REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL  NO(S).  2827 OF 2010

A.P. SHOWKATH ALI & ORS.             …. APPELLANT(S)

VERSUS

STATE OF KERALA & ORS.                           …. RESPONDENT (S)

J U D G M E N T

KURIAN, J.

1. What  is  equity  and  justice  in  a  situation  where  a  few

employees face adverse consequences for not passing an

obligatory  test  which  was  never  conducted,  is  the  short

question arising for consideration in this case.

2. In  a  special  recruitment,  thirty-seven  Assistant

Sub-Inspectors belonging to the Scheduled Caste/Scheduled

Tribe  community  were  appointed  by  the  Government  of

Kerala during 1988. It is the requirement of the Special Rule

that  they  should  pass  the  special  test  conducted  by  the

Kerala  Public  Service  Commission  for  declaration  of

probation.  Rule  9  of  the  Special  Rules,  to  the  extent

relevant, reads as follows:  

“9. TEST-

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a) Every person appointed under these rules shall,  pass  the  test  on  the  subjects mentioned in Annexure III to these rules at or before the fifth of such tests held after such appointment the maximum number of chances shall be limited to three.

Note: The examination will generally be conducted  half-yearly  by  the  Kerala Public Service Commission.”  

3. For over twelve years, the test was not conducted by the

Commission.  In  the  meanwhile,  those  Assistant

Sub-Inspectors  approached  the  High  Court  and  obtained

orders for provisional promotion to higher posts along with

their juniors.

4. While  the  Assistant  Sub-Inspectors  continued  to  enjoy

provisional  promotions,  the  Government  felt  that  there

should be a one-time solution for the issue regarding the

passing of the test under the Special Rules since the test

had  not  been  conducted.  In  such  circumstances,  the

Government  passed  an  Order  dated  17.11.2000  invoking

Rule 39 of the Kerala State and Subordinate Services Rules,

1958  (hereinafter  referred  to  as  ‘the  Rules’)  exempting

those  thirty-seven  directly  recruited  Assistant

Sub-Inspectors from passing the test prescribed under the

Special Rules. Since the order is self-explanatory, we shall

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extract the same as such:  “ORDER

As per  Government Order  read as first paper  above,  Government  issued  Special Rules  for  Special  Recruitment  from  among members  of  scheduled  castes  /  scheduled tribes to the post of Assistant Sub Inspector in the general Executive Branch (Local Police) in the  Police  Department.  Subsequently  the Director  General  of  Police  proposed  certain modifications to the above Government order during 1988, the following are the gist of the proposals:-

1) the Note under rule 9(a) of  the said rules  shall  be  deleted  and  the Department  may  be  authorized  to conduct  the  tests  and  declare  the results as in the case of other trainees in the Police Department.

2) Every person appointed to the Police force is required to execute a bond to the  effect  that  he  shall  serve  the Department for a minimum period of 5 years after practical training.

3) the  period of training of Assistant Sub Inspectors shall not count as duty for increment and probation, duty for the limited purpose of calculation of leave eligibility as a special case as in the case  of  Police  Constables  and  Sub Inspectors.

The  above  proposal  of  the  Director General  of  Police  was  considered  by Government  in  detail  and draft  amendment notification  in  this  regard  was  forwarded  to the Kerala Public Service Commission for their advice on 6.1.1989. Initially the Kerala Public Service  Commission  did  not  agree  to  the amendment  proposal.  But  during  1993  the Kerala  Public  Service  Commission  sought

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clarifications for certain points and the reply to  the  clarifications  sought  by  the  Kerala Public  Service Commission was furnished to them. Final decision on the proposal is yet to be taken.

Consequent  on  the  issuance  of  the Government Order  read as 1st paper above, 37  persons  belonging  to  SC/ST  Community were  directly  recruited  as  Assistant  sub Inspectors  during  1988  and  they  joined training from 1.11.1988 onwards.  According to Rule 9(a) of the Special Rules issued as per the  above  Government  Order  all  the  37 Assistant Sub-Inspectors should pass the test prescribed thereunder to be conducted by the Kerala  Public  Service  Commission  for declaring the satisfactory completion of their probation  and  for  earning  increments.  But unfortunately, no test was conducted by the Kerala  Public  Service  Commission  till  date probably  because  proposals  to  amend  the provisions in the Special Rules regarding the conduct of the test and certain other matters had  been  under  consideration.  As  a  result, these 37 officers did never get an opportunity to  appear  for  the  test  and  hence  the satisfactory  completion  of  probation  of  the above mentioned 37 Assistant Sub Inspectors has not been declared so far. This created a situation  during  1991  when  Assistant  Sub Inspectors  who  were  juniors  to  these  37 officers  were  promoted  as  Sub-Inspectors. Some among the 37 Assistant Sub Inspector approached the Hon’ble High Court by filing OP No. 12822/91 and based on the directions of the Hon’ble High Court all the 37 officers were provisionally promoted as Sub Inspector.

