S. Anand v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE B.KEMAL PASHA TUESDAY, THE 19TH DAY OF MARCH 2013/28TH PHALGUNA 1934 WP(C).No. 37412 of 2009 (V) ---------------------------- PETITIONER(S): ---------------------- S.ANAND, T.C.NO.20/3020, SIVANCOVIL STREET, KARAMANA P.O., THIRUVANANTHAPURAM - 695 002. BY ADVS.SRI.V.G.ARUN SRI.T.R.HARIKUMAR RESPONDENT(S): ------------------------- 1. STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF CO-OPERATION THIRUVANANTHAPURAM 2. THE REGISTRAR OF CO-OPERATIVE SOCIETIES, OFFICE OF THE REGISTRAR OF CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM 3. KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, THIRUVANANTHAPURAM 4. THE THIRUVANANTHAPURAM DISTRICT CO-OPERATIVE BANK, REPRESENTED BY ITS BRANCH MANAGER, THIRUVANANTHAPURAM R4 BY ADV. SRI.C.K.JAYAKUMAR, SC, TVM. DIST. CO.OP.BANK LTD, R1 BY SPL.GOVERNMENT PLEADER (CO-OP.) SRI.D.SOMASUNDARAN R3 BY SRI.P.C.SASIDHARAN, SC, KPSC THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19-03-2013, ALONG WITH W.P.(C) NO.19435/2012 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC.37412/2009 ## APPENDIX ## PETITIONER'S EXHIBITS: - P1 COPY OF THE DEGREE CERTIFICATE . - P2 COPY OF THE MARK LIST DT 21.11.2002. - P3 COPY OF THE CERTIFICATE OF MBA DT 16.1.2002. - P4 COPY OF THE NOTIFICATION DT 15.6.2005. - P5 COPY OF THE NOTIFICATION DT 15.12.2009. _// True Copy //_ _PA to Judge_ ## Thottathil B.Radhakrishnan ## & B.Kemal Pasha, JJ. = = = = = = = = = = = = = = = = = = = = = = = = WP(C).Nos.37412 of 2009, 130, 845, 1224, 10616, 22592 of 2010, 19435, 19467, 19528, 19580, 21550, 21859, 21919 & 22087 of 2012 = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 19[th ] day of March, 2013 ## Judgment ## Thottathil B.Radhakrishnan, J. - 1.Heard learned counsel for the petitioners, learned Government Pleader and learned standing counsel for Public Service Commission. 2.By notification published on 14.12.2009, PSC invited applications for appointment by direct recruitment to the category of Branch Manager in the District Co-operative Banks in the State of Kerala. Last date for submission of applications in terms of that notification was 13.1.2010. The qualifications prescribed as per that notification were in terms of the relevant statutory rules as they then stood. There is no dispute on this. WPC.37412/2009 & con.cases -: 2 :- - 3.B.Com decree with Co-operation as special subject was thereafter included in the statutory rules as an alternate qualification by amendment as per SRO.No.1005/2010. 4.Some of those persons who possessed the aforesaid qualification of B.Com degree with Co-operation as special subject but did not possess the qualifications in terms of the PSC's notification moved this Court by challenging the PSC's notification. In its essence, their plea was that those who have acquired B.Com degree with Cooperation as special subject should also be included for consideration in terms of the PSC's notification issued on 14.12.2009, or otherwise, that notification has to be quashed and has to be issued afresh on the basis of the amended rules. - 5.One among those writ petitions, namely, WP(C). No.8497 of 2012, was dismissed by a learned single Judge on 3.4.2012 holding that the B.Com degree with Co-operation as special subject was WPC.37412/2009 & con.cases -: 3 :- recognised as a qualification for the post only after the PSC's notification was issued and after the last date fixed for submission of applications in terms of that notification. Noting that as on the last date fixed for submission of applications, the petitioner in that writ petition did not possess the qualifications prescribed in the PSC's notification, the writ petition was dismissed holding that the mere fact that at a later point of time, the qualification possessed by a person was recognised as a qualification is not a reason to hold that the said person was qualified and eligible to apply for the post. That judgment of the learned single Judge stands affirmed by the Division Bench by judgment dated 13.4.2012 in W.A.No.793 of 2012. 6.When the captioned matters thereafter came up for consideration before another learned single Judge, it was argued on behalf of the petitioners that the amendment to the statutory rules as per SRO.No.1005/2010 as regards the qualification was WPC.37412/2009 & con.cases -: 4 :- curative in nature and therefore, the principles of law stated by this Court in Rajesh Kumar v. K.P.S.C. [2007(2) KLT 970] which dealt with a prior notification, SRO.No.617/2005, apply. The learned single Judge held that the said issue was not mooted in WP(C).No.8497 of 2012 noted above and therefore, notwithstanding the judgment rendered in that case as affirmed in W.A.No.793 of 2012, such plea of the petitioners deserves consideration. Accordingly these writ petitions are referred to the Division Bench. 