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

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.1802-1806 OF 2010

KERALA PUBLIC SERVICE COMMISSION ...APPELLANTS(S) VERSUS K.N. RADHAMANI & ORS. ETC.ETC. ...RESPONDENT(S)

WITH TRANSFERRED CASE (CIVIL) NO. 60 OF 2014 WITH CIVIL APPEAL NO. 2822 OF 2010 WITH CIVIL APPEAL NO. 2823 OF 2010

JUDGMENT

ANIRUDDHA BOSE, J.

These five appeals and the connected matters relate to Signature Not Verified Digitally signed by R Natarajan Date: 2021.09.08 controversy over the qualification criteria for appointment to 16:33:41 IST Reason:

the posts of clerk/cashier in different cooperative banks in

1 the State of Kerala from in-service category. The dispute is

as to whether an applicant from that category for the said

posts, which carry starting pay beyond Rs. 250/- per

month, was required to have minimum educational

qualification of graduation or not. As per Rule 187 of the

Kerala Co-operative Societies Rules, 1969 framed by the

State Government in exercise of power conferred on it by

Section 109 of the Kerala Co-operative Societies Act, 1969

(the 1969 Act) for appointments to apex societies or central

societies, 50% of the vacancies are required to be reserved

for the employees of the member societies of the respective

apex society or central society. The incumbents from such

in-service categories, however require minimum regular

service of three years in any of the cadre of such society. It

is not in dispute that the posts advertised came within the

fold of the classes of societies to which the said Rules apply.

Rule 186 thereof, however stipulates that for appointment to

posts carrying monthly pay of Rs.250/- and above, the

applicants are required to be graduates, i.e. have bachelor

degree. There are certain other eligibility criteria prescribed,

but in these proceedings the lis is on the point as to

2 whether the in-service candidates required graduation or

not. Contention of the in-service candidates is that for

them, SSLC or equivalent qualification would be sufficient-

which essentially means school clearance certificates. The

said 50% reservation rule was applicable to the advertised

posts. A Full Bench of the Kerala High Court comprising of

three Hon’ble Judges, on reference, inter-alia, held that Rule

186 of the Kerala Co-operative Societies Rules (the said

Rules) which prescribe the floor-level pegging of pay to

Rs. 250/- in respect of the posts to which recruitment was

to be made was not workable as there was no employee with

basic pay of Rs. 250/-. The Full Bench referred to another

set of notifications and Regulations in holding that such

stipulation on graduation for the subject–posts was

unsustainable in law. The Kerala Public Service

Commission (KPSC), being the recruiting body, is contesting

this finding in these proceedings. There are two employment

notifications involved inviting applications for the subject-

posts, one dated 26th October, 1999 and the other of 25th

April, 2006. The aspirants for the said posts, who are the

parties to these proceedings were mostly applicants in

3 relation to the 2006 employment notification. The 1999

notification specified the following qualification criteria

contained in clause 7 of the employment notification:-

“7. Qualification :-

1. B.A./B.Sc./B.Com with HDC or JDC or B.Com with Co-operation or B.Sc. (Co-operation and Banking) of the Kerala Agricultural University.

2. Must have three years regular service in the respective cadre in the Primary Co-operative Society as experience.”

So far as the notification dated 25th April, 2006 is

concerned, the qualification criteria was contained also in

Clause 7 thereof:-

“7. Qualifications:-

1. B.A/B.Sc./B.Com with HDC or JDC OR B.Com with Co-operation OR B.Sc (Co-

operation and Banking) of the Kerala Agricultural University.

2. Must be a regular employee who has completed not less than three years regular service in any cadre and continuing in service in a Member Society/Primary cooperative Society affiliated, to the respective District Co- operative Bank.

(The employee should be in the service of the society not only on the date of application but also on the date of appointment.)”

2. We are concerned in these proceedings with two

provisions of the 1969 Act, both conferring power on the

State Government to make rules and these provisions are 4 Section 80 and Section 109 of the said Act. Section 109 (1)

and sub-clause (2) (xv) of the Kerala Co-operative Societies

Act lays down:-

“109. Power to make rules:- (1) The Government may, for the whole or any part of the State and for any class of societies, after previous publication, by notification in the Gazette, make rules (either prospectively or retrospectively) to carry out the purpose of this Act.

