Case: KERALA PUBLIC SERVICE COMMISSION Vs. K.N. RADHAMANI &amp; ORS. ETC

GOs without the benchmark pay stipulation for recruitment to the posts of clerk/cashier from in-service category and made SSLC qualification to be acceptable eligibility criteria. This practice developed under the 1969 Act is indicative of the fact that for in-service candidates applying for direct recruitment to the posts of clerk/cashier in District Co-operative Banks, the minimum eligibility criteria so far as qualification is concerned is SSLC or equivalent and the floor-level pay stipulation would not apply. This practise can be sustained applying principle akin to contemporaneous expositio. The provisions of Rule 186 relate to Co-operative Societies in general whereas the GO of 1988 relates to service Regulations of a sub-species- District/Central Co-operative Banks. 24. Now we shall turn to the Coordinate Bench decision delivered in the case of Valsala Devi (supra). On behalf of KPSC it has been argued that it is a binding precedent and our attention has been particularly drawn to the last paragraph of this judgment in which opinion of the Bench is reflected. There are, however three factors which we have to consider before we come to a conclusion as to whether the finding of the Coordinate Bench could be treated to be a binding precedent for us or not in this set of proceedings. First is that Valsala Devi (supra) considered the issue of promotion from feeder posts and was not a contest in relation to direct recruitment to the subject post. The second factor is that the circular of 1982 and the Service Regulation of 1988 were not considered in that decision. We have gone through the Bench decision from which the appeal arose and we did not find any discussion on these circulars and regulations. Thirdly, the Coordinate Bench did not have the advantage of considering the reasoning contained in the Full Bench decision, which is under appeal before us. The impact of statutory instruments in the form of GOs were not brought to the notice of the Coordinate Bench and hence not considered in the case of Valsala Devi (supra). The legality of the 1982 circular and the 1988 GO has not been questioned by KPSC. There is overlapping effect of the 1969 Rules and the GOs issued in exercise of power under Section 80 of the Act in the field of laying down qualification criteria for the subject-posts. But in such a situation, in our opinion it would be imprudent on our part to treat such overlapping zone as collision point to determine which provision carries greater legislative strength. In such circumstances, the Court has to take a harmonious approach and in extreme cases apply the reading down principle to reconcile inconsistent provisions flowing from different provisions having same statutory origin. The Kerala Co-operative Societies Rules empower the Government to make rules to provide for, inter-alia, qualifications for employment in certain classes of societies. Sub-clause (3) of Section 80 of the same statute permits the Government to make rules for regulating the qualifications, remuneration and other conditions of service. The Rules made under Section 80(3) are thus to address the detailed stipulations pertaining to conditions of service of the officers and servants of different classes of societies specified in Section 80(1). 25. Moreover, the authorities have been dealing with the qualification criteria at specific level for a particular class of society by issuing circulars and GOs over a period of time and in our opinion such implementation criteria has acquired enforceability status on the basis of usage at the administrative level. The 1982 Instruction has not been invalidated by any subsequent Government action or judicial order. Nothing on that count has been brought to our notice. The authorities appear to have carved out the posts of clerk/cashier in Co-operative Banks to subject them to the instruments made in various forms under Section 80(3) of the Act, whereas Rule 186 has general application. The 1988 Regulations relate to Co-operative Banks only, and source of power for making such Regulations appear to be Section 80(3) of the 1969 Act. Thus, in respect of such special category, Regulations made under Section 80(3) of the Act ought to prevail. 26. In these circumstances, in our opinion, if an advertisement is made providing for eligibility criteria different from that statutorily prescribed, it would be open to the candidates to challenge the legality of such eligibility criteria. We do not think in the peculiar circumstances of this case it was permissible on the part of KPSC to prescribe qualification as minimum eligibility criteria which is beyond that prescribed by the statute. While it is true that none of the candidates have had challenged the legality of the qualification condition stipulated in the advertisement, majority have come to this Court at a time in close proximity to the publication of the employment notification. The judgment of the Coordinate Bench has not been decided on the points argued before us. Nor the Coordinate Bench had the advantage of going through the reasoning contained in the Full Bench decision though before the said judgment was delivered by the Coordinate Bench, the Full Bench decision was rendered. For these reasons, in our opinion, the Coordinate Bench decision would not constitute a binding precedent so far as the present set of proceedings is concerned. In these circumstances, we dismiss the five appeals of the Commission. The Writ Appeal No. 865 of 2013 which was filed by the Commission before the Kerala High Court against the judgment in WP (C) No. 21073 of 2011 dated 22nd February, 2013 being Transferred Case (Civil) No. 60 of 2014 - Kerala Public Service Commission v. Yesudas and Ors. is also dismissed. Notices were not issued in the two Interlocutory Applications, I.A. No. 2 of 2012 and I.A. No. 82851 of 2021. 27. From Annexures B to I.A. No. 2 of 2012, we find that for taking further steps in the matter of appointment of the applicants thereof, the Commission was waiting for the position of SLP….(CC) No. 17182 of 2008 (now Civil Appeal No.1802 of 2010).