Though, based on the directions of the Hon’ble  Court,  all  the  37  Assistant  Sub Inspectors were promoted as Sub Inspectors, the  question  of  passing  of  the  test  for declaration of their probation in the category

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of Assistant Sub Inspector remains unsolved. The Director  General  of  Police has reported that the seniority of these officers could not be  fixed  so  far.  Further  these  officers  are being denied annual increment due to them as  passing  of  the  test  is  necessary  for increment also. The Director General of Police has  further  reported  that  all  the above-mentioned 37 Assistant Sub Inspector have become senior Sub Inspectors who can be  considered  for  promotion  as  Circle Inspectors. If the issue regarding the passing of the test and declaration of probation is not solved immediately,  these officers are likely to  be  superseded  in  the  promotion  of  this post  of  Circle  Inspectors.  The  situation  as described  above  has  arisen  for  no  fault  of these officers. Though passing of the test has been prescribed for  the  declaration  of  their probation, the test prescribed has never been conducted  though  12  years  have  passed since their recruitment. They were appointed as Assistant Sub-Inspectors 12 years ago and they are at present working as (Provisional) Senior  Sub  Inspectors  still  getting  the minimum of the scale of pay of the Assistant Sub Inspector. Now after a lapse of 12 years, insisting on the passing of the test by these officers is quite unjustified. Now that they will be  working  as  Sub  Inspectors  for  the  last several years, insistence on a test which was to decide then suitability for confirmation in the rank of Assistant Sub Inspector is illogical also.  In  order  to  sort  out  an  immediate solution to  the above problem,  the Director General of Police has proposed that this is a fit case of invoking powers of the Government under Rule 39 of the KSSRs, 1958 taking into account  the  extraordinary  circumstances under  which  these  officers  have  suffered seriously  for  so  long.  He  has,  therefore, recommended  that  the  Government  may

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invoke  General  Rule  39  and  exempt  these officers  from  passing  the  test  prescribed under Rule 9(a) of the special Rules.

Having examined  the proposal in detail, Government  are  pleased  to  exempt  the  37 directly  recruited  Assistant  Sub  Inspectors from passing the test prescribed under Rule 9(a)  of  the  Special  Rules  issued  as  per Government Order read as first paper,  as a Special  Case,  by  invoking  Rule  39  of  the General Rules.”

(Emphasis supplied)   

5. The above Order was challenged by the appellants before

the  High  Court  of  Kerala.  The  High  Court,  as  per  the

impugned Order, dismissed the writ petition, holding that:

“9. The  reasons  stated  by  the  Government disclose  an  extraordinary  situation  and  the injustice that was meted out to the Assistant Sub Inspectors  of  Police,  warranting  invocation  of  its powers under Rule 39 of K.S. & S.S.R. Reasoning of the Government that it was illogical and unjustified to  ask  the  Assistant  Sub  Inspectors  of  Police  to appear for the test after rendering service of 12 years  in  the  post  also  cannot  be  said  to  be unreasonable.  We  are  satisfied  that  Government was justified in invoking the power under Rule 39 of K.S. & S.S.R. and in our considered view, there is nothing illegal in Ext.P6 order of the Government.”

 6. Aggrieved, the appellants are before this Court.  

7. Shri Shyam Divan, learned Senior Counsel appearing for the

appellants submits that under Rule 13AA of the Rules, no

exemption can be granted to the members of the Scheduled

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Castes  and  Scheduled  Tribes  from  passing  the  tests

prescribed  for  the  purpose  of  promotion  in  the  case  of

Executive  staff  below  the  rank  of  Sub-Inspectors  in  the

Police Department. It is contended that the said Rule has to

operate  notwithstanding  anything  contained in  the  Rules,

and  therefore,  it  is  an  exception  to  Rule  39.  It  is  also

contended  that  the  Government  Order  dated  05.02.2000

has specifically ruled that Scheduled Caste and Scheduled

Tribe  employees  who  entered  the  service  on  or  after

01.01.1986, are not entitled to any test exemption. It was

also contended, placing reliance on the Full Bench decision

of  the  Kerala  High Court  in  T.C.  Sreedharan Pillai  and

others v.  State of Kerala and others  1, that there is no

equity  and  justice  in  exempting  certain  employees  from

passing the obligatory test. Finally, it was contended that in

any case it is not a case for granting exemption.  