(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:-

xxx xxx xxx (xv) the qualifications of employees of societies xxx xxx xxx”

Section 80(3) also empowers the State Government to

classify the societies according to their type and financial

position. Section 80(3) at the material point of time stood

as:-

“80(3) The Government shall, in consultation with the State Co-operative Union, make rules (either prospectively or retrospectively) regulating the qualification, remuneration, allowances and other conditions of service of the officers and servants of the different classes of societies specified in Sub-S. (1).”

5

3. Rule 186(1) of the 1969 Rules, inter-alia, specifies:-

“186. Qualifications: (1) No person shall be eligible for appointment in any post unless he possesses the qualifications prescribed for the post as shown below:-

xxx xxx xxx

(ii) Other S.S.L.C. or its posts supervisory equivalent and and Ministerial successful other than completion of those requiring the Sub Personal Technical Co- operative Qualifications, Training the Starting Course(Junior pay which is Diploma in below Rs. 250. Co- operation)

xxx xxx xxx”

4. Rule 187 thereof deals with reservation of in-

service candidates, substance of which we have

already referred to. This Rule as quoted in the

judgment under appeal reads:-

“187. Vacancies in Apex Society or Central Societies.-

Notwithstanding anything contained in Rule 186, in

6 appointments to apex societies or central societies, 50% of the vacancies shall be reserved to the employees of the member societies, of the respective apex society or central society as the case may be, having a minimum regular service of 3 years in any of the cadre and having the required qualification for the notified posts in the apex society or central society.”

At the material point of time, when the employment

notifications for the posts of clerk or cashier were published,

they carried starting pay beyond Rs. 250/- per month. This

fact is not in dispute.

5. The applications of the respondents in the first set of

appeals as in-service candidates for the said posts were

rejected. Such rejection orders were assailed in the High

Court and those proceedings give rise to Civil Appeal Nos.

1802-1806 of 2010. The applicants did not possess

graduation in those cases. In Civil Appeal No. 2822 of 2010,

the candidates are appellants and come from the same

category i.e. in-service non-graduates and their candidature

7 was rejected on the ground of laches. The plea of the

appellants (in-service non-graduate candidates) in Civil

Appeal No. 2823 of 2010 also stood rejected mainly on the

same ground, i.e. laches. There is also a transferred matter,

registered as Transferred Case (C) No. 60 of 2014, in which

the writ appeal by the Commission was transferred to this

Court. The respondent-writ petitioner therein, who was not a

graduate, was successful before the Single Judge. In the

Transferred Case, however, the writ petitioner had a

provisional degree of graduation when he applied for the said

post.

6. Apart from these Civil Appeals, there are three

Interlocutory Applications. I.A. No. 2 of 2012 has been

taken out in connection with Civil Appeal No. 1802 of 2010,

and this application has been filed by a set of candidates

belonging to scheduled castes/scheduled tribes. They claim

to have had high positions in the rank list and are aggrieved

as they were not appointed as clerks in the District Co-

operative Banks because of pendency of Civil Appeal Nos.

1802-1806 of 2010. These applicants want to intervene in

the said Civil Appeal. In I.A. No. 82851 of 2021, also taken

8 out in connection with the first set of five appeals, the

applicants are in-service candidates who are not graduates.

They seek to intervene in these appeals. The third

Interlocutory Application (registered as I.A. No.84340 of

2021) is by respondent no. 2 in Civil Appeal No. 1805 of

2010. It has been pleaded that he was included in the

select list by KPSC but the appointment process was frozen

in his case. Subsequently, he had participated in a different

selection procedure and was appointed as a Class IV

employee in District Co-operative Bank, Alappuzha. He has

been promoted to the post of clerk in the year 2017. He

wants his selection to be treated as per his earlier selection

so that his seniority is fixed on that basis with

consequential financial benefits.

7. The scale of pay of different categories of posts have

been shown in Appendix III to the 1969 Rules, which were

framed under Section 109 of the Act. The said appendix

reads:-

Sl. Classifica Classificat Staff Pattern Scale of pay tion of the ion Designation Society according No. No. of Rs.

according to Posts financial

9 to type position

(1) (2) (3) (4) (5) (6)

1. Co- Cashier/ 2 210-15-285-20- operative Custodian 385-25-510-30- Banks 720

(b) State 160-10-200-15- Co- 290-20-450 operative Bank

25 150-10-200-15- Clerk Grade 290-20-410 I

Clerk Grade II

3

A Class Head Office (Common As fixed by to all Government (b) branches) from time to Central time Co- operative Banks (District Co- operative Banks Staff in B Class Section

