2006. Petitioner came to be served with Ext.P5 Show Cause Notice. It is, inter alia, stated that promotion to the post of Senior Superintendent after 21.1.2006 was to be made by the High Court based on the State Level Seniority of Junior Superintendents in the Civil Wing including Head Clerks of MACT and Head Clerks of Munsiff-Magistrate Courts (Civil Wing). Petitioner along with three others promoted by District Judges were called upon by the High Court to show cause why their promotion should not be cancelled and they should not be reverted to the category of Junior Superintendent in view of the WP(C) 28205/06 & 2557/07 3 new Rules. Petitioner submitted Ext.P6 reply. By Ext.P7 Office Memorandum, a draft seniority list of Senior Superintendents of District Courts/Additional District Courts/Special Courts was circulated. Ext.P7(a) is the draft seniority list. Petitioner is shown at the correct serial number, it is stated, but it is stated to be provisional till the matter is decided. Ext.P9(a) is the relevant extract of the final seniority list of Junior Superintendents in the Civil Wing including Head Clerks of Motor Accidents Claims Tribunals and Head Clerks of Munsiff- Magistrate Courts. In the same, petitioner is included at Sl. No.17. If Exts.P9 and P9(a) are allowed to stand, it is pointed out that the petitioner will not be entitled to promotion as Senior Superintendent with effect from 13.2.2006. It is the case of the petitioner that preparation of a State Level final seniority list of Junior Superintendents as on 21.1.2006 was unjustified as though Ext.P4 was issued on 21.1.2006, it was published in the Kerala Gazette dated 21.2.2006 and it came into force only on 21.2.2006. Petitioner challenges Exts.P5, P9 and P9(a) WP(C) 28205/06 & 2557/07 4 to the extent that Ext.P5 was issued and Exts.P9 and P9(a) are prepared taking 21.1.2006 as the crucial date on the erroneous assumption that Ext.P4 came into force on that day and seeks a writ of certiorari to quash them and also seeks a declaration that Ext.P4 Rules came into force only on 21.2.2006. The further prayer sought is for a direction to the second respondent not to interfere with the promotion of the petitioner. The last prayer sought is to command the second respondent to give promotion to the petitioner as Senior Superintendent with retrospective effect from the date of occurrence of vacancy with all consequential benefits. The last prayer is apparently based on the case that one Shri C.D. Joy was promoted against a vacancy of Sheristadar which arose in November, 2005. When the vacancy arose in November, 2005, though there was a seniority dispute between Shri C.D. Joy and one Shri Andrew Thomas, it is contended that one would be entitled to be promoted in November, 2005. 3. Petitioners in W.P.(C) No.28205/06 have essentially WP(C) 28205/06 & 2557/07 5 the same complaint, namely that the Amended Special Rules are sought to be applied from a date earlier than the date of publication of the Rules in the Gazette. Therein, by Ext.P1 dated 7.2.2006, the High Court promoted one Thomas as Sheristadar. By Ext.P2 order dated 10.2.2006, the first petitioner was promoted as Senior Superintendent against a vacancy which arose on the promotion of Shri Thomas vide Ext.P1. By Ext.P3 dated 10.2.2006, the second petitioner was promoted as Junior Superintendent in the vacancy of the first petitioner. It is their case that the vacancy of Sheristadar is available from 1.11.2005. To the draft seniority list of Junior Superintendents, petitioners have preferred objection. Ext.P11 order is issued proceeding on the basis that the amendment to the Rules in question is to be effective from the date of the notification, and not from the date of its publication. 4. A Counter Affidavit is filed on behalf of the second respondent in both the cases, taking up the contention that there is no merit in either of the complaints of the petitioners. It is the WP(C) 28205/06 & 2557/07 6 case of the second respondent that the Rules came into force on 21.1.2006 and further that there is no merit in the complaint of the petitioners that if the vacancies had been filled up earlier, they would have entitled to be appointed much earlier. 5. The first question to be decided is when Ext.P4 came into force. Sub-rule (2) of Rule 1 of Ext.P4 Rules reads as follows: “(2) The Rules relating to categories 3 and 5 shall be deemed to have come into force on the 16th day of September, 1985, the Rules relating to category 1 shall be deemed to have come into force on the 1st day of July, 1988 and the Rules relating to other categories shall come into force at once.” I am, in these cases, not concerned with either Category 1, 3 or 5. Therefore, the relevant portion in sub-rule (2) with which I am concerned is the following “The Rules relating to the other categories shall come into force at once”. The Rules are seen dated 21.1.2006. They are published in the Gazette only on 21.2.2006. The question for consideration is whether it could be WP(C) 28205/06 & 2557/07 7 said that the Rules have come into force only on the date of publication in the Gazette or on the date on which they are seen to have been made. Counsel for the parties relied on the following decisions: 1) C.R. Jose and Others v. The Board of Revenue and Others (1986 (2) ILR Ker. 670). 