2010 (2) TMI 1262

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....tegory of Nurse (Homeopathy) 3. By transfer from the category of Pharmacist (Homeopathy) 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 recruitment, transfer from Nurses (Homeopathy), Pharmacist (Homeopathy) and Clerks in Homeopathy Department. 2. The appointment by transfer of Nurse (Homeopathy), Pharmacist (Homeopathy), 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 will be filled up by direct recruitment from open quota and the backlog for such categories will not be restored." [emphasis supplied) 3. Rule 5 of the General Rules is a general rule relating to 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 different methods of recruitment/ appointment to a post the number of vacancies to be filled up by candidates from each method shall be....

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....s 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 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, 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 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 will prevail over the provisions of the General Rules. 7. A learned Single Judge held that the writ petitioners can claim the quota for Pharmacists only in respect of the v....

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.... (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 the said provisions. But where the intention of the rule making authority is made clear either expressly or impliedly, as to which law should prevail, the same shall be given effect. (iii) If the repugnancy or inconsistency subsists in spite 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 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. (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. 12. Having regard to the fact that several Special Rules had been tailor made to suit and meet the special requirements of different specified services, the General Rules recognized the n....

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....." (emphasis supplied) (13.2) In Prasad Kurien, while considering whether the 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 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 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 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 t....