Suveen S. Kamath vs State of Kerala

Thottathil B. Radhakrishnan, J.—Petitioner challenges an order of the Kerala Administrative Tribunal. Heard the learned counsel for the petitioner and the learned Senior Government Pleader.

In his pursuit for employment, petitioner applied for being considered to the post of Junior inspector/Auditor in the Co-operative Department in the Government of. Kerala in response to the relevant notification issued by the Kerala Public Service Commission, "P.S.C.", for short. He also made a separate application for being considered for appointment to the post of Clerk/cashier in the District Co-operative Bank, Alappuzha, hereinafter, "D.C.B.", by direct recruitment, in terms of a different notification issued by the P.S.C.

At the first instance, P.S.C. advised for the appointment of the petitioner as Junior inspector/Auditor. The Registrar of Co-operative Societies, for short, "R.C.S.", issued Ext. P1 appointment order on 25.10.2008 and the petitioner joined in that post.

Petitioner was also included in the P.S.C.''s rank list for the post of clerk/cashier in the D.C.B. On 14.5.2010, P.S.C. advised the D.C.B. for petitioner''s appointment to that post. D.C.B. appointed him in that post on 11.6.2010. Petitioner was relieved from the Co-operative Department in Government at his instance on 12.7.2010 and he joined the D.C.B.

Thereafter, on 2.12.2010, the petitioner represented to the R.C.S., seeking permission to rejoin the Co-operative Department as Junior inspector/Auditor. In its nutshell, the claim of the petitioner was to rejoin duty in the Co-operative Department in Government in terms of R. 8 of Part II of Kerala State and Subordinate Services Rules, for short, "K.S. & S.S.R.". R.C.S. rejected that request as per communication dated 7.1.2011. Challenging that, and praying for a direction to the respondents to allow him to rejoin in the Co-operative Department, the petitioner filed a Writ Petition before this Court. R.C.S. filed counter affidavit to the Writ Petition, supporting the impugned decision and contending that R. 8 cannot be pressed into service for the petitioner to come back from the D.C.B. to a Department in Government because D.C.B. is a cooperative society registered under the Kerala Co-operative societies Act, 1969, hereinafter, "K.C.S. Act" and service under it cannot be treated as equivalent to Government service. The Writ Petition was transferred to the Tribunal on its constitution. Tribunal dismissed the transferred application holding that the petitioner is not entitled to invoke R. 8. Hence this Original Petition.

It is argued on behalf of the petitioner that the expanse of R. 8 and the amplitude of the field to which it applies has been narrowly construed by the R.C.S. and the learned Tribunal ignoring the phrase "or for any other reason" in the opening paragraph of that Rule. It is further argued that the fourth proviso and Note I to R. 8 of Part II of K.S. & S.S.R. explaining as to what is "exigency of public service 1, show that the petitioner was statutorily entitled to come back to the Co-operative Department in Government with the support of that Rule. Reference was also made to the decision of the Supreme Court of India in Ali M.K. and Others Vs. State of Kerala and Others, which, among other things, dilated on the scope of the proviso and the utility of a proviso as a legislative tool.

On behalf of the State, the learned Senior Government Pleader, supporting the decision of the Tribunal and that of the R.C.S., argued that R. 8, can be understood only in the manner in which the Tribunal has viewed it and the service in a co-operative society cannot be treated as service which was in exigency of public service.

Rule 8 of Part II K.S. & S.S.R. reads as follows:

Members absent from duty. The absence of a member of a service from duty in such service, whether on leave, other than leave without allowances for talking up other employment on foreign service or on deputation or for any other reason and whether his lien in a post borne on the cadre of such service is suspended or not, shall not, if he is otherwise fit, render him ineligible in his turn-

(a) for re-appointment to a substantive or officiating vacancy in the class, category, grade or post in which he may be a probationer or an approved probationer;

(b) for promotion from a lower to a higher category in such service; and

(c) for appointment to any substantive or officiating vacancy in another service for which he may be an approved candidate;

as the case may be, in the same manner as if he has not been absent. He shall be entitled to all the privileges in respect of appointment, seniority, probation and appointment as full member which he would have enjoyed but for his absence:

Provided that subject to the provisions of Rule 18 he shall satisfactorily complete the period of probation on his return.

