MAYA MATHEWversusSTATE OF KERALA & ORS.

                           [2010] 3 S.C.R. 16


A                           MAYA MATHEW
                                    v.
                     STATE OF KERALA & ORS.
                    (Civil Appeal No. 1833 of 2005)

                         FEBRUARY 18, 2010
B
            [R.V. RAVEENDRAN AND H.L. DAITU, JJ.]

          Service Law:

·c       Special Rules for the Kera/a State Homeopathy
     Services, 1989:

        r. 3, Table, Entry 5, Note (2) - Appointment to posts of
   Medical Officers by direct recruitment and by transfer in the
   ratio prescribed - Note (2) prescribing that in absence of
D candidates by transfer, vacancies to be filled by direct
   recruitment -:- Writ petition before High Court contending that
   vacancies were to be filled up by applying fixed ratio or
  percentage to the cadre strength of the post to which
  recruitment/transfer was to be made as provided under Note
E (3) to r.5 of general Rules - Dismissed - HELD: Note (2) to
  Entry 5 of the Table under r.3 of Special Rules, which was
  inserted in the Rules in 1999, would prevail over Note (3) to
  Rule 5 of the general Rules which was added in 1992 -
  Therefore, ratio of direct recruitment and appointment by
F transfer has to be applied with reference to vacancies which
  were notified and not with reference to the cadre strength -
  There is no ground to interfere with the decision of the High
  Court - Kera/a State and Subordinate Services Rules, 1958
  - r.5, Note (3) inserted in 1992 - Interpretation of Statutes.
G
         Interpretation of Statutes:

         General Rules and Special Rules governing the same
     subject - Applicability of - Rules of interpretation - Explained
     - Special Rules for the Kera/a State Homeopathy Services,
H                                  16
   MAYA MATHEW v. STATE OF KERALA & ORS.                     17


1989 - r. 3, Table, Entry 5, Note (2) inserted in 1999 - Kera/a   A
State and Subordinate Services Rules, 1958 - r. 5, Note (3)
inserted in 1992.

     S. Prakash & Anr. vs. K.M. Kurian & Ors. 1999 (3)
SCR 610 = (1999) 5 SCC 624; and Prasad Kurien & Ors. vs.          B
                                        =
K.J. Augustin & Ors. 2008 (3) SCR 1 (2008) 3 SCC 529,
referred to.

                     Case Law Reference:
    1999 (3) SCR 610          referred to           para 8        c
    2008 (3) SCR 1            referred to           para 8

    CIVIL APPELLATE JURISDICTION: Civil Appeal No(s).
1833 of 2005.
                                                                  D
    From the Judgment & order dated 29.11.2002 of the High
Court of Kerala at Ernakulam in Writ Appeal No. 3295 of 2001.

    C.S. Rajan, M.T. George for the Appellant.

    Vipin Nair, P.B. Suresh, Vivek Sharma (for Temple Law         I=
Firm) T.G. Narayanan Nair, P.V. Dinesh, T.P. Sindhu, ~.V.
Vined, Athouba K.P. Rajesh for the Respondents.

    The Order of the Court was delivered by

                            ORDER                                 F

     R.V. RAVEENDRAN, J. 1. The appellant is a Pharmacist
(Homeopathy) in the Homeopathy Department of State of
Kerala. The Kerala State Homeopathy Services are governed
by the 'Special Rules for the Kerala State Homeopathy .G
Services, 1989('Special Rules', for short). All sub-ordinate
services in the State of Kerala including the State Homeopathy
Services are also governed by the Kerala State and Sub-
ordinate Services Rules, 1958 ('General Rules' for short).
                                                                  H
    18      SUPREME COURT REPQRTS                     1201 O] 3 S.c'.R.

                                                                         •
A     2. Rule 3 of the Special Rules provides that the method of
  appointment to different categories of posts shall be in the
  manner specified in the Table given under the said rule. Entry
  No.5 in the said Table relating to Medical Officers (inserted by
  G.O. dated 27.5.1999, with effect from 12.4.1999) is extracted
B below:

     Category of Post          Method of appointment

      Medical Officer           1. By direct recruitment

c               2.      By transfer from t-h~e category of Nurse
                        (Homeopathy)

                3.      By transfer from the category of Pharmacist
                        (Homeopathy)
D               4.      By transfer from the category of Clerks
                        (Homoeo Department)

                        Note: 1. A ratio of 5: 1: 1: 1 shall be maintained
                        in making appointments between direct
E                       recruitment, transfe? from Nurses
                        (Homeopathy), Pharmacist {Homeopathy)
                        and Clerks in Homeopathy Department.