7.In Rajesh Kumar (supra), it was held that SRO.No.617/2005 was issued by the Government realising that there is an anomaly. The learned Judge found that the Government's view in the matter was clear even from the Explanatory Note to that SRO. Hence, it was held that SRO.No.617/2005 was curative and rectified, the otherwise vice of arbitrariness and discrimination in SRO.No.369/1999. We have examined the contents of SRO.No.617/2005 which was issued during the pendency of Rajesh Kumar's WPC.37412/2009 & con.cases -: 5 :- case and dealt exclusively with the qualifications. 8.As regards SRO.No.1005/2010 with which we are presently concerned, we proceed to consider the contentions and arguments on behalf of the writ petitioners that it is curative and the arguments to the contrary by the learned standing counsel for the PSC and the learned Government Pleader that the amendments made as per SRO.No.1005/2010 can never be treated as retrospective or merely curative in nature. 9.Looking at the statute, i.e., Kerala Co-operative Societies Act, 1969, for short, the 'Act', it can be seen that the power to make the rules in the nature of the Kerala Co-operative Rules, for short, the 'Rules', is contained in Section 109. That provision specifically authorises the making of rules, prospectively and retrospectively. Such rules have to be published in the Gazette and laid before the Assembly. When the authority to frame rules retrospectively has been specifically WPC.37412/2009 & con.cases -: 6 :- granted to the delegate by the primary legislation, it is open to the Government to make rules to operate retrospectively. SRO.No.1005/2010 does not state that it is retrospective. There is also nothing on its face to decipher that it was intended to be activated with retrospective effect. 10.The amendments made through SRO.No.1005/2010 are varied and multifarious, and deal with different aspects of the Rules, ranging from different prescriptions as to payment of fee, selection matters, recruitment rules and different other aspects; all of which can never be treated as intended to be retrospective. If that were so, the judiciary would not be justified to pick and choose as to which among the contents of SRO.No.1005/2010 could be treated as retrospective. The role of the courts in interpreting the laws would not extend to treat and categorise a statutory provision as retrospective or curative unless there is abundant intrinsic material or explicit reason to WPC.37412/2009 & con.cases -: 7 :- hold so. The situation in hand is not one of casus omissus. 11.With the aforesaid, we now advert to the argument of the learned counsel for the petitioners that many of the aspirants from the Primary Co-operative Sector would have had obtained B.Com(Co-operation) or other Diplomas in Co-operation like HDC, JDC etc., which are inexcusable at the entry point, going by the statutory rules as contained in Rule 186 of the Rules. But, that by itself is not sufficient for us to hold that a situation of arbitrariness has been made out. We say so because, if we were to hold so at this point of time, we can easily foresee many such persons who would be in the field of choice, but had applied in terms of the notification, for the simple reason that those persons bona fide kept away from applying since they did not possess the qualifications prescribed in the PSC's notification. Secondly, even if we attempt to reconcile the situation by providing that the selection in terms of the WPC.37412/2009 & con.cases -: 8 :- PSC's notification dated 14.12.2009 could be confined to vacancies that arose before the date of issuance of SRO.No.1005/2010, likelihood of good number of candidates getting excluded from the competition cannot be ruled out. 12.Bestowing our anxious consideration to the factual situation, the fact of the matter remains that there is nothing in the contents of SRO.No.1005/2010 or any situational situs for us to decipher that the provisions thereof are to be treated as curative; or, to hold that the provisions therein relating to the qualification for appointment operate retrospectively, by necessary implication. For the aforesaid reasons, we answer the reference against the writ petitioners and hold that the provisions of SRO.No.1005/2010, in so far as they relate to the prescription of qualifications, are not retrospective and that the provisions therein relating to amendment of qualifications cannot be treated as curative in WPC.37412/2009 & con.cases -: 9 :- nature and the selection process as per the PSC's notification dated 14.12.2009 has necessarily to go on in terms of that notification in accordance with law. Resultantly, we see no reason to grant any of the reliefs sought for by the writ petitioners, and the writ petitions are dismissed. Thottathil B.Radhakrishnan Judge B.Kemal Pasha Judge aks/sha