Provided further that a member of a service who is appointed to another service and is a probationer or an approved probationer in the latter service, shall not be appointed under clause (c) to any other service for which he may be an approved candidate unless he relinquishes his membership in the latter service in which he is a probationer or an approved probationer:

Provided further that this rule shall not have retrospective effect so as to disturb the decisions taken by the Travancore-Cochin Government in respect of the Travancore-Cochin personnel:

Provided also that this rule shall not apply in the case of a member of a service whose absence from duty in such service is by reason of his appointment to another service, not being Military Service, solely on his own application, unless such appointment is made in the exigencies of public service.

Note.-(1) An appointment made in pursuance of applications invited, sponsored or recommended by Government or other competent authority shall be deemed to be an appointment made in the exigencies of Public Service for the purpose of this rule.

(2) The benefit of this rule shall not be available to a person holding a post in any class or category in a service if his appointment to that post was from a post in another class or category in the same service.

Tribunal took the view that the term "another service" in the fourth proviso to R. 8 is service in the State Government, having regard to the definition of the term "service" in R. 2(1)(5) of Part I K.S. & S.S.R. and that even if the service in D.C.B. is to be presumed to be a service under the State, appointment in D.C.B. cannot be treated as an appointment in exigency of public service. So holding, the Tribunal affirmed the view of the R.C.S. that the petitioner, having been appointed to D.C.B., is not entitled to reappointment in the Co-operative Department in Government in terms of R. 8 of Part II of K.S. & S.S.R.

Rule 8 of Part II of K.S. & S.S.R. provides that the absence of a member of a service from duty in such service, whether on leave, or on deputation or for any other reason shall not, if he is otherwise fit, render him ineligible, in his turn, for the different matters provided in that rule, as if he has not been absent. That provision does not depend upon whether his lien in a post borne on the cadre of such service is suspended or not. However, that rule will not apply where the absence of that member from duty in such service was on account of leave without allowances for taking up other employment on foreign service. The phrase "for any other reason" in R. 8 is sufficient legislative material to hold that a member of a service, except one who had gone on leave without allowances for taking up other employment on foreign service, will be entitled to invoke R. 8. The fourth proviso to that rule provides that the said rule shall not apply in the case of a member of a service whose absence from duty in such service is by reason of his appointment to another service, not being Military service, solely on his application, unless, such appointment is made in the exigencies of public service. Therefore, a member of a service whose absence from duty in such service is by reason of his appointment to Military Service will be eligible to invoke R. 8. The question that immediately arises is as to what would be the meaning of the term "another service" occurring in the fourth proviso to R. 8. When the phrase "not being Military service" is included in that proviso to cull out an exception to the operation of that rule in contradistinction to the term "another service" occurring in that proviso, it has to be understood that for the purpose of that proviso, the term "another service" includes a service other than a State or a Subordinate Service in the State Government, if that were not so, the use of the term "not being Military Service" was not necessary, we converge on this interpretative conclusion because of the fact that the principal part of R. 8 provides its application to those who are absent from duty in a service even on deputation or for any other reason. "Military service" is defined in R. 2(9A) of Part I to mean service in the Armed Forces under the Ministry of Defence, Government of India, whether as a combatant or a non-combatant, for a continuous period of not less than 6 months, but does not include service in para military forces, namely Assam Rifles, Defence Security Corps, General Reserve Engineer Force, Jammu and Kashmir Militia, Lok Sahayak Sena and Territorial Army, such services which are grouped into the definition of the term "Military Service" can never form part of a State or a subordinate service under the State Government. They are entirely within the legislative and executive domain of the Union of India in terms of the distribution of legislative and executive powers in terms of the Constitution of India. Therefore, the use of phrase "not being Military service" in the fourth proviso to R. 8 cannot be treated as creating an exemption or exception or carving out a distinction from the term "another service" which immediately precedes the use of the term "not being Military Service" except where the term "another service" in that proviso is intended to include a service other than a State or a Subordinate Service in the State Government. The term "service" is defined in R. 2(15) of Part I K.S. & S.S.R. to mean a group of persons classified by the State Government as a State or a Subordinate service, as the case may be. If that definition is imported to the term "another service" in the fourth proviso to R. 8, definitely, Military Service should also fall within that term since, otherwise, Military Service is excluded from the term "another service" occurring in that proviso. Therefore, unless the term "another service" occurring in the fourth proviso can also take within its sweep the term "Military service", the rule cannot be operated if the word "service" in the term "another service" in that proviso was to be applied on the basis of the definition of the word "service" in R. 2(15) of Part I K.S. & S.S.R. Therefore, the word "service" in the phrase "by reason of his appointment in another service" immediately preceding the phrase "not being Military service" in the fourth proviso to R. 8 is one to which the definition of "service" as contained in R. 2(15) of Part I K.S. & S.S.R. cannot be applied in the subject or context. The application of that definition clause to the fourth proviso to R. 8 would be repugnant to the context in consideration.