1 (Acounts Clerks- & Billing As fixed by Government from time to 3 time (Personnel & General)

1 (Planning &

10 Developme nt

2 Loan and Advances

1 Inspectio n

3 As fixed by Industrial Government & Housing from time to C Class time Staff for 11 (Total) Branches

4. Clerk

Grade A 5. Cashier As fixed by Government from time to time

4. Clerk

5. Cashier As fixed by Government Grade B from time to time

3. Clerk

As fixed by Grade C Government from time to time

8. Several writ petitions were filed in the High Court of

Kerala by the SSLC qualified in-service candidates over

rejection of their candidature. The KPSC had taken the

11 stand, which is also recorded in the Full Bench judgment,

that since the starting pay to the subject-posts was beyond

Rs.250/-, they ought to have had cleared graduation to be

eligible for consideration to such posts. In the case of

Valsala Devi v. Leela Bhai [(2002) 3 KLT SN 18], a Division

Bench of the Kerala High Court had sustained the stand of

the KPSC that the scale of pay as on the date of recruitment

should be the criteria for the purpose of determination of

the qualification in terms of Rule 186 (1). This case dealt

with the question of promotion and it was not a case of

direct recruitment of in-service candidates. The same view

was followed by the Division Bench in the case of Public

Service Commission v. Ramesan [(2005) SCC Online Ker

297]. In this case, plea of in-service candidates for direct

recruitment was rejected. The correctness of the view of the

Division Bench in the case of Ramesan (supra), however,

was doubted in Writ Petition Nos. 13921, 20776, 22072,

22211 and 23157 of 2006 filed before the High Court and

these matters were referred to the Full Bench. In the

judgment delivered on 24th October, 2007, which is under

appeal, the Full Bench of the Kerala High Court upheld the

12 contention of the in-service candidates (who were not

graduates) to be considered for recruitment to the posts of

clerk/cashier in different District Co-Operative Banks.

Referring to various administrative orders and notifications

which were relied on by the respective parties, the Full

Bench held:-

“7. As held by this court in Abdul Rasheed v. Kerala Public Service Commission (2002 (3) KLT 405) & Public Service Commission v. Abdul Rasheed (2007 (3) KLT 881) P.S.C has no power to go beyond qualification prescribed by the rule. Hence, considering Rule 186, Appendix III to KCS Rules, Ext.P2 and Ext.P5 regulation as amended by Ext.P6, we were of the opinion that petitioners who had qualification of S.S.L.C with JDC and three years continuous experience are entitled to write the test under the 50% quota reserved for in-service candidates if they are otherwise eligible and rejection of their candidature for lack of qualification cannot be sustained. In Ramesan’s case (supra) Ext.P5 regulation was relied on as a rule made under Section 80(3), but it was not pointed out that Ext.P5 was amended by Ext.P6. Since Ext.P5 was amended by Ext.P6, Ramesan’s case is more applicable. Ext.P6 is still valid. We also note that by interim order of this court dated 3/10/2007 we have allowed the petitioners to participate in the test provisionally if test is conducted subject to the result of the writ petitions. It is submitted that the test is yet to be conducted. So, petitioners herein also shall be allowed to write the test, if they are not otherwise ineligible. Ext. P1 notification was published in the gazette dated 25.4.2006.

More than one and a half years have

13 passed. We make it clear that W.P.(C)13921/2006 & Connection those who have not approached this court will not get the benefit as they are guilty of laches”

9. There were certain parallel developments in the

litigation course, which also we have to address in this

judgment. The judgment in the case of Valsala Devi (supra)

was carried up in appeal before this Court by the

unsuccessful candidates. By an order passed on 29th

January, 2008, the said appeal (Civil Appeal No. 6734 of

2003) was dismissed by a Coordinate Bench of this Court.

The text of the order of this Court dismissing the said

appeal is reproduced below:-

“Having heard the learned counsel for the appellants at great length, we see no reason to interfere. The appeals being devoid of merit are accordingly dismissed. Civil Appeal Nos.917, 916 and 915 of 2008, SLP(C)Nos.25202/2005, 5723/2006 and 2703/2007.

Leave granted.

Heard the learned counsel for the appellants at great length. The appellant has challenged the advertisement dated 26.10.1999 before the High Court. The learned Single Judge dismissed the petition on the ground of laches. The appeal before the Division Bench of the High Court met with the same fate. Hence these appeals.