                        2. The appointment by transfer of Nurse
                        (Homeopathy), Pharmacist (Homeopathy),
F                       Clerk (Homeopathy) will be done by a
                        selection through the Kerala Public Service
                        Commission from among the three
                        categories. In the absence of candidates by
                        transfer those vacancies in each category
G                       will be filled up by direct recruitment from
                        open quota and the backlog for such
                        categories will not be restored."

         [emphasis supplied)
H
     ..
   MAYA MATHEW v. STATE OF KERALA & ORS.                       19
            [RV. RAVEENDRAN, J.]
      3. Rule 5 of the General Rules is a general rule relating to   A
the manner of recruitment. The following was added as Note
(3) to the said Rule 5 of the General Rules by the Kerala State
Subordinate Services (Amendment) Rules, 1992 :

     "Note (3) : Whenever a ratio or percentage is fixed for         8
     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 fixed ratio or
     percentage to the cadre strength of the post to which the
     recruitment/transfer is made and not to the vacancies           C
     existing at that time."

     4. The Homeopathy department reported 55 vacancies in
the post of Medical Officers (Homeopathy) to the Kerala Public
Service Commission, for purposes of recruitment. The
Commission, by notification dated 1.2.2000, invited                  D
applications for filling up the said 55 posts of Medical Officer
(Homeopathy) by dividing them (in the ratio of 5:1 :1 :1) as
follows:

     (i)      Direct recruitment                          32
                                                                     E
     (ii)     Transfer from Nurses (Homeopathy)            7
     (iii)    Transfer from Pharmacist (Homeopathy) 7

     (iv)     Transfer from Clerks                        7
                                                                     F
     5. The appellant and two others filed a writ petition before
the High Court seeking a direction to the state government to
report to the Public Service Commission 32 vacancies of
Medical Officers (Homeopathy) to be filled by appointment by
transfer of Pharmacists (Homeopathy). They contended that the        G
cadre strength of Medical Officers (Homeopathy) was 442; that
having regard to the ratio of 5: 1: 1:1 for making appointments
(provideui in the Special Rules, vide Note (1) to Entry 5 of the
Table), out of the said 442 posts, 277 posts could be filled by
direct recruitment and the balance of 165 posts had to be filled     H
       20      SUPREME COURT REPORTS                    [2010] 3 S.C.R.


  A     by transferees from the posts of Nurses, Pharmacists and
        Clerks in the Homeopathy department at the rate of 55 each;
        that due to non-availability of qualified persons in the categories
        from which appointments were to be made by transfer, only 23
        from the category of Pharmacists, one each from the
    B categories of Nurses and Clerks were holding the post of
        Medical Officers, and all other Medical Officers (Homeopathy)
        were direct recruits; that as the direct recruits were occupying
        posts in excess of their quota, when making further recruitments,
        the vacancies to be filled have to be determined by applying
  c     the fixed ratio to the cadre strength and not the vacancies then
        existing; and that as the direct recruits were in excess of their
        quota and transferees were occupying less than their
        entitlement, the allocation of 55 vacancies to different
        categories had to be reworked; and all 55 vacancies ought to
· · ~ · be distributed among Pharmacists, Nurses and Clerks without
        providing for any direct recruitment. The writ petitioners relied
        upon Note (3) to Rule 5 of the General Rules which requires
        that the ratio should be with reference to the cadre strength and
        not the actual vacancies existing at the time of recruitment. The
        appellant contends that Note (3) to Rule 5 of the General Rules
    E will prevail over Note (2) to entry 5 of the Table under Rule 3 of
        the Special Rules.

          6. The respondents resisted the petition. They contended
    that having regard to Note (2) to Entry 5 of the Special Rules,
  F when in a recruitment, transfer quota posts have to be filled by
    direct recruits, due to non-availability of candidates from transfer
    categories, the backlog in regard to such transfer categories
    cannot be restored in future recruitments. As a result, the
    number of vacancies to be filled under each category (that is
  G direct recruitment and by transfers) at any subsequent
    recruitment can be only by applying the ratio for appointment
    to the number of vacancies existing at the time of such
    subsequent recruitment and not with reference to the cadre
    strength. They submitted that the provisions of the Special Rules
  H will prevail over the provisions of the General Rules.
    MAYA MATHEW v. STATE OF KERALA & ORS.                       21
             [R.V. RAVEENDRAN, J.]
     7. A learned Single Judge held that the writ petitioners can     A
claim the quota for Pharmacists only in respect of the vacancies
that existed (as on 12.4.1999) and vacancies that arose
subsequently. He therefore disposed of the writ petition by order
dated 28.6.2001 with a direction to the respondents to fill up
the available vacancies by applying the quota mentioned in the        B
Special Rules with reference to the existing vacancies of
Medical Officers (Homeopathy), that is vacancies available as
on 12.4.1999 and vacancies which arose thereafter. He further
directed that if there was any dearth of qualified Pharmacists,
Nurses, Clerks within the quota intended for them, those              C
vacancies should be filled by direct recruitment and the backlog
shall not be required to be restored in any future recruitment.
The appellant challenged the said order by filing a writ appeal.
A Division Bench of the High Court by the impugned order
dated 29.11.2002, dismissed the writ appeal holding that the
                                                                      0
recruitment will be governed by the Special Rules.

