JAMES JUSTUS DANIEL Vs. BOARD OF REVENUE
HIGH COURT OF KERALA
James Justus Daniel
BOARD OF REVENUE
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V.BALAKRISHNA ERADI,J. -
(1.) THESE three writ petitions have been heard together since they involve a common question concerning the validity of the State Government's action in amending rule 27 of the Kerala State and Subordinate Service Rules,1958(hereinafter referred to as the Rules)by introducing a second proviso to sub rules(a)and(b)of the said rule with retrospective effect from 17th December 1958.The said amendment was effected as per the notification G.O.( P)No.426/PD,dated 15th November 1972.
(2.) RULE 27 lays down the principles for reckoning the seniority of a person in a service,class,category,grade etc.In the rule as it stood prior to the amendment in question there was only one proviso the sub -rules(a)and(b)and those sub -rules together with the said proviso read as follows."
"27.Seniority "( a)Seniority of a person in a service,class,category or grade shall,unless he has been reduced to a lower rank as punishment,be determined by the date of the order of his first appointment to such service,class,category or grade.If any portion of the service,of such person does not count towards probation under the Rules,his seniority shall be determined by the date of commencement of his service which counts towards probation.
(b)The appointing authority shall,at the time of passing an order appointing two or more persons simultaneously to a service,fix the order,of preference among them;and seniority shall be determined in accordance with it:
Provided that nothing contained in sub -rules(a)and(b)above shall be deemed to have superseded the orders of the Travancore -Cochin Government in R.Dis.No.8207/50/CS,dated 7th May 1951 as subsequently clarified in respect of any person who was a member of any service on the date of coming into force of these rules."
By the notification dated 15th November 1972 the rule was amended by adding a second proviso to sub -rules(a)and(b ).That proviso is in the following terms: -
"Provided further that the above said order of the Travancore -Cochin Government as subsequently clarified shall also be applicable to the persons appointed in the State of Kerala before the coming into force of these rules.
This amendment shall be deemed to have come into force with effect on and from 17 December 1958 ;.
The State Government has effected the above amendment in exercise of the power conferee on it by section 2 of the Kerala Public Services Act,1968.The principal point raised in these writ petitions is that the second clause of the new proviso which purports to give retrospective operation from 17th December 1958 to the main clause introduced by the amendment is illegal and ultra vires.It is contended by the petitioners that since the Kerala Public Services Act came into force only on 17th September 1968 a rule framed under the said Act cannot be validly brought into effect from any date anterior to the said date since no subordinate legislation can exist without the parent enactment being in force to give it vitality and support.The petitioners,therefore,submit that the action of the Government in purporting to amend rule 27 with retrospective effect from 17th December 1958 is beyond its competence and is hence void.
(3.) BEFORE we proceed to discuss the merits of the above contentions it will be useful to state briefly a few facts which constitute the background for the introduction of the aforesaid amendment in the rule.It would appear that prior to the formation of the United State of Travancore -Cochin a principle was being followed in the Travancore Government service to allow senior hands who had been passed over for promotion for want of test qualification to regain their seniority over their erstwhile junior,who had secured earlier promotions by reason of their possessing the test qualification,on the former getting themselves promoted to the higher category after acquiring the test qualification,provided that by that time the juniors had not already been confirmed in the higher post.Subsequent to the integration of Travancore and Cochin this principle was made applicable to all the personnel in the service of the T.C.State as per the T.C.Government order R.Dis.No.8207/50/CS .,dated 7th May,1951.Even after the formation of the Kerala State the provisions of the said Government order continued to govern all the persons allotted to Kerala from the erstwhile T.C.State by virtue of the proviso to section 115(7)of the States Reorganisation Act,1956.The personnel allotted to this State front Madras were not,however,governed by the said Government order since their terms and conditions of service were regulated by the provisions contained in the relevant rules that were applicable to them in the Madras Service.This was the position until common service rules were formulated by the State of Kerala.Such unifiedprinciples applicable to all the personnel in the service of Kerala Government were promulgated by issuing the Rules on 17th December 1958.However,even while issuing such unified rules the operation of the T.C.Government G.O.dated 7th May 1951 was saved by engrafting a proviso to sub -rules(a)and(b)of rule 27 of the Rules stating that nothing contained in those sub -rules shall be deemed to have superseded the said order of the Travancore -Cochin Government in respect of any person who was already in service on the date of coming into force of the Rules.The effect of the said proviso was clearly to keep alive the provisions of the G.O.dated 7th May,1951 in respect of persons who were governed by the said order at the time of commencement of the Rules.;
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