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

Explanation:
1[ds]16. The proceedings out of which that appeal arose related to an earlier advertisement dated 26th October, 1999. In these cases, however, we are primarily concerned with the advertisement of 2006. Moreover, the case of Valsala Devi (supra) was in relation to promotion whereas in the present set of proceedings, the vacancies are to be filled up by direct recruitment from in-service candidates. Thirdly, the reasoning on which the High Court had rejected the plea of the candidates was laches, as recorded in the Coordinate Bench judgment. Only in Civil Appeal No. 2822 of 2010, the appellants had applied for the posts in question both under the 1999 and 2006 advertisements. They were not successful before the High Court on the ground of having filed a belated writ petition, after delivery of the Full Bench decision.17. The Coordinate Bench in the case of Valsala Devi (supra) had sustained the stand of the Commission on two grounds. The first was that the advertisement had been issued for all the candidates. The rationale appears to be that the appellant had not been discriminated against. Secondly, the Court found nothing wrong in prescribing higher qualification in the advertisement by the KPSC.18. So far as Civil Appeal Nos. 2822 and 2823 of 2010 are concerned, we do not find any error in the judgment of the High Court in rejecting the writ petition on the ground of delay. In disputes related to service, particularly in the field of recruitment, fate of a large number of candidates are involved. An aspirant for the posts advertised has to demonstrate promptitude in approaching the Court if in his perception, the eligibility criteria is fixed beyond that stipulated by law. Delayed arrival of a candidate in the judicial forum can have chaotic consequences if decisions taken on the basis of the disputed eligibility criteria are required to be upset much after the selection process is over. The High Court has rightly exercised its discretion in dismissing the said two writ petitions. We dismiss both the appeals.19. So far as rest of the appeals are concerned, these arise out of the 2006 advertisement. The rejected candidates had instituted the proceedings immediately after their applications were rejected. Though the candidates did not challenge legality of the notified eligibility criteria, there was no inordinate delay in questioning the Commissions action. So far as decision of the Coordinate Bench in Valsala Devi (supra) is concerned, there is no doubt that the said judgment was delivered in respect of a different advertisement, but the eligibility criteria remained substantially same. A plain reading of clause 186 of the 1969 Rules shows that those from in-service category with base education of SSLC or equivalent are eligible for participation in recruitment process for those posts which have starting pay below Rs.250/-.20. Before the Full Bench, main argument of the Commission was anchored on Rule 186 as well as to the GO of 1986 which has been referred to in the judgment as Exhibit P5. Submission of KPSC is that the said Exhibit P5 was Rule made under Section 80 of the 1969 Act and this was not required to be published. But the said Rule was again altered by a GO dated 23rd March, 1988, and for in- service candidates, only three years experience in affiliated primary co-operative society with minimum qualification of SSLC with JDC was prescribed under revised Rule 8(i)(b) of the Service Regulation.21. As regards, source of power of making these regulations under respective GOs, KPSC had taken stand before the Full Bench that these were made under Section 80 of the said Act. Question has been raised about implementation of the said Rules as there was no consultation with the State Co-operative Union for making these Rules. The Constitution Bench decision in the case of State Of U. P. v. Manbodhan Lal Srivastava [(AIR) 1957 SC 912]   has been referred to before us. In this case, the question of lack of consultation with Public Service Commission and the effect thereof in the light of the provisions of Article 320 of the Constitution of India was examined by the Constitution Bench. It was, inter-alia, held in this judgment:-We have already indicated that Article 320(3)(c) of the Constitution does not confer any rights on a public servant so that the absence of consultation or any irregularity in consultation, should not afford him a cause of action in a court of law, or entitle him to relief under the special powers of a High Court under Article 226 of the Constitution or of this Court under Article 32. It is not a right which could be recognized and enforced by a writ. On the other hand, Article 311 of the Constitution has been construed as conferring a right on a civil servant of the Union or a State, which he can enforce in a court of law. Hence, if the provisions of Article 311, have been complied with in this case — and it has not been contended at any stage that they had not been complied with — he has no remedy against any irregularity that the State Government may have committed. Unless, it can be held, and we are not prepared to hold, that Article 320(3)(c) is in the nature of a rider or proviso to Article 311, it is not possible to construe Article 320(3)(c) in the sense of affording a cause of action to a public servant against whom some action has been taken by his employer.22. The judicial exercise we have to undertake is to examine the applicability of the provisions of Rule 186 made under Section 109 of the 1969 Act and the scope of operation of the Regulations made under Section 80 thereof. We do not accept the argument that because these Regulations were made without prior consultation with the State Co-operative Unions, the Rules would not be implementable. KPSC itself relied on the said provisions to justify making of the GO of 1986. Moreover, following the Constitution Bench judgment in the case of Manbodhan Lal Srivastava (supra), we hold that lack of consultation as specified in Section 80(3) of the Act by itself would not render any Rule made thereunder a stillborn statutory instrument. KPSCs own stand before the Full Bench appeared