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2024 Supreme(Ker) 686
IN THE HIGH COURT OF KERALA AT ERNAKULAM
THE HONOURABLE THE ACTING CHIEF JUSTICE MR. A.MUHAMED MUSTAQUE, THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN, THE HONOURABLE MR. JUSTICE S. MANU, JJ.
Rosemary Varkey M., D/o. Varkey M.O. and Anr. – Petitioners
Versus
State Of Kerala, Represented By The Secretary, Social Justice Department and Ors. – Respondents
OP(KAT) No. 393 Of 2023
Decided On : 18-07-2024
For the Petitioners: Elvin Peter P.J., K.R. Ganesh, Gouri Balagopal, Abhijith K. Anirudhan, Sreelekshmi A.S.
IMPORTANT POINT
In cases of conflict between Central and State laws, the Central law prevails unless the State law has received specific Presidential assent addressing the repugnancy.
Headnote:
PROBATION - RATIO OF APPOINTMENT - Probation of Offenders Act, 1958; Kerala Public Services Act, 1983; Article 254 of the Constitution - The court analyzed the conflict between the rules framed under the Probation of Offenders Act, 1958, and the Special Rules for the Kerala Social Welfare Subordinate Service under the Kerala Public Services Act, 1983. It emphasized that the rules under the Central enactment would prevail unless the State rules had received Presidential assent specifically addressing the repugnancy. The court concluded that the previous judgment in O.P.(KAT).No.80/2013 was incorrect and reaffirmed the precedence of the Central rules regarding appointment ratios.
Fact of the Case:
The case arose from a dispute regarding the appointment ratio for the post of Probation Officer Grade II in the Social Justice Department, where the petitioners argued that the rules under the Probation of Offenders Act, 1958 should prevail over the conflicting rules under the Kerala Public Services Act, 1983. The Tribunal had previously ruled against this argument based on an earlier Division Bench decision.
Finding of the Court:
The court found that the rules under the Probation of Offenders Act, 1958, which established a 2:1 ratio for appointments, should prevail over the Kerala Public Services Act, 1983, which prescribed a 1:2 ratio, unless the State rules had received specific Presidential assent addressing this conflict.
Issues: The primary issue was whether the rules framed under the Probation of Offenders Act, 1958 would take precedence over the Special Rules under the Kerala Public Services Act, 1983, in light of the repugnancy and the requirement for Presidential assent.
Ratio Decidendi: The court established that in cases of repugnancy between Central and State laws, the Central law prevails unless the State law has received specific Presidential assent addressing the repugnancy. The court clarified that the assent must be sought with reference to specific conflicts, and general assent does not suffice to validate all State rules.
Final Decision: The court set aside the Tribunal's judgment and directed the appointing authority and the Public Service Commission to adhere to the appointment ratio as per the rules framed under the Probation of Offenders Act, 1958.
JUDGMENT :
(A. Muhamed Mustaque, ACJ.) :
This matter is placed before the Full Bench based on a reference order dated 18/9/2023 of a Division Bench of this Court doubting the law laid down by another Division Bench in O.P.(KAT).No.80/2013 and connected case.
2. The question that arises for consideration is whether the rules framed under the Probation of Offenders Act, 1958, a Central enactment, will prevail over the Special Rules for the Kerala Social Welfare Subordinate Service framed under the general provisions of the Kerala Public Services Act, 1983 or not. A Division Bench of this Court in Mohanan v. State of Kerala [1989 (1) KLT 161] declared that the rules framed under the special enactment, that is, the Kerala Weights and Measures (Enforcement) Act would prevail over the Kerala Weights and Measures Subordinate Service Rules, 1978 framed under the general provisions of the Kerala Public Services Act, 1968.
3. The Division Bench in O.P.(KAT).No.80/2013 and connected case, without adverting to Mohanan’s case (supra), took the view that the Kerala Public Services Act, 1983 having obtained the assent of the President under Article 254(2) of the Constitution, the Special Rules for the Kerala Social Welfare State Service will prevail over the rules framed under the Probation of Offenders Act, 1958.
4. The petitioners in this case are the applicants before the Tribunal. They are included in the rank list for appointment to the post of Probation Officer Grade II in the Social Justice Department under the Kerala Probation of Offenders Rules framed under the Probation of Offenders Act. The method of appointment to the post is direct recruitment and appointment by transfer in the ratio of 2:1. In the Special Rules, namely, the Kerala Social Welfare Subordinate Service framed under the Kerala Public Services Act, the ratio of the method of appointment between the direct recruitment and appointment by transfer is 1:2. The petitioners contended that the rules framed under the Central enactment will have to be followed in regard to the ratio. The Tribunal did not accept this argument in the light of the judgment of the Division Bench of this Court in O.P. (KAT).No.80/2013 and another.
5. The Probation of Offenders Act, 1958 enacted by the Central Government is under Entry 2 of List III of the Seventh Schedule to the Constitution. The Kerala Public Services Act, 1968 was enacted by the State Legislature in exercise of powers under Article 309 of the Constitution of India and read with Entry 41 of List II of the Seventh Schedule to the Constitution.
6. The Government of Kerala made the rules, the Kerala Probation of Offenders Rules, 1960 in exercise of the powers conferred under Section 17 of the Probation of Offenders Act, 1958. The Kerala Public Services Act, 1968 was amended by Act 4 of 1984. By the Amendment Act, Section 4 was inserted with effect from 1/10/1981. This amendment was necessitated consequent upon the judgment of the Full Bench of this Court dated 7/10/1982 holding that provisional or temporary employees working in Government Departments are entitled to the benefit of protection of Chapter V-A of the Industrial Disputes Act, 1947. Section 4 was incorporated with retrospective effect to prevail the provisions of the Kerala Public Services Act and Rules over the Industrial Disputes Act, 1947, the Central enactment. This amendment received the assent of the President on 5/1/1984. In the light of the assent obtained by the President, the Division Bench, in O.P.(KAT).No. 80/2013 and another, was of the view that the rules framed under the Kerala Public Services Act would prevail over the rules framed under the Probation of Offenders Act. In Mohanan’s case (supra), the Division Bench did not examine the question from the angle of repugnancy referred to in the judgment in O.P.(KAT).No. 80/2013 and connected case. In Mohanan’s case, the Division Bench was of the view that the Public Services Act is a general enactment and the ru