2) Velappan K. v. State of Kerala (1997 (2) ILR 441). 3) R.K.V. Motors & Timbers (P) Ltd. v. Regional Transport Officer (1982 KLT 166 (FB). 4) Sri Vijayalakshmi Rice Mills, etc. v. State of Andhra Pradesh (AIR 1976 SC 1471). 5) Mohanan v. Director of Homeopathy (2006 (3) KLT 641). 6) Commissioner of Income Tax v. Ratnam Pillai (1990 (2) KLT 342). 7) P. Bhima Reddy v. State of Mysore & Others (1969 (1) SCC 68). 8) Association of Kerala Government College Teachers and Another v. State of Kerala and Others (1995 (3) ILR Ker.46). 9) M/s. Pankaj Jain Agencies v. Union of India and Others (1994) 5 SCC 198). 10) Baburao alias P.B. Samant v. Union of India and WP(C) 28205/06 & 2557/07 8 Others (1988 (Supp) SCC 401). In R.K.V. Motors & Timbers (P) Ltd. v. Regional Transport Officer (1982 KLT 166), a Full Bench of this Court was dealing with a case under the Kerala Motor Vehicles Taxation Act, 1976. The question arose when the Notification bringing Rules under the Act came into force. The Full Bench proceeded to hold as follows: “25. This difference between an Act of legislature and a subordinate legisltion, had been dealt with by Maxwell while discussing the retrospective effect of a legislative enactment. While it has been noted that an Act of Parliament can be effective from the date on which the Act receives the Royal assent, the position in relation to statutory instruments was held to be different. This difference had been clearly brought out in the decision in Johnson v. Sargani & Sons (1918) K.B.101. Maxwell refers to that case with the following observation: “According to a decision of Bailhache J., statutory instruments do not come into operation the day on WP(C) 28205/06 & 2557/07 9 which they are made, but on the day on which they are first made available or known to the public or to the person whom it is sought to affect by them.” See Maxwell on the Interpretation of Statutes, 12th Edition pp. 15 and 16. Bailhache J. in the decision aforesaid, adverted to the argument (given at page 102 of the report) of the defence counsel: “The order became effective only when it became known to the parties and the public, namely, on May 17. The suggested analogy between a statute and an Order such as this is not sound. A publicity is given to a statute during its passage through Parliament which is entirely absent in the case of an Order.” The reasoning of the Judgment is contained in the following words occurring in page 103: “While I agree that the rule is that a statute takes effect on the earliest moment of the day on which it is passed or on which it is declared to come into operation, there is about statutes a publicity even before they come into operation which is absent in WP(C) 28205/06 & 2557/07 10 the case of many Orders such as that with which we are now dealing; indeed. If certain Orders are to be effective at all, it is essential that they should not be known until they are actually published. In the absence of authority upon the point I am unable to hold that this Order came into operation before it was known.......” The Court referred to the decision of the Apex Court in Harla v. The State of Rajasthan (AIR 1951 SC 467). In Commissioner of Income Tax v. Ratnam Pillai (1990 (2) KLT 342), a Division Bench of this Court considered the question when the Notification issued under the Income Tax Act became effective. This Court affirmed the finding of the Appellate Tribunal that the Notification was published in the Extraordinary Gazette and made available to the public only on 3.4.1979 and became effective only from then onwards. The Division Bench drew support from the Full Bench in R.K.V. Motors & Timbers (P) Ltd. v. Regional Transport Officer (1982 KLT 166), and proceeded to reiterate that before a law becomes operative, it must be promulgated and published. It must be broadcasted in WP(C) 28205/06 & 2557/07 11 some recognizable way, so that all men may know what it is. In Baburao Alias P.B. Samant v. Union of India and Others ((1988) Supp. SCC 401), the Apex Court has considered the question as to the need for publication of the proclamation of emergency. It proceeded to hold as follows: “Article 352 does not prescribe that a Proclamation of Emergency should be published in the Official Gazette. A Proclamation of Emergency being a very important event affecting public life has to be published in any manner known to the modern world and the publication in the Official