8. Heard Shri Jaideep Gupta, Shri V. Giri and Shri C.U. Singh,

learned  Senior  Counsel  appearing  for  the  contesting

respondents and Shri Shyam Divan, learned Senior Counsel

and Shri V. K. Biju, learned Counsel appearing for the State

who  have  supported  the  Government  Order  granting

1  1973 KLJ 187/MANU/KE/0299/1972

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exemption.  

9. In order to appreciate the rival contentions, it is necessary

to refer to Rule 13AA and Rule 39, which read as follows:  

“13AA.  Notwithstanding  anything  contained  in these  rules,  the  Government  may,  by  order, exempt  for  a  specified  period,  any  member  or members,  belonging  to  a  Scheduled  Caste  or Scheduled  Tribe,  and  already  in  service,  from passing the tests referred to in rule 13 or rule 13 A of the said Rules:  

Provided that this rule shall not be applicable to tests prescribed for  purposes of promotion of the  executive  staff  below  the  rank  of Sub-Inspectors  belonging  to  the  Police Department.”  

xxx xxx xxx xxx

“39. Notwithstanding anything contained in these rules or in the Special Rules or in any other Rules or Government Orders the Government shall have power  to  deal  with  the  case  of  any  person  or persons  serving  in  a  civil  capacity  under  the Government  of  Kerala  or  any  candidate  for appointment to a service in such manner as may appear  to  the  Government  to  be  just  and equitable:  

Provided that where such rules or orders are

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applicable to the case of any person or persons, the case shall not be dealt with in any manner less favourable to him or them than that provided by those rules or orders.  

This  amendment  shall  be  deemed  to  have come into  force  with  effect  from 17th December 1958.”

 10. We do not think that it needs any elaborate discussion to

note that Rule 39 of the Rules is to operate notwithstanding

anything  contained  in  the  Rules  or  Special  Rules  or

Government  Orders.  No  doubt,  under  Rule  13AA,  the

passing of test is obligatory for members of the Scheduled

Caste and Scheduled Tribe below the rank of Sub-Inspectors

in the Police Department. But it has to be seen that it is Rule

39 which is  an exception to the exemption contemplated

under  Rule  13AA.  Rule  39  is  to  operate  notwithstanding

anything  prescribed  not  only  in  the  Kerala  State  and

Subordinate Services Rules or the Special Rules but even in

any  Government  Order.  The  whole  purpose  of  such

residuary  power  is  to  remedy  an  otherwise,  unjust  and

inequitable  situation.  Therefore,  the  Government  Order

dated 05.02.2000 also  does not  stand in  the  way of  the

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Government  invoking  Rule  39.  That  apart,  Rule  13AA

operates in the matter of promotion whereas in the instant

case, Rule 39 is operated in the matter of probation.  

11. The  reliance  placed  on  the  Full  Bench  decision  in  T.C.

Sreedharan Pillai and others (supra), according to us, is

of  no  avail  to  the  appellants.  The  Full  Bench  has

summarized the law on Rule 39 in paragraphs-20 and 21,

which read as follows (paragraph numbers are given as they

appear in MANU/KE/0299/1972): “20. We may now summarise the conclusions that emerge  from the  preceding  discussion.  We  hold that R. 39 is valid and that it does not suffer from the vice of arbitrariness or excessive delegation. We are of  the view that  the  said  Rule  does not warrant  the  passing  of  any  general  order  with respect to any undefined or large group of persons exempting them from the operation of any existing rule or granting a relaxation of the rules in favour of  such  a  group.  The  rule  only  authorises  the authority  designated  therein  to  deal  with  any specific case or cases of individual officers and to pass orders in a just and equitable manner after a full application of the mind of the authority to all the relevant facts and circumstances necessary for a proper determination of the question as to what would constitute justice and equity.  In exercising this power it is open to the authority to relax the rigour  of  the  rules  to  such  extent  as  may  be necessary  to  ensure  justice  and  equity,  but  it cannot  completely  nullify  the  operation  and effectiveness of the rules in the guise of relaxing their rigour. If, however, special circumstances do exist  warranting  a  valid  classification  of  the particular case or cases it will also be open to the