In the advertisement the qualification prescribed for the post of Cashier-cum-Clerk in the District Co-operative Societies is B.A./B.Sc./B.Com with HDC or JDC or B.Com with Co-operation or B.Sc. (Co-operation and Banking) of the Kerala Agricultural University. It is the contention of the counsel that in the relevant service rules the qualification prescribed is S.S.L.C. with J.D.C. and

14 three years experience in the affiliated Primary Co-

operative Society. According to the counsel the qualification prescribed in the Advertisement is contrary to the qualification prescribed in the service rules and discriminatory.

We see no substance in the contention. Since, the advertisement has been issued for all the candidates, we do not see any substance in the contention of the appellant that he has been thereby discriminated. We see nothing wrong in prescribing higher qualification in the advertisement.

These appeals being devoid of merit are accordingly dismissed.”

10. As we have already indicated, the Full Bench judgment

was delivered on 24th October 2007. It, however, does not

appear that the Full Bench decision was brought to the

notice of the Coordinate Bench, when the appeal was heard

and ultimately dismissed. There is no discussion on the Full

Bench judgment of the Kerala High Court in the decision of

the Coordinate Bench. We are referring to the said

proceedings as on behalf of the KPSC, it has been contended

that the decision of the Coordinate Bench would be a

binding precedent so far as these appeals are concerned as

the question that arose in the case of Valsala Devi (supra)

was identical to the question of law involved in the case of

Ramesan (supra) before the High Court. The Division

Bench in the case of Ramesan had followed the decision of

15 a Bench of equal strength in the case of Valsala Devi

(supra).

11. Learned Counsel for the candidates have referred to a

communication made by the Registrar of Co-operative

Societies Trivandrum on 15th June, 1982, bearing no. E(M)

1.1062/82. This communication is quoted below:-

“The Scale of pay of various categories of posts in Appendix III to KCS Rules 1969 have been revised as per different executive orders of Government in respect of certain categories of Co-op. institutions such as Kerala state Co-op. Bank, Kerala Co-operative Central and Mortgage Bank Central Co-operative Bank, Primary Land Mortgage Banks and Primary Agricultural Credit Societies etc. The different Govt. orders as per which the scale of pay have been thus revised have no effect of amending the relevant rules (appendix III to KCS Rules). Steps are being taken to get the rules suitably amended.

It is therefore clarified that, pending amendment of the Rules, the qualification under Rules 186 of K.C.S. Rules for different categories of posts, have to be decided based on the pre-revision scales of pay which is prescribed in appendix III to the KCS Rules 1969.

Sd/-

For Registrar to Co-op.

Societies”

12. This was followed by a Regulation brought into effect

by GO(MS)79/86/Coop. dated 30th September, 1986. The

16 substance of this GO(1986) would appear from para 13

judgment of the Division Bench of the High Court in the

case of Ramesan (supra). It reads:-

“When we go through G.O. No. 79/86/Co-op. dated 30-9-1986, we see that the Government have approved the rules appended to the said Government Order and has prescribed in R. 8 thereof separate qualifications for different categories of posts including that of Clerks/Cashiers notified in Ext. P-1. Qualifications are prescribed differently for direct recruitment and for promotion. The said Rules provide that “for Direct Recruitment the qualification for the post of Clerks/Cashiers will be BA, B. Sc. or B. Com. with H.D.C/J.D.C. or B. Com. with Cooperation or B. Sc. (Co-operation and Banking) of Kerala Agricultural University.”

13. Another service Regulation came into effect by

G.O.(MS) 9/88/Co-op. dated 23rd March, 1988 and clause 8

of the 1986 Regulation dealing with qualification criteria

was substituted. The Regulation has been annexed as “R1”

to the counter-affidavit (at page 95 of composite paperbook)

filed on behalf of the respondents in the first set of Civil

Appeals. The first clause thereof specifies that these

Regulations cover employees of District/Central Co-

operative Banks of Kerala. In this annexure, however, the

17 source of power under which the Regulation has been

framed has not been disclosed. This clause reads:-

“8. Qualifications.

“No person shall be eligible for appointment in any post noted below unless they possess the qualification prescribed for the post. “(i) Clerks/Cashier “(a) For direct recruitment the qualification for the post of Clerks/Cashiers will be B.A., B.Sc., or B.com with H.D.C./J.D.C. or B.Com with Co- operation or B.Sc. (Co-operation and Banking) of Kerala Agricultural University.

