2000 Supreme(SC) 1487

2000(6) Supreme 233
SUPREME COURT OF INDIA
(From Kerala High Court)
V.N. Khare & S.N. Phukan, JJ.
R. Hariharan & Ors. -Appellants
versus
K. Balachandran Nair & Ors. -Respondents
Civil Appeal Nos. 9090-9091 of 1996
Decided on 11-9-2000
Counsel for the Parties :
For the Appearing Parties : P.P. Rao, T.L.V. Iyer, V.R. Reddy and P. Krishnamurthy, Sr. Advocates, E.M.S. Anam, T.G.N. Nair, B.V. Deepak, Dileep Pillai and Ajit Pudissery, Advocates.

IMPORTANT POINTS
1. Under Section 3 of the Kerala Public Service Commission (Additional Functions) Act, for appointments in State Electricity Board the Public Service Commission is required to be consulted on the suitability of the candidates for appointments, promotions or transfers.
2. Under Section 3 of the Kerala Public Service Commission (Additional Functions) Act, in respect of appointments in State Electricity Board, in case of difference of opinion among Public Service Commission and Electricity Board, Government s decision would be final.

Headnote:(i) Kerala Public Service Commission (Additional Functions) Act, 1963-Section 3-Appointment to posts in State Electricity Board-Appointment to post of Assistant Engineer from in service candidates-Suitability of candidature-Electricity Board is required to consult Public Service Commission.

       A perusal of clause (b) of sub-section (1) of Section 3 of the Act shows that clause (b) is in two parts. The first part of clause (b) runs as under :

       "on the principles to be followed in making appointments to services and posts under the Electricity Board and in making promotions and transfers from one service to another."

       The second part of clause (b) runs as under :

       "and on the suitability of candidates for such appointments, promotions or transfers."

       So far as the first part of clause (b) is concerned, we are in agreement with the contention of learned counsel for the appellant that it pertains to laying down the principles to be followed in making appointments to the service and does not provide for consultation with regard to appointments in service. But the same is not the position in the case of second part of clause (b), extracted above. The language employed in clause (b) is plain and simple and there is no ambiguity in it. Both the parts of clause (b) operate on different fields. The first part of clause (b) requires consultation by the Public Service Commission on the principles followed in making appointments, promotions and transfers, whereas later part of clause (b) casts duty on the Board to consult the Public Service Commission on the matters pertaining to appointments, promotions and transfers of the employees of the Board meaning thereby that the Public Service Commission is required to be consulted on the suitability of the candidates for appointments, promotions or transfers. It is true that there is no substantive provision like clause (1) of Article 320 of the Constitution in Section 3 of the Act. However, later part of clause (b) is complete and substantive provision in itself and as such Section 3 of the Act does not require enactment any further provision like clause (1) of Article 320 of the Constitution providing for judging the suitability of candidates by the Public Service Commission in the matter of appointments. This interpretation of ours is in consonance with the object of the Act for which the Act has been enacted. If we put any other interpretation and hold that the Public Service Commission is not required to be consulted in the matters of appointments, promotions or transfers, the same would be repugnant to the object of the Act which means that the provisions of the Act are meaningless and without any purpose. Further, the rules framed by the State Government in exercise of its powers under Section 4 of the Act has already provided the situations where appointments in the Board would require no consultation with the Public Service Commission. There is no mention in the rules that there would be no consultation with the Public Service Commission in respect of appointments of Assistant Engineers in the Board. It is settled principle of interpretation that the court shall lean towards an interpretation which advances object of the Act. We are, therefore, of the view that second part of clause (b) of sub-section (1) of Section 3 provides for consultation with the Public Service Commission in the matter of appointments of Assistant Engineers in the Board. (Para 7)

       (ii) Kerala Public Service Commission (Additional Functions) Act, 1963-Section 3(2)-Appointment to posts in State Electricity Board-Difference of opinion between Public Service Commission and Electricity Board-Matter required to be referred to State Government-Decision of State Government would be final-State Government can overrule advise of Public Service Commission. (Para 9)

       (iii) Kerala Public Service Commission (Additional Functions) Act, 1963-Section 3-Appointment to post of State Electricity Board-Post of Assistant Engineers-10 posts reserved for in Service Graduate Engineer-PSC not taking step for appointment of 10 quota-Electricity Board appointing appellants in 1979 subject to passing Department test-Respondents direct recruits appointed in 1982-Electricity Board regularising service with effect from date of initial appointment-PSC refusing to give concurrence-Matter referred to Government-Government overruling PSC s decision and regularising service with effect from acquiring necessary qualification-Appellants acquired qualification in 1981-Government s decision final-Appellants senior to respondent direct recruits.

       Held : The Public Service Commission did not agree for regularisation of services of the appellants with effect from the date of joining their duties and as such the matter was referred to the State Government. The State Government after consultation with the Public Service Commission found that the appellants had possessed the prescribed qualifications and were suitable to be appointed as Assistant Engineers and further they gained considerable experience and competence, and as such over-ruled the advice of the Public Service Commission and approved the regularisation of services of the appellants with effect from the date they acquired the requisite qualifications. Admittedly, the appellants had acquired the qualifications prior to 21.10.81, which is the date of joining duty by the respondents herein. In this background the question that arises is whether the Government could grant regularisation of services of the appellants as Assistant Engineers with effect from the date of acquisition of their qualifications. Sub-section (2) of Section 3 of the Act provides that in case of any difference of opinion between the Public Service Commission and the Electricity Board on any matter, the Electricity Board is required to refer the matter to the Government and the decision of the Government thereon is to be treated as final. The said power of the State Government has not been questioned. Further, under Section 4 of the Act, the State Government is empowered to lay down the matters where consultation with the Public Service Commission is not necessary. The State Government in exercise of its power has already provided that in certain classes of appointments it is not necessary to consult the Public Service Commission. Thus, it would mean that the State Government has overriding power to take a final decision where there is a difference of opinion between the Board and the Public Service Commission in the matter of regularisation of the services of the employee. Here, we find that in the facts and circumstances of the case, Government took the decision to overrule the advice of the Public Service Commission while accepting the reference made by the Board and passed order to regularise the services of the appellants with effect from the date of acquiring necessary qualification. The said order passed by the State government in law has effect of regularising the services of the appellants in accordance with the provisions of the Act. Once it is held that the regularisation of services of the appellants were in accordance with the provisions of the Act, the services of the appellants prior to regularisation were required to be counted while determining their inter-se seniority in the cadre of Assistant Engineers under Rule 27 of The Kerala State and Subordinate Rules. The High Court fell in error in holding that the seniority of the appellants has to be counted from the date when their services stood regularised by the State Government i.e. on 12.5.1982. (Para 9)