Rule 2 of Part I K.S. & S.S.R. opens by saying that the definitions provided in that rule would apply "unless there is anything repugnant in the subject or context". Even in the absence of an express qualification to that effect, such a qualification is always implied. Repugnancy of a definition arises when the definition does not agree with the subject or context. When the application of the definition to a term in a provision containing that term makes it unworkable, the definition becomes inapplicable to that provision because of the contrary context. See the erudite classic text. Principles of Statutory Interpretation by Justice G.P. Singh, 13th Edition (2012) and the precedents referred to therein, particularly The Vanguard Fire and General Insurance Co. Ltd., Madras Vs. Fraser and Ross and Another, , Knightsbridqe Estates Trust Ltd. v. Byrne ( (1940) AC 613), State Bank of India Vs. Yogendera Kumar Srivastava and Others, , Special Officer and Competent Authority, Urban Land Ceilings, Hyderabad and Another Vs. P.S. Rao, , It is well settled that all statutory definitions or abbreviations must be read subject to the qualification variously expressed in the definition clauses which created them and it may be that even where the definition is exhaustive inasmuch as the word defined is said to mean a certain thing, it is possible for the word to have a somewhat different meaning in different sections of the Act depending upon the subject or context. That is why all definitions in statutes generally begin with the qualifying words, ''unless there is anything repugnant in the subject or context''. The meaning to be ordinarily given to a term which has been defined in a particular legislation is that given in the definition clause. But this is not inflexible and there may be sections in that legislation where the meaning may have to be departed from on account of the subject or context in which the word had been used and that will be giving effect to the opening sentence in the definition section, namely ''unless there is anything repugnant in the subject or context''. In view of that qualification in the definition clause, the court has not only to look at the words but also to look at the context, the collocation and the object of such words relating to such matter and interpret the meaning intended to be conveyed by the use of the words under the circumstances - see Vanguard Fire and General Insurance Co. Ltd., Madras (supra) followed in Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and Others, . The aforesaid position was considered in Commissioner of Sales Tax, State of Gujarat Vs. Union Medical Agency, whereof, the Apex Court reiterated and laid down well settled principle that when a word or phrase has been defined in the interpretation clause, prima facie, that definition governs whenever that word or phrase is used in the body of the statute, but, where the context makes the definition clause inapplicable, a defined word, when used in the body of the statute may have to be given a meaning different from that contained in the interpretation clause and it has to be differently construed and applied. This is why all definitions given in an interpretation clause are, therefore, normally enacted subject to the usual qualification "unless there is anything repugnant in the subject or context" or "unless the context otherwise requires". Even in the absence of an express qualification to that effect, such a qualification is always implied. Though we have stated earlier that this is the law, we reiterate it, in view of the profuse support for this proposition by judicial precedents, that too, by the Hon''ble Supreme Court, which amount to law laid in terms of Art. 141 of the Constitution of India.

The language of a proviso is to be construed in relation to the subject-matter covered by the section to which the proviso is appended. While a proviso does not travel beyond the provision to which it is a proviso, and, is intended to carve out an exception to the main provision to which it has been enacted as a proviso, the operation of a proviso has to be clearly deciphered for the application of that proviso, because the normal function of a proviso is to except something out of the main provision to which that proviso is made, or to qualify something enacted therein which, but for the proviso, would be within the purview of the enactment - See for support Dwarka Prasad Vs. Dwarka Das Saraf, , M/s. Mackinnon Mackenzie and Co. Ltd. Vs. Audrey D''costa and another, , Ram Narain Sons Ltd. Vs. Asst. Commissioner of Sales Tax and Others, and Kedarnath Jute Manufacturing Co. Vs. Commercial Tax Officer, Calcutta and Others, .

In the context and the setting in which the fourth proviso to R. 8 is made, the term "another service, not being Military Service" definitely takes within its sweep, services other than the State or a Subordinate Service in the State Government, except those members of a State or a Subordinate service in the State Government who were absent from duty on leave without allowances for taking up other employment on foreign service. It will definitely take in those who are absent from the Service or a Subordinate Service in the State Government for any reason other than those specifically excluded in the opening paragraph of R. 8 of Part II K.S. & S.S.R.