to be that rules made under Section 109 as also under Section 80 can co-exist. By issuing the 1982 order, the Registrar of the Co-operative Societies had in substance suspended the applicability of the floor-level pay stipulation, directing that pending amendment of the rules the qualification under Rule 186 for different categories of posts have to be decided based on pre-revision scales of pay. On this count, the Commissions position is that it was not within the power of jurisdiction of the Registrar of Co- operative Societies to keep on hold the provisions of statutory rules. But this factor read with the GO of 23rd March, 1988 establishes that the State Government had intended to keep in abeyance the benchmark pay provision as specified in Rule 186 thereof. KPSC cannot ignore existence of these provisions giving their own interpretation to law and statutory instruments made under it.24. Now we shall turn to the Coordinate Bench decision delivered in the case of Valsala Devi (supra). On behalf of KPSC it has been argued that it is a binding precedent and our attention has been particularly drawn to the last paragraph of this judgment in which opinion of the Bench is reflected. There are, however three factors which we have to consider before we come to a conclusion as to whether the finding of the Coordinate Bench could be treated to be a binding precedent for us or not in this set of proceedings. First is that Valsala Devi (supra) considered the issue of promotion from feeder posts and was not a contest in relation to direct recruitment to the subject post. The second factor is that the circular of 1982 and the Service Regulation of 1988 were not considered in that decision. We have gone through the Bench decision from which the appeal arose and we did not find any discussion on these circulars and regulations. Thirdly, the Coordinate Bench did not have the advantage of considering the reasoning contained in the Full Bench decision, which is under appeal before us. The impact of statutory instruments in the form of GOs were not brought to the notice of the Coordinate Bench and hence not considered in the case of Valsala Devi (supra). The legality of the 1982 circular and the 1988 GO has not been questioned by KPSC. There is overlapping effect of the 1969 Rules and the GOs issued in exercise of power under Section 80 of the Act in the field of laying down qualification criteria for the subject-posts. But in such a situation, in our opinion it would be imprudent on our part to treat such overlapping zone as collision point to determine which provision carries greater legislative strength. In such circumstances, the Court has to take a harmonious approach and in extreme cases apply the reading down principle to reconcile inconsistent provisions flowing from different provisions having same statutory origin. The Kerala Co-operative Societies Rules empower the Government to make rules to provide for, inter-alia, qualifications for employment in certain classes of societies. Sub-clause (3) of Section 80 of the same statute permits the Government to make rules for regulating the qualifications, remuneration and other conditions of service. The Rules made under Section 80(3) are thus to address the detailed stipulations pertaining to conditions of service of the officers and servants of different classes of societies specified in Section 80(1).25. Moreover, the authorities have been dealing with the qualification criteria at specific level for a particular class of society by issuing circulars and GOs over a period of time and in our opinion such implementation criteria has acquired enforceability status on the basis of usage at the administrative level. The 1982 Instruction has not been invalidated by any subsequent Government action or judicial order. Nothing on that count has been brought to our notice. The authorities appear to have carved out the posts of clerk/cashier in Co-operative Banks to subject them to the instruments made in various forms under Section 80(3) of the Act, whereas Rule 186 has general application. The 1988 Regulations relate to Co-operative Banks only, and source of power for making such Regulations appear to be Section 80(3) of the 1969 Act. Thus, in respect of such special category, Regulations made under Section 80(3) of the Act ought to prevail.26. In these circumstances, in our opinion, if an advertisement is made providing for eligibility criteria different from that statutorily prescribed, it would be open to the candidates to challenge the legality of such eligibility criteria. We do not think in the peculiar circumstances of this case it was permissible on the part of KPSC to prescribe qualification as minimum eligibility criteria which is beyond that prescribed by the statute. While it is true that none of the candidates have had challenged the legality of the qualification condition stipulated in the advertisement, majority have come to this Court at a time in close proximity to the publication of the employment notification. The judgment of the Coordinate Bench has not been decided on the points argued before us. Nor the Coordinate Bench had the advantage of going through the reasoning contained in the Full Bench decision though before the said judgment was delivered by the Coordinate Bench, the Full Bench decision was rendered. For these reasons, in our opinion, the Coordinate Bench decision would not constitute a binding precedent so far as the present set of proceedings is concerned. In these circumstances, we dismiss the five appeals of the Commission. The Writ Appeal No. 865 of 2013 which was filed by the Commission before the Kerala High Court against the judgment in WP (C) No. 21073 of 2011 dated 22nd February, 2013 being Transferred Case (Civil) No. 60 of 2014 - Kerala Public Service Commission v. Yesudas and Ors. is also dismissed. Notices were not issued in the two Interlocutory Applications, I.A. No. 2 of 2012 and I.A. No. 82851 of 2021.27. From Annexures B to I.A. No. 2 of 2012, we find that for taking further steps in the matter of appointment of the applicants thereof, the Commission was waiting for the position of SLP….(CC) No. 17182 of 2008 (now Civil Appeal No.1802 of 2010).