      8. The said order is challenged in this appeal by special
leave. The appellant reiterated her submissions in the writ
petition relying upon two decisions of this Court in S. Prakash
& Anr. vs. K.M. Kurian & Ors., (1999) 5 SCC 624 and Prasad            E
Kurien & Ors. vs. K.J Augustin & Ors., (2008) 3 SCC 529.

     9. The question for consideration is whether the
respondents were justified in determining the number of posts
to be filled by direct recruitment, and posts to be filled by
                                                                      F
transfer from the three transfer categories, by applying the
prescribed ratio of 5: 1: 1: 1 to the existing vacancies instead of
the cadre strength.

    10. In this case, the general law contained in Note (3) of
Rule 5 of the General Rules, came into effect in the year 1992. G
On the other hand, Note (2) to Entry 5 of the Table under Rule
3 of the Special Rules which is repugnant to note (3) of Rule 5
of the General Rules came into effect on 12.4.1999.

    11. The rules of interpretation when a subject is governed        H
    22       SUPREME COURT REPORTS                    [2010] 3 S.C.R.


A   by two sets of Rules are well settled. They are:

         (i) When a provision of law regulates a particular subject
         and a subsequent law contains a provision regulating the
         same subject, there is no presumption that the later law
         repeals the earlier law. The rule making authority while
B
         making the later rule is deemed to know the existing law
         on the subject. If the subsequent law does not repeal the
         earlier rule, there can be no presumption of an intention to
         repeal the earlier rule;

c        (ii) When two provisions of law - one being a general law
         and the other being special law govern a matter, the court
         should endeavour to apply a harmonious construction to tht
         said provisions. But where the intention of the rule makir;Jg
         authority is made clear either expressly or impliedly, 'as to
D        which law should prevail, the same shall be given effect.

         (iii) If the repugnancy or inconsistency subsists in ~pite of
         an effort to read them harmoniously, the prior special law
         is not presumed to be repealed by the later general law.
         The prior special law will continue to apply and prevail in
E
         spite of the subsequent general law. But where a clear
         intention to make a rule of universal application by
         superseding the earlier special law is evident from the later
         general law, then the later general law, will prevail over the-
         prior special law.
F
         (iv) Where a later special law is repugnant to or inconsistent
         with an earlier general law, the later special law will prevail
         over the earlier general law.                              ,

G         12. Having regard to the fact that several Special Rules
    had been tailor made to suit and meet the special requirements
    of differen1 specified services, the General Rules recognized
    the need for the Special Rules to prevail over the Genera!,Rules.
    Rule 2 of the General Rules providing for it, is extracted below:

H
   MAYA MATHEW v. STATE OF KERALA & ORS.                        23
            [R.V. RAVEENDRAN, J.]
    "2. Relation to the Special Rules - If any provision in the       A
    General Rules contained in the part is repugnant to a
    provision in the Special Rules applicable to any particular
    service contained in Part 111, the latter shall in respect of
    that service, prevail over the provision in the General Rules
    in this part."                                                    B

Therefore, the provision of Special Rules (Note (2) under Entry
5 of the Table) will prevail over the provision of the General
Rules (Note (3) under Rule 5). Even without such a specific
provision, contextually, the said later special Rule would have       C
prevailed over the said prior general Rule.

     13. The question whether there can be an exception to the
primacy given to special Rules by Rule 2 of the General Rules,
was considered by this Court in S. Prakash and Prasad
Kurien, with particular reference to Note (3) of Rule 5 of the        D
General Rules.

     (13.1) In S. Prakash, this Court considered whether the
provisions of Special Rules - Kerala Agricultural Income Tax and
Sales Tax Service Rules, will have to yield to Note (3) to Rule       E
5 of the General Rules. This Court held:

     "14. From the aforesaid discussion, it is clear that if the
     intention of the rule-making authority was to establish a rule
     of universal application to all the services in the State of
     Kerala for which the Special Rules are made, then the            F
     Special Rules will give way to the General Rules enacted
    for that purpose. This has to be found out from the
     language used in the rules which may be express or by
     implication. If the language is clear and unqualified, the
    subsequent General Rule would prevail despite                     G
    repugnancy. If ti 3 intention of the rule-making authority
    is to sweep away all the Special Rules and to establish
    a uniform pattern for computation of the ratio or
    percentage of direct recruits and by transfer, in such a
    case, the Special Rules will give way ...... The language         H   ~.
    24       SUPREME COURT REPORTS                      [2010) 3 S.C.R.