Gazette is one such mode. If the Constitution requires that a particular mode of publication is necessary, then such mode must be followed but if there is no mode of publication prescribed by the Constitution, then it must be considered that the Constitution has left the method of publication to the authority issuing the Proclamation in order to make it known to the members of the public. In the instant case the Proclamations of Emergency had been published WP(C) 28205/06 & 2557/07 12 in the Official Gazette.” In M/s. Pnkaj Jain Agencies v. Union of India and Others ((1994) 5 SCC 198), the Apex Court was considering a question as to when a Notification under Section 25 of the Customs Act, 1962 granting exemption became operative. The Court proceeded to hold after an exhaustive review of case law, that the mode of publication being prescribed, the Notification will come into effect from the date of its publication in the Official Gazette. The Court repelled the contention that unless a Notification was made available in Bombay where the import took place, it will not become operative. In Harla v. State of Rajasthan (AIR 1951 SC 467), the Court held as follows: “Natural justice requires that before a law can become operative, it must be promulgated or published. It must be broadcast in some recognisable way so that all men may know what it is; or, at the very least, there must be some special rule or regulation or customary channel by or through which such knowledge can be WP(C) 28205/06 & 2557/07 13 acquired with the exercise of due and reasonable diligence.” In P. Bhima Reddy v. State of Mysore & Others ((1969) 1 SCC 68), the Apex Court has taken the view that the expression “at once” in Rule 19(1) of the Mysore Excise (Disposal of Privileges of Retail Vend of Liquors) Rules, 1967 meant “within a reasonable time” before the first of July. I am of the view that the said interpretation apparently canvassed in the context of the Rule in the present case that the Rules will come into force at once is totally inapposite. 6. Per contra, Shri O.V. Radhakrishnan, learned senior counsel appearing for the second respondent would place reliance on a Bench decision of this Court in C.R. Jose and Others v. The Board of Revenue and Others (1986 (2) ILR 670). There, amendment was made to the Special Rules on 14.5.1982. A contention was taken that in view of Section 3 of the Kerala Interpretation of General Clauses Act, 1125, the amendment came into force only when it was first published in the Gazette, namely on 6.7.1982. Repelling the argument, the Division WP(C) 28205/06 & 2557/07 14 Bench held as follows: “This argument fails to give effect to the express language of Section 3 of the Act, which states that “where any Act is not expressed to come into operation on a particular day, then it shall come into operation on the day on which the Act, is first published in the Gazette.......... Here in G.O.(P) No.36/82/TD dated 14th May, 1982 itself, the note to Section 2 of the amendment rules, specifically states that two years or four chances shall be given..................from the date of issue of the orders. The amendment itself has expressed sufficiently and in clear terms that, that it will come into operation from the date of issue of the orders, i.e. 14th May, 1982 itself. The argument that Section 3 of the Kerala Act No.VII of 1125 is attracted, is without force and it is repelled.” Learned senior counsel further relied on the decision in Sri Vijayalakshmi Rice Mills, New Contractors Co. etc. v. State of Andhra Pradesh (AIR 1976 SC 1471). Therein, it is necessary to notice the facts. The question which arose was whether the WP(C) 28205/06 & 2557/07 15 appellants were entitled to be paid price according to the rate specified in the Andhra Pradesh Price Control (Third Amendment) Order, 1964, for the rice supplied by the appellants in January and February 1964, or according to the rate specified in the order as it stood in 1963. By virtue of the Price Control Order, 1963, maximum prices at which varieties of rice were to be sold was as specified in the corresponding entries in the Schedule. Akkulu rice would be sold at Rs.46.89 per Quintal. The appellants sold that variety of rice from 26th January, 1964 to 21st February, 1964 and was paid at the rate as aforesaid. The Price Control Order 1964, substituting for the word “the Schedule”, “the words and figures” came to be made. Thereafter the Price Control (Third Amendment) Order, 1964 was issued on 23.3.1964. Therein, for Akkulu rice, the maximum price for quintal was Rs.52.25. The appellants thereupon represented that they should be paid enhanced rate for the supplies made by them from 26.,1.1964 to 21.2.1964. The Court proceeded to hold as follows: “5. Mr. Nariman appearing on behalf of WP(C) 28205/06 & 2557/07 16 the appellants has laid great emphasis on the word “substituted” occurring in clause 2 of the Rice (Andhra Pradesh) Price Control (Third Amendment) Order, 1964 and has urged that the claim of the appellants cannot be validly ignored. Elaborating his submission, counsel has contended that as the prices fixed by the Government are meant for the entire season, the appellants have to be paid at the controlled price as fixed vide the Rice (Andhra Pradesh) Price Control (Third Amendment) Order, 1964 regardless of the dates on which the supplies were made. We cannot accede to this contention. It is no doubt true that the literal meaning of the word “substitute” is “to replace” but the question before us is from which date the substitution or replacement of the new Schedule took effect. There is no deeming clause or some such provision in the Rice (Andhra Pradesh) Price Control (Third Amendment) Order, 1964 to indicate that it was intended to have a retrospective effect. It is a well recognized rule of interpretation that in the absence of express words or appropriate language from which WP(C) 28205/06 & 2557/07 17 retrospectivity may be inferred, a notification takes effect from the date it is issued and not from any prior date. The principle is also well settled that statutes should not be construed so as to create new disabilities or obligations or impose new duties in respect of transactions which were complete at the time the Amending Act came into force.” Learned senior counsel appearing on behalf of the respondent High Court placed considerable reliance on the aforesaid passage to contend that the Rule must be taken to have been made from the date on which it is issued. The pointed question which arises in this case apparently did not arise in the said case. Ext.P4 is an amendment to the statutory Rules. Making of an amendment leading to the creation of subordinate legislation and the date from which the said subordinate legislation comes into effect is the question which arises in this case. Apparently, the Apex Court was not dealing with the question whether publication in the Gazette or publication of the order is WP(C) 28205/06 & 2557/07 18 necessary to breathe life into the Rule. Learned senior counsel also relied on the following passage in the decision in Mohanan v. Director of Homeopathy (2006 (3) KLT 641 (FB)): “24. We do not think that either R. 14 of the Kerala Public Service Commission Rules of Procedure or the stipulation in the notification can make any difference to the law laid down by us as above. If such a contention is accepted, we would have to necessarily concede a power on the PSC to postpone the coming into force of the amended rules promulgated by the Government. In so far as the rule making authority is the Government, the power to fix the date of commencement of the Rules also shall be exclusively with the Government unless the statute otherwise prescribes. When the Government issues notification amending the Rules either with retrospective effect or with effect from the date of commencement of the Rule (which would be the date of commencement of the notification unless the notification itself expressly or by necessary implication stipulates WP(C) 28205/06 & 2557/07 19 otherwise), the operation of the Rules should commence on that day only and not other date.” That was a case where the PSC invited applications for selection to the post of Pharmacist Grade II. The last date for submission of application was 29.11.1995. Pursuant to the same, a rank list was published on 27.6.2003. The Notification was dated 23.2.1995. Government issued Special Rules in the meantime as the Homeopathy Subordinate Service Rules, 1999. The minimum qualifications for the post of Pharmacist Gr.II was altered with effect from 12.4.1999. The question arose whether after the amendment of the Rules, vacancies could be filled up from the list already published by the PSC as the list was prepared based on the qualifications prior to the amendment. Rule 14 of the Kerala Public Service Commission Rules of Procedure provided for advice of candidates by the Commission for all vacancies reported and pending before them and also against vacancies which were reported to them during the currency of the rank list. The Full Bench took the view that notwithstanding the amendment, if appointments are to be made WP(C) 28205/06 & 2557/07 20 from the list prepared according to the unamended Rules, it would amount to postponing of the date of commencement of the amended Rules itself which no authority other than the Government can do. The Court further took the view that once the amendment comes into force, any vacancy which arises subsequent to the amendment of the Rules can be filled up only in accordance with the amended Rules, notwithstanding the currency of any rank list published by the PSC. It is in the context of the contention based on the alleged right of the candidates to be