TMI Blog1999 (5) TMI 634X X X X Extracts X X X X X X X X Extracts X X X X ..... rities failed to appoint them against the vacancies that arose in the quota earmarked for direct recruits and since only a limited number of candidates have been appointed, they approached the Court for a mandamus and consequential directions. The learned Single Judge of the High Court of Kerala arrived at the conclusion that Rule 5 deals with the subject-matter governed by the Special Rules and both have to be harmoniously read and understood. Therefore, direct recruitment to 20% of the vacancies provided in the Special Rules shall be worked out on the basis of the provisions contained in Note 3. The Court also held that there is no repugnancy between Kerala Agricultural Income Tax and Sales Tax Rules Category 3 and Rule 5 of the General Rules. 3. The said judgment and order was set aside in writ appeal. The Division Bench of the High Court held that the amendment brought to the General Rules [Kerala State and Subordinate Service Rules] as per notification dated 5th December, 1992 would take away the rights of the petitioners for appointment against 20% of the successive substantive vacancies arising in the cadre of Sales Tax Officers and that the view taken by the Government w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s vacancies of short duration. (3) Whenever a ratio or percentage is fixed for different methods of recruitment/appointment to a post the number of vacancies to be filled up by candidates from each method shall be decided by applying the fixed ratio or percentage to the cadre strength of the post to which the recruitment/transfer is made and not to the vacancies existing at that time. 5. The aforesaid Note (3) was added by the Rules called the Kerala State Subordinate Services (Amendment) Rules, 1992. The object and reason for amending the said rule is mentioned in the Explanatory Note which inter alia provides that for various posts in the Departments of Government, appointments are to be made by direct recruitment and by transfer; the vacancies are filled up on the basis of ratio or percentage fixed in the respective special rules; Government considered it necessary to clarify that proportionate vacancies to be filled up by different methods should be calculated on the basis of the cadre strength and not on the basis of total number of vacancies. For achieving the said objects the Rules were amended. 6. Further, the aforesaid Rules are to be construed along with the & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... must give way to the general provision. (Re: Maharaj Shree Umaid Mills Limited v. Union of India [1963]48ITR186(SC) . Dealing with similar situation in the case of Dalmia Dadri Cement Co. Ltd. v. The Commissioner of Income Tax [1958]34ITR514(SC) , this Court observed: Now the rule of construction expressed in the maxim generalia specialibus non derogant is well settled, and we shall also assume in favour of the appellant that the agreement Ex.A, is a special law in the nature of a private Act passed by the British Parliament, and that accordingly s, 3 of the Ordinance should not be construed, unless the contrary appears expressly or by necessary implication, as repealing the provisions of Ex. A. But ultimately, the question is what does the language of the enactment mean? 9. If the language is clear and unqualified, general rule would prevail. 10. Similarly, in the case of Ajay Kumar Banerjee v. Union of India (1984)ILLJ368SC , the Court dealt with the rule of interpretation with regard to the general law as well as the special law and held as under: The general rule to be followed in case of conflict between two statutes is that the later abrogates the earlier one. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statute- maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place. 13. Learned Counsel for the appellant also referred to Craise on Statute Law, page 381 which is as under: ( iii) Special enactment repealed by implication if utterly repugnant to subsequent general Act. But the rule must not be pressed too far, for, as Bramwell L.J. said in Pellas v. Neptune Marine Insurance Co. (1980) 5 C.P.D. 34 a general statute may repeal a particular statute And if a special enactment, whether it be in a public or a private Act, and a subsequent general Act are absol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nor by transfer but is both by direct recruitment and by transfer. It is made specifically applicable to the 'special rules'. Clause (a) provides that the proportion or order will be applicable only to substantive vacancies in permanent cadre; Clause (b) provides that direct recruitment shall be only against substantive vacancy in permanent cadre; and recruitment to all other vacancies shall be made by transfer. Note (1) and (2) provide that all permanent vacancies and temporary vacancies except those of short duration shall be treated as substantive vacancies. Note (3) specifically provides that 'whenever' a ratio or percentage is fixed (in special Rules) for different methods of recruitment to a post, the number of vacancies to be filled up by candidates from each method is to be decided by applying a fixed ratio or percentage to the cadre strength of the post to which the recruitment is made and not to the vacancies existing at that time.' Therefore, the entire Rule 5 deals with the special rules which provide for filling up of the vacancies to any service, class or category by direct recruitment and by transfer. The language of Note (3) is crystal clear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e might not survive, as all throughout the proportion or ratio would be maintained. Further, by adding Note (3) to Rule 5, the object of the Government was to achieve uniformity of calculating the successive substantive vacancies for appointment. 17. The learned Counsel for the respondent vehemently contended that as per Rule 2 of the General Rules quoted above, if there is any repugnancy between the general rule and the special rules applicable to any particular service, then, special rules are to prevail in respect of said service over the provisions in the general rules. It is submitted that Rule 5 and Note (3) of that Rule are part of the General Rules and, therefore, the special rule in the Kerala Agricultural Income Tax and Sales Tax Services prescribing method of appointment would prevail. It is contended that the said rule specifically provides that 20% of the 'successive vacancies' shall be filled up by direct recruit and remaining shall be filled by transfer. It is, therefore, submitted that whenever substantive vacancies are to be filled in, 20% of the said vacancies are required to be filled in by direct recruit and remaining vacancies are required to be fill ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing Rules with effect from 5th December, 1992 while list of persons selected by Public Service Commission for appointment to the Cadre was published on 13th May, 1995. Therefore, persons who were selected and whose names are included by the Public Service Commission in the select list would have no right to say that their recruitment should be governed by the Rules which were existing prior to 1992. However, it has been contended by learned Counsel for the selected candidates whose names are appearing in the Select List that process of recruitment started on 11th August, 1987 when the Public Service Commission issued advertisement inviting applications for the post of Sales Tax Officers by direct recruitment (The number of notified vacancies was 16) and that their appointments should be made on the basis of the Rules existed at the relevant time. It is submitted that the amended Rules would govern the future selection and will have no retrospective effect. In our view, in the present case, there is no question of giving retrospective effect to the Rules which are amended in 1992. Its effect is to be given after its amendment and in the present case after 1995 when the selection pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioned therein. As stated earlier, in the present case selection process was not over till the list of selected candidates was published by the Public Service Commission on 13th May, 1995 and the impugned Note (3) does not change qualifications, method of appointment, age or other conditions of recruitment. It only fills up the lacuna or clarifies the ambiguity prevailing for computation of ratio or percentage for appointment by direct recruitment and by transfer. Because of the aforesaid factual position, in our view, it is not necessary to discuss judgments cited by the learned Counsel for the respondents. However, we would refer to one decision rendered by this Court in Rajasthan Public Service Commission v. Chanan Ram and Anr. MANU/SC/0157/1998 : [1998]1SCR1099 , wherein after considering the decision in the P. Ganeshwar Rao v. State of Andhra Pradesh MANU/SC/1375/1998 : (1998)8SCC740 , this Court held that if the recruitment rules underwent amendment prior to actual filling up of the advertised posts, the amended rules would apply . The Court also referred to a three-Judge Bench judgment of this Court in Jai Singh Dalai v. State of Haryana MANU/SC/0692/1993 : 1992(3)SCALE552 , ..... X X X X Extracts X X X X X X X X Extracts X X X X
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