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authority  exercising  the  power  under  R.  39  to accord  a  special  treatment  in  respect  of  such exceptional cases even by exempting the person or  persons concerned from the operation of  any particular  rule.  In  saying  this  we  consider  it necessary to emphasise that such a course will be permissible  only  in  those rare  cases  where  very strong grounds exist justifying a valid classification of  the  cases  of  the  officers  in  question  for  the purposes of Art. 14 and 16 of the Constitution. In determining  what  is  'just  and  equitable'  the authority  should  take  into  account  the  overall effect  that  the  proposed  order  would  have  in relation not merely to the particular officers whose cases are specifically dealt with by it but also to all others belonging to the same service, category or class. The mere fact that the enforcement of a rule creates hardship to an officer or a group of officers will be no ground for invoking the power under R. 39,  because  it  must  be  assumed  that  the possibility of the causation of any such hardship must  have  been  duly  taken  into  account  at  the time when the rule in question was made and the rule making authority has nevertheless thought it fit to enact such a provision.

21. Though it was strongly contended on behalf of the  petitioners  that  the  power  under  R.  39  can under  no  circumstances  be  exercised  in  such  a way  as  to  affect  the  rights  of  any  of  the  other persons in the service, we find it difficult to uphold the said contention when it is stated in such a wide form. While explaining the scope of R. 39 we have already held that it is permissible under the said rule to grant a relaxation of the rigour of the rules or  even  an  exemption  from  any  provision contained in the rules in favour of any officer or officers,  in  regard  to  whom  the  facts  and circumstances are such that a valid classification for according special treatment would be justified under Art. 14 and 16 of the Constitution. It is quite possible that when such an order is passed it may

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directly or indirectly have repercussions regarding the  seniority,  rank  or  chances  of  promotion  of some  of  the  other  officers  in  service.  That, however,  has  to  be  regarded  as  an  inevitable incident of service flowing from the exercise of the power  under  R.  39  which  is  as  much  a  rule regulating  the  conditions  of  service  of  all  the officers  in  the  service  of  the State  as  the  other provisions  contained  in  the  Kerala  State  and Subordinate  Services  Rules.  The rights  conferred on  the  members  of  service  by  the  earlier  Rules Nos. 1 to 38 in the Kerala State and Subordinate Services Rules are not  absolute in  character  but are inherently subject to the contingent liability of being affected by any order validly passed under R. 39.”

(Emphasis supplied) 12. Close to the facts, a situation where the Government had

not conducted the tests, had arisen for consideration before

the Kerala High Court in Sherafuddin v. State of Kerala  2,

where at paragraph-9 , it was held that (paragraph numbers

are given as they appear in MANU/KE/0299/1972):  

“9.  The Government having never conducted the examination,  it  will  be  unjust  and inequitable  to deny the service benefits to the incumbents if they are otherwise fit for such benefits. In fact the very purpose of the rule is to tide over such situations. There is  no point in requiring the incumbents to perform an impossibility. They are required to pass the examination if only it is held. Admittedly it was never held. Therefore, the invocation of Rule 39 in such circumstances is justifiable in terms of justice and equity. The purpose of the rule is to use the principles of justice to supplement law in a fair and reasonable manner  and for  a  just  and equitable

2  2004 (2) KLT 731/MANU/KE/0103/2004

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cause. The  action/  inaction  of  the  Government shall not prejudice an incumbent who is otherwise fit  for  service  benefits  and  hence  the  order  is perfectly justifiable.”

and at paragraph-13, it has been further held: “13.  .… When there is failure of justice resulting in inequity and injustice, Rule 39 of the General Rules is  to  be  invoked  in  the  interests  of  equity  and justice.  Such  power  can  be  exercised  even with retrospective effect for doing complete equity. ….”

13. We respectfully endorse the views expressed by the Kerala

High Court.