The next issue is as to whether appointment of the petitioner to the D.C.B. is an appointment made in the exigencies of public service. Note I to R. 8 provides that an appointment made in pursuance of applications invited, sponsored or recommended by Government or other competent authority shall be deemed to be an appointment made in the exigencies of public service, it is a deeming provision, if the factors enjoined as per that Note are satisfied, the legislative compulsion is that it shall be deemed to be an appointment made in the exigencies of public service for the purpose of R. 8. The purpose of that legal fiction is to bring such appointees as would fall under Note I also into the field of operation of R. 8 of Part II K.S. & S.S.R. thereby extending to them the benefit of the eligibility in terms of that rule. Having thus ascertained the purpose of that deeming provision, the court has to apply that legal fiction, it is well settled that when a state of affairs is legislatively ordained to be deemed, that shall be so done and such fictional status shall pervade unconditionally and freely within the domain to which such presumptive status applies, see for support The State of Bombay Vs. Pandurang Vinayak Chaphalkar and Others, , American Home Products Corporation Vs. Mac Laboratories Pvt. Ltd. and Another, , Smt. Parayankandiyal Eravath Kanapravan Kalliani Amma and others Vs. K. Devi and others, , Shri Mundri Lal Vs. Smt. Sushila Rani and Another, , Sri Jagadguru Kari Basava Rajendraswami of Gavimutt Vs. Commissioner of Hindu Religious Charitable Endowments, Hyderabad, and Manorey @ Manohar Vs. Board of Revenue (U.P.) and Others, , following the of quoted words of Lord Asquith in East End Dwelling Co. Ltd. v. Finsbury Borough Council ( 1952 AC 109 (HL)) that "if you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also image as real the consequence and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it. The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs." Therefore, if an appointment is made in pursuance of applications invited by "other competent authority", that is sufficient foundation to operate the deeming provision contained in that Note. P.S.C. is the competent authority in terms of the provisions of the Kerala Co-operative Societies Act and the rules thereunder to invite applications for appointments to the Clerk/cashier in the D.C.B. The appointment of the petitioner in the D.C.B. is pursuant to the applications invited by the P.S.C. which is the competent authority to invite such applications, if that were so, the rigor of the fiction created by the legislative rule enjoins the petitioner''s appointment in D.C.B. as one made in exigencies of public service. That legal effect cannot be whittled down by any reasoning process depending upon whether the resultant situation of a person returning to the State Government service would amount to deprivation of rights or expectations of any other person.

Hence, the service in the D.C.B. falls within the term "another service" in the fourth proviso to R. 8 and the appointment of the petitioner in the D.C.B. pursuant to the applications invited by the P.S.C. shall be deemed to be an appointment made in the exigencies of public service for the purpose of R. 8 of Part II of K.S. & S.S.R. For the aforesaid reasons, the findings of the learned Tribunal, contrary to the above, are not in consonance with the provisions of R. 8 of Part II of K.S. & S.S.R., including its fourth proviso and Note I to that rule. The decision of the R.C.S. affirmed by the learned Tribunal is also not sustainable. Hence, the impugned order of the Tribunal and the decision of the R.C.S. impugned before the Tribunal are liable to be set aside and the petitioner is entitled to the relief that he had sought for in the Writ Petition that was transferred to the Tribunal in the result, this Original Petition is allowed quashing the order of the Kerala Administrative Tribunal in T.A. No. 1870 of 2012 and the decision contained in the communication dated 7.1.2011 issued by the R.C.S., impugned in the transferred application before the Tribunal. It is declared that the petitioner is entitled to re-appointment as Junior Inspector/Auditor in the Co-operative Department in the Government and all other matters as enjoined by R. 8 by treating him as eligible in his turn, if he is otherwise fit. The R.C.S. is directed to reconsider the case of the petitioner in the light of what is aforesaid and the declarations contained herein and issue a decision on the petitioner''s request on his representation dated 2.12.2010 which was Ext. P7 in W.P.(C) No. 3983 of 2011 of this court (T.A. No. 1870 of 2012 of the Kerala Administrative Tribunal), within an outer limit of 45 days from the date of receipt of a copy of this judgment, without fail. The petitioner is directed to mark appearance in the Office of the R.C.S. on 28.4.2014.