“(b) In the case of the post reserved for employees of the affiliated Primary Co- operative Societies the qualification will be S.S.L.C. with J.D.C. and three years experience in affiliated Primary Co-operative Society.

“(c) The sub-staff of the Bank will be eligible for promotion as Clerk, if they possess S.S.L.C. with J.D.C. and minimum three years experience.” (emphasis added).

The in-service candidates primarily relied on these

Regulations before the Full Bench.

14. The State has filed a counter-affidavit to the special

leave petition, which transformed into civil appeal on leave

being granted. This counter affidavit has been affirmed by

one B. R. Mohan Kumar, Law Officer to the Government of

Kerala on 17th February, 2010. The State has prayed for 18 dismissal of the special leave petition in this counter-

affidavit. Referring to Rule 186, it has been stated therein

that the same has to be decided based on the scale of pay as

on 01.01.1974 which is prescribed in Appendix III to the

said Rules. It is also the State’s stand, as outlined in this

affidavit, that qualification for the posts of clerk/cashier in

the District Co-operative Banks has not been specifically

prescribed in the said Rules. The GO of 1988 has also been

referred to and basic stand of the State appears to be that

there is no separate qualification prescribed in the

recruitment rules for the District Co-operative Banks.

15. In this factual background we are to examine the rival

cases. We shall first address the question as to whether the

point of law raised in these appeals stands already

concluded or not in view of the Coordinate judgment in the

case of Valsala Devi (supra).

16. The proceedings out of which that appeal arose related

to an earlier advertisement dated 26th October, 1999. In

these cases, however, we are primarily concerned with the

advertisement of 2006. Moreover, the case of Valsala Devi

19 (supra) was in relation to promotion whereas in the present

set of proceedings, the vacancies are to be filled up by direct

recruitment from in-service candidates. Thirdly, the

reasoning on which the High Court had rejected the plea of

the candidates was laches, as recorded in the Coordinate

Bench judgment. Only in Civil Appeal No. 2822 of 2010, the

appellants had applied for the posts in question both under

the 1999 and 2006 advertisements. They were not

successful before the High Court on the ground of having

filed a belated writ petition, after delivery of the Full Bench

decision.

17. The Coordinate Bench in the case of Valsala Devi

(supra) had sustained the stand of the Commission on two

grounds. The first was that the advertisement had been

issued for all the candidates. The rationale appears to be

that the appellant had not been discriminated against.

Secondly, the Court found nothing wrong in prescribing

higher qualification in the advertisement by the KPSC.

18. So far as Civil Appeal Nos. 2822 and 2823 of 2010 are

concerned, we do not find any error in the judgment of the

20 High Court in rejecting the writ petition on the ground of

delay. In disputes related to service, particularly in the field

of recruitment, fate of a large number of candidates are

involved. An aspirant for the posts advertised has to

demonstrate promptitude in approaching the Court if in his

perception, the eligibility criteria is fixed beyond that

stipulated by law. Delayed arrival of a candidate in the

judicial forum can have chaotic consequences if decisions

taken on the basis of the disputed eligibility criteria are

required to be upset much after the selection process is

over. The High Court has rightly exercised its discretion in

dismissing the said two writ petitions. We dismiss both the

appeals.

19. So far as rest of the appeals are concerned, these arise

out of the 2006 advertisement. The rejected candidates had

instituted the proceedings immediately after their

applications were rejected. Though the candidates did not

challenge legality of the notified eligibility criteria, there was

no inordinate delay in questioning the Commission’s action.

So far as decision of the Coordinate Bench in Valsala Devi

21 (supra) is concerned, there is no doubt that the said

judgment was delivered in respect of a different

advertisement, but the eligibility criteria remained

substantially same. A plain reading of clause 186 of the

1969 Rules shows that those from in-service category with

base education of SSLC or equivalent are eligible for

participation in recruitment process for those posts which

have starting pay below Rs.250/-.

20. Before the Full Bench, main argument of the

Commission was anchored on Rule 186 as well as to the GO

of 1986 which has been referred to in the judgment as

Exhibit P5. Submission of KPSC is that the said Exhibit P5

was Rule made under Section 80 of the 1969 Act and this

was not required to be published. But the said Rule was

again altered by a GO dated 23rd March, 1988, and for in-

service candidates, only three years experience in affiliated

primary co-operative society with minimum qualification of

SSLC with JDC was prescribed under revised Rule 8(i)(b) of

the Service Regulation.