14. The  whole  purpose  of  equity  jurisdiction  is  to  prevent

injustice  and to  promote justice.  In  the  words  of  Krishna

Iyer,  J.,  in  Roshanlal  Kuthalia v.  R.  B.  Mohan  Singh

Oberoi  3, “…..equity is the moral dimension of law”. Thus,

equity shall overpower technicality where human justice is

at  stake4.  There  is  a  lot  of  difference  between the  court

exercising  equity  jurisdiction  and  the  law-maker  itself

exercising it.  As in the instant case, a residuary power is

reserved by the law maker, namely the Government, to be

used  in  certain  situations  which  are  not  otherwise

prescribed under law. However, such power does not clothe

the Executive to supplement a prescribed provision or to act 3  (1975) 4 SCC 628 4  Charles K. Skaria v. C. Mathew, (1980) 2 SCC 752

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in violation of the same. As stated by this Court in Bola v.

Sardana  5, “Equity steps in where the law has left yawning

gaps”.  Even for  courts,  equity jurisdiction is  meant to  be

exercised when there is no law operating in the field6.

15. Back to  the  facts,  in  ascertaining  equity  and justice,  the

simple question to be addressed is what would happen to

those thirty seven Assistant Sub- Inspectors in service, in

case the exemption is not granted. For no fault on their part,

should they have to  continue as  Assistant  Sub-Inspectors

only till  their  retirement? Is  there any point,  nay,  does it

even appeal to common sense, to subject them to the test

after more than twelve years of entering service and serving

in  promoted  posts  as  well?  Certainly,  to  remedy  such  a

situation, an equitable relief deserves to be granted to such

employees in  the interest  of  justice  by invoking Rule  39.

That is what has been done by the Government as per the

impugned Order dated 17.11.2000.

16. Application for impleadment is allowed.

17. In that view of the matter, we do not find any merit in this

appeal and the same is accordingly dismissed. However, we

5  (1997) 8 SCC 522 6   Shiv Kumar Sharma v. Santosh Kumari, (2007) 8 SCC 600

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make  it  clear  that  we  have  only  dealt  with  the  issue  of

validity of the Government Order dated 17.11.2000 issued

under Rule 39 of the Rules, and in case the appellants have

other  grievances,  it  is  for  them  to  pursue  the  same,  if

permitted  under  law,  through  appropriate  proceedings

before appropriate forum.  

18. There shall be no order as to costs.

........................J.               (KURIAN JOSEPH )  

…......................J. (R. BANUMATHI)  

New Delhi; August 10, 2017.  

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ITEM NO.102               COURT NO.6               SECTION XI -A                S U P R E M E  C O U R T  O F  I N D I A                        RECORD OF PROCEEDINGS

Civil Appeal  No(s).  2827/2010 A.P. SHOWKATH ALI & ORS.                           Appellant(s)                                 VERSUS STATE OF KERALA & ORS.                          Respondent(s) (APPLICATION FOR IMPLEADMENT] Date : 10-08-2017 This matter was called on for hearing today. CORAM :  HON'BLE MR. JUSTICE KURIAN JOSEPH          HON'BLE MRS. JUSTICE R. BANUMATHI Counsel for the  parties Mr. Shyam Divan, Sr. Adv.

Mr. S. V. Raj, Adv.  Mr. K. Vijayan, Adv.  Mr. K. Rajeev, AOR Mr. V. K. Biju, AOR Mr. Himanshu Singh Yadav, Adv.  Mr. Abhay Pratap Singh, Adv.  Mr. Jaideep Gupta, Sr. Adv. Mr. G. Prakash, Adv.  Mr. Jishnu M.L., Adv.  Ms. Priyanka Prakash, Adv.  Ms. Beena Prakash, Adv.  Mr. Chander Uday Singh, Sr. Adv.  Mr. Jayanth Muth Raj, Adv.  Mr. Manu Krishnan G., Adv.  Mr. P. S. Sudheer, AOR Mr. V. Giri, Sr. Adv.  Mr. M. P. Vinod, AOR  Mr. Atul Shankar Vinod, Adv.  Mr. Dileep Pillai, Adv.  

UPON hearing the counsel the Court made the following                              O R D E R

Application for impleadment is allowed.   

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The  appeal  is  dismissed  in  terms  of  the  signed  reportable Judgment.   

Pending interlocutory applications, if any, stand disposed of.

(JAYANT KUMAR ARORA)                            (RENU DIWAN)   COURT MASTER                              ASSISTANT REGISTRAR

(Signed reportable Judgment is placed on the file)

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