A        of Note (3) is crystal clear and is for removal of any
         ambiguity by using positive and negative terms. It applies
         to all the Special Rules whenever a ratio or percentage is
         prescribed in the rules. It also emphatically states that it
         has to be computed on the cadre strength of the post to
B        which the recruitment is to be made and not on the basis
         of the vacancies existing at that time."

                                                   (emphasis supplied)

      (13.2) In Prasad Kurien, while considering whether the
C Special Rules - Kerala Excise and Prohibition Subordinate
  Service Rules, 1974, vis-a-vis note (3) to Rule 5 of the General
  Rules, this Court followed the dictum in S. Prakash.

          (13.3) These decisions reiterate the position that if the
0   intention of the rule making authority is to make a later general
    rule to apply to all services in the State, for which different earlier
    special rules exist, then the existing special rules will give way
    to such later General Rule. That is, where the general rule is
    made subsequent to the special rule and the language of the
E   general rule signified that it was intended to apply to all
    services and prevail over any prior special rules, the intention
    of the rule making authority should be given effect by applying
    the subsequent general rule instead of the earlier special rule.
    This court held that the language of Note (3) to Rule 5 of General
    Rules showed that it was intended to prevail over existing
F   Special Rules which indicated a contrary position. What is
    significant is that the two decisions considered the Special
    Rules that were earlier in point of time to the General Rules as
    amended by the 1992 Amendment rules which jntroduced Note
    (3) to Rule 5 of the General Rules. This Court held, on reading
G   the General Rules in conjunction with the Special Rules, that
    Note (3) to Rule 5 of General Rules will prevail over the
    corresponding provisions in the Special Rules showing a
    different intention, when deciding whether the ratio of each
    feeder category should be determined with reference to the
H   cadre strength or existing vacancies.
    MAYA MATHEW v. STATE OF KERALA & ORS.                      25
            [R.V. RAVEENDRAN, J.]
      14. What logically follows from the principle enunciated in A
 the two decisions is that if any Special Rule is subsequent to
 the General Rule, then the question of examining whether the
 prior general rule will prevail over a latter special rule will not
 arise at all having regard to the categorical provision contained
 in Rule 2 of the General Rules. The principle laid down in those B
 decisions will not apply where the Special Rule is made
 subsequent to the General Rule. Though the Special Rules are
 of the year 1989, Entry 5 with its Notes (1) and (2) relating to
 Medical Officers, prescribing the ratio as also a condition that
the backlog will not be restored, was inserted by an amendment       c
with effect from 12.4.1999, vide G.O. dated 27.5.1999. The
special rule, being later in point of time to the general rule, it is
not permissible to carve out an exception as was done in S.
Prakash and Prasad Kurien. Entry 5 of the Table with Notes
(1) and (2) in the Special Rules being subsequent to the
                                                                      0
insertion of Note (3) to Rule 5 of General Rules, and being clear
and specific in its terms, will prevail over Note (3) of Rule 5 of
the General Rules. The said decisions are therefore of no
assistance.

     15. Learned counsel for the appellant submitted that even E
before the 1999 amendment, the entry relating to Medical
Officers in the Special Rules contained a provision similar to
Note (2) of the Entry 5, inserted by the 1999 amendment; that
the said old Special Rule was superseded by Note (3) of Rule
5 of General Rules; and therefore re-insertion of the provision F
in the Special Rules will not supersede the General Rule. We
are afraid that the said contention has no merit. When the Rule
Making Authority being aware of the existence of Note (3) in
Rule 5 of the General Rules, chooses to subsequently make a
contrary provision in the Special Rules, it is to be inferred that G
the subsequent rule is intended to prevail over the general rule.
We therefore hold that Note (2) to Entry 5 of the Table under
Rule 3 of Special Rules will prevail over Note (3) to Rule 5 of
the General Rules.
                                                                     H
    26       SUPREME COURT REPORTS                   [2010] 3 S.C.R.
                                     \



A        16. It therefore follows that the ratio of 5: 1: 1: 1 has to be
    applied with reference to vacancies which were notified and not
    with reference to the cadre strength. There is no ground to
    interfere with the decision of the High Court. Appeal is
    dismissed. Application for intervention is dismissed.
B
    R.P.                                          Appeal dismissed.




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