22

21. As regards, source of power of making these

regulations under respective GOs, KPSC had taken stand

before the Full Bench that these were made under Section

80 of the said Act. Question has been raised about

implementation of the said Rules as there was no

consultation with the State Co-operative Union for making

these Rules. The Constitution Bench decision in the case of

State Of U. P. v. Manbodhan Lal Srivastava [(AIR) 1957

SC 912] has been referred to before us. In this case, the

question of lack of consultation with Public Service

Commission and the effect thereof in the light of the

provisions of Article 320 of the Constitution of India was

examined by the Constitution Bench. It was, inter-alia, held

in this judgment:-

“We have already indicated that Article 320(3)(c) of the Constitution does not confer any rights on a public servant so that the absence of consultation or any irregularity in consultation, should not afford him a cause of action in a court of law, or entitle him to relief under the special powers of a High Court under Article 226 of the Constitution or of this Court under Article 32. It is not a right which could be recognized and enforced by a writ. On the other hand, Article 311 of the Constitution has been construed as conferring a right on a civil servant of the Union or a State, which he can enforce in a court of law. Hence, if the

23 provisions of Article 311, have been complied with in this case — and it has not been contended at any stage that they had not been complied with — he has no remedy against any irregularity that the State Government may have committed. Unless, it can be held, and we are not prepared to hold, that Article 320(3)(c) is in the nature of a rider or proviso to Article 311, it is not possible to construe Article 320(3)(c) in the sense of affording a cause of action to a public servant against whom some action has been taken by his employer.”

22. The judicial exercise we have 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.

We do 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 (supra), we 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

24 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 Co-operative 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 pre-revision 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.

23. 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-

25 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 non-graduate

candidates’ participation in the recruitment process thereof.

For determining the educational qualification of the in-

service 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

26 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.

24. Now we shall turn to the Coordinate Bench decision

delivered in the case of Valsala Devi (supra). 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

27 binding precedent for us or not in this set of proceedings.

First is that Valsala Devi (supra) 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. We

have gone through the Bench decision from which the

appeal arose and we did 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

(supra). 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

28 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, inter-alia,

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).

25. 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

29 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.

26. In these circumstances, in our opinion, 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. We do 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

30 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 our opinion,

the Coordinate Bench decision would not constitute a

binding precedent so far as the present set of proceedings is

concerned. In these circumstances, we dismiss the five

appeals of the Commission. The Writ Appeal No. 865 of

2013 which was filed by the Commission before the Kerala

High Court against the judgment in WP (C) No. 21073 of

2011 dated 22nd February, 2013 being Transferred Case

(Civil) No. 60 of 2014 - Kerala Public Service Commission

v. Yesudas and Ors. is also dismissed. Notices were not

issued in the two Interlocutory Applications, I.A. No. 2 of

2012 and I.A. No. 82851 of 2021.

31

27. From Annexures “B” to I.A. No. 2 of 2012, we find that

for taking further steps in the matter of appointment of the

applicants thereof, the Commission was waiting for the

position of SLP….(CC) No. 17182 of 2008 (now Civil Appeal

No.1802 of 2010). In I.A. No.82851 of 2021 also, intending

intervenors seek to support the respondent candidates’

stand in the main set of appeals. We did not consider it

necessary to issue notice at this stage as the applicants in

these interlocutory applications are mainly supporting the

respondents/writ petitioners in the main set of five appeals.

As we have upheld the stand of the respondent candidates,

we do not think their intervention is necessary. Appropriate

steps shall be taken by the Public Service Commission on

the basis of performance or position in the selection process

of these applicants for intervention. So far as the I.A.

brought by Respondent No. 2 (i.e. No.84340 of 2021) in Civil

Appeal No.1805 of 2010 is concerned, we find that he has

participated in a different selection process and had been

appointed as a class IV employee in a District Co-operative

Bank on the basis of the Commission’s advice dated 6th

October, 2012. He has been further promoted to the post of

32 clerk by an order dated 5th June, 2017. It is pleaded in his

I.A. that he is continuing to work in that capacity. As he has

chosen a career path different from that which is subject

matter of the present set of appeals of connected matters,

no relief can be granted to him by antedating his promotion.

This application is rejected.

28. All other connected applications shall stand disposed

of.

29. There shall be no order as to costs.

..........................J (L. Nageswara Rao)

.........................J (Aniruddha Bose)

NEW DELHI September 06, 2021

33