Case: A.P. Showkath Ali &amp; Others Vs. State of Kerala &amp; Others

to emphasise that such a course will be permissible only in those rare cases where very strong grounds exist justifying a valid classification of the cases of the officers in question for the purposes of Art. 14 and 16 of the Constitution. In determining what is just and equitable the authority should take into account the overall effect that the proposed order would have in relation not merely to the particular officers whose cases are specifically dealt with by it but also to all others belonging to the same service, category or class. The mere fact that the enforcement of a rule creates hardship to an officer or a group of officers will be no ground for invoking the power under R. 39, because it must be assumed that the possibility of the causation of any such hardship must have been duly taken into account at the time when the rule in question was made and the rule making authority has nevertheless thought it fit to enact such a provision.21. Though it was strongly contended on behalf of the petitioners that the power under R. 39 can under no circumstances be exercised in such a way as to affect the rights of any of the other persons in the service, we find it difficult to uphold the said contention when it is stated in such a wide form. While explaining the scope of R. 39 we have already held that it is permissible under the said rule to grant a relaxation of the rigour of the rules or even an exemption from any provision contained in the rules in favour of any officer or officers, in regard to whom the facts and circumstances are such that a valid classification for according special treatment would be justified under Art. 14 and 16 of the Constitution. It is quite possible that when such an order is passed it may directly or indirectly have repercussions regarding the seniority, rank or chances of promotion of some of the other officers in service. That, however, has to be regarded as an inevitable incident of service flowing from the exercise of the power under R. 39 which is as much a rule regulating the conditions of service of all the officers in the service of the State as the other provisions contained in the Kerala State and Subordinate Services Rules. The rights conferred on the members of service by the earlier Rules Nos. 1 to 38 in the Kerala State and Subordinate Services Rules are not absolute in character but are inherently subject to the contingent liability of being affected by any order validly passed under R. 39.”(Emphasis supplied)12. Close to the facts, a situation where the Government had not conducted the tests, had arisen for consideration before the Kerala High Court in Sherafuddin v. State of Kerala, where at paragraph-9 , it was held that :“9. The Government having never conducted the examination, it will be unjust and inequitable to deny the service benefits to the incumbents if they are otherwise fit for such benefits. In fact the very purpose of the rule is to tide over such situations. There is no point in requiring the incumbents to perform an impossibility. They are required to pass the examination if only it is held. Admittedly it was never held. Therefore, the invocation of Rule 39 in such circumstances is justifiable in terms of justice and equity. The purpose of the rule is to use the principles of justice to supplement law in a fair and reasonable manner and for a just and equitable cause. The action/ inaction of the Government shall not prejudice an incumbent who is otherwise fit for service benefits and hence the order is perfectly justifiable.”and at paragraph-13, it has been further held:“13. .… When there is failure of justice resulting in inequity and injustice, Rule 39 of the General Rules is to be invoked in the interests of equity and justice. Such power can be exercised even with retrospective effect for doing complete equity. ….”13. We respectfully endorse the views expressed by the Kerala High Court.14. The whole purpose of equity jurisdiction is to prevent injustice and to promote justice. In the words of Krishna Iyer, J., in Roshanlal Kuthalia v. R. B. Mohan Singh Oberoi ((1975) 4 SCC 628 ) , “…..equity is the moral dimension of law”. Thus, equity shall overpower technicality where human justice is at stake (Charles K. Skaria v. C. Mathew, (1980) 2 SCC 752 ). There is a lot of difference between the court exercising equity jurisdiction and the law-maker itself exercising it. As in the instant case, a residuary power is reserved by the law maker, namely the Government, to be used in certain situations which are not otherwise prescribed under law. However, such power does not clothe the Executive to supplement a prescribed provision or to act in violation of the same. As stated by this Court in Bola v. Sardana ((1997) 8 SCC 522 ) , “Equity steps in where the law has left yawning gaps”. Even for courts, equity jurisdiction is meant to be exercised when there is no law operating in the field (Shiv Kumar Sharma v. Santosh Kumari, (2007) 8 SCC 600 ).15. Back to the facts, in ascertaining equity and justice, the simple question to be addressed is what would happen to those thirty seven Assistant Sub- Inspectors in service, in case the exemption is not granted. For no fault on their part, should they have to continue as Assistant Sub-Inspectors only till their retirement? Is there any point, nay, does it even appeal to common sense, to subject them to the test after more than twelve years of entering service and serving in promoted posts as well? Certainly, to remedy such a situation, an equitable relief deserves to be granted to such employees in the interest of justice by invoking Rule 39. That is what has been done by the Government as per the impugned Order dated 17.11.2000.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]10. We do not think that it needs any elaborate discussion to note that Rule 39 of the Rules is to operate notwithstanding anything contained in the Rules or Special Rules or Government Orders. No doubt, under Rule 13AA, the passing of test is obligatory for members of the Scheduled Caste and Scheduled Tribe below the rank ofin the Police Department. But it has to be seen that it is Rule 39 which is an exception to the exemption contemplated under Rule 13AA. Rule 39 is to operate notwithstanding anything prescribed not only in the Kerala State and Subordinate Services Rules or the Special Rules but even in any Government Order. The whole purpose of such residuary power is to remedy an otherwise, unjust and inequitable situation. Therefore, the Government Order dated 05.02.2000 also does not stand in the way of the 9 Government invoking Rule 39. That apart, Rule 13AA operates in the matter of promotion whereas in the instant case, Rule 39 is operated in the matter of probation.11. The reliance placed on the Full Bench decision in T.C. Sreedharan Pillai and others (supra), according to us, is of no avail to the appellants.We respectfully endorse the views expressed by the Kerala Highis a lot of difference between the court exercising equity jurisdiction and theitself exercising it. As in the instant case, a residuary power is reserved by the law maker, namely the Government, to be used in certain situations which are not otherwise prescribed under law. However, such power does not clothe the Executive to supplement a prescribed provision or to act in violation of the same.15. Back to the facts, in ascertaining equity and justice, the simple question to be addressed is what would happen to those thirty seven Assistant SubInspectors in service, in case the exemption is not granted. For no fault on their part, should they have to continue as Assistantonly till their retirement? Is there any point, nay, does it even appeal to common sense, to subject them to the test after more than twelve years of entering service and serving in promoted posts as well? Certainly, to remedy such a situation, an equitable relief deserves to be granted to such employees in the interest of justice by invoking Rule 39. That is what has been done by the Government as per the impugned Order dated 17.11.2000.