Kerala Public Service Commission vs K.N. Radhamani & Ors. Etc.Etc.

Dismissing the appeals, the Court

HELD: 1. The judicial exercise this Court has 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. This Court does 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, this Court 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. KPSC’s 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 Cooperative 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 prerevision scales of pay. On this count, the Commission’s 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. [Para 22][979-F-H; 980-A-C]

2. The 1982 circular read with the Service Regulation for employees of the Co-operative Banks reflected that there was no requirement of having a benchmark pay level for the posts of clerk/cashier under applicable rules for non-graduate in-service candidates to apply for the subject- posts. Section 109 of the 1969 Act empowers the State to make rules for any class of societies. The 1988 Service Regulations, however, has been made specifically for employees of Districts/Central Co-operative Banks of Kerala. So, this is a special class for Co-operative Societies. The circular of 1982 also refers to certain categories of co- operative institutions such as Kerala State Co-operative Bank, Primary Land Mortgage Bank and Primary Agricultural Credit Societies etc. The Commission has accepted the Rule making power under Section 80(3) under the Act before the Full Bench while defending their action on the basis of the GO dated 30th September, 1986. The GO dated 23rd March, 1988 ought to be attributed to the same Rule making power which does not stipulate a floor-level pay for the advertised posts to enable nongraduate candidates’ participation in the recruitment process thereof. For determining the educational qualification of the inservice candidates the State Government has proceeded by issuing various 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. [Para 23][980-C-H; 981-A-B]

3. Now turning to the Coordinate Bench decision delivered in the case of Valsala Devi. 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 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. This Court has gone through the Bench decision from which the appeal arose and this Court does 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. 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, interalia, 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). [Para 24][981-B-H; 982-A]

4. 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. [Para 25][982-B-D]

5. In these circumstances, in opinion of this Court, 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. This Court does 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 opinion of this Court, the Coordinate Bench decision would not constitute a binding precedent so far as the present set of proceedings is concerned. In these circumstances, the five appeals of the Commission are dismissed. [Para 25] [26-982-D-G]

State Of U. P. v. Manbodhan Lal Srivastava AIR 1957 SC 912 : [1958] SCR 533 – referred to.

Valsala Devi v. Leela Bhai (2002) 3 KLT SN 18; Public Service Commission v. Ramesan (2005) SCC Online Ker 297 – referred to.