MOHANAN Vs. STATE OF KERALA

JUDGEMENT

(1.) THIS appeal is directed against the judgment of the learned single judge dismissing O. P. No. 7879/86. The appellants hold the post of Upper Division Clerks in the Weights and Measures Department of the Kerala State . They are aspiring for promotion to the post of Divisional Inspectors. Though the U. D. Clerks cadre is a feeder category for promotion to the post of divisional Inspectors of Weights and Measures under the Kerala Weights and measures Subordinate Service Rules, as they do not possess the educational qualification prescribed viz, of graduation, their case for promotion has not been considered. Non consideration of their case is consistent with the clarification made in Ext. P1 dated 2-9-1986 issued by the Under Secretary to the Government which states that in future U. D. Clerks of Weights and Measures Department who are having basic qualification of graduation alone need be promoted and appointed as Inspectors (W & M) in accordance with the ratio as laid down in the Special Rules. The learned Single Judge after examining the relevant rules governing prescription of qualifications for the post of Divisional inspectors has come to the conclusion that even U. D. Clerks who are in the feeder ategory have to possess the educational qualification of graduation prescribed by the rules for earning eligibility for promotion to the cadre of divisional Inspectors. It is the said decision that is challenged in this appeal.

(2.) IT was submitted by the learned counsel for the appellants that under the Special Rules for the Kerala Weights and Measures subordinate Service Rules, 1967 issued under sub-s. (1) of S. 2 of the Public services Act 1968, though graduation was prescribed as one of the qualifications for promotion, an exception was made to the effect that those in the feeder category of U. D. Clerks are exempt from possessing the graduation qualification for promotion to the cadre of Divisional Inspectors. The. special rules made in the year 1967 stood superceded by fresh rules made under sub-s. (1) of S. 2 of the Kerala Public Services Act 1968 called the Kerala Weights and measures Subordinate Service Rules, 1978 published in the gazette dated 23rd may 1978. The relevant rule prescribing qualifications for the post of divisional Inspectors of Weights and Measures, contained in R. 3 of the said rules reads as follows: By subsequent amendment the figures V and 'ii' in column no. 3 were deleted. The explanatory note to the said amendment states that the numbering of the two qualifications would suggest that for direct recruitment to the post of Divisional Inspectors, Account Test (Lower) is also one of the qualifications prescribed, though that was not the intention of the rule making authority. IT is further stated that the intention of the Government was to prescribe graduation qualification alone for direct recruitment to the post of divisional Inspectors. IT is further stated that Account Test (Lower) is not intended as a qualification for direct recruitment to the post of Divisional Inspectors and that Account test (Lower) is prescribed as a qualification for the second method of appointment viz. , by promotion transfer of Technical Assistants and upper Division Clerks. In the light of this amendment it is contended By the learned counsel for the appellants that under the Kerala Weights and Measures subordinate Service Rules, 1978, Account Test (Lower) is the only qualification prescribed for those in the feeder category for Divisional Inspectors and that graduation qualification is prescribed only for filling up of those posts by direct recruitment. This argument is primarily based on the location of the two qualifications in column No. 3 of these rules. IT was pointed out that whereas the educational qualification of graduation finds printed just opposite to the words "50% by direct recruitment", the qualification of Account Test (Lower) printed in column No. 3 is against the filling up of "50% of posts by promotion /transfer from approved probationers in the categories of technical Assistants/ Upper Divisional Clerks in the Weights and Measures department. IT was submitted that this position is further made clear by the amendment to the explanatory note to which we have referred to above. Assuming for the sake of argument the learned counsel for the appellants is right in the submission of his, we cannot ignore the effect of R. 22 of the Kerala Weights and Measures (Enforcement) Rules, 1964 framed under S. 43 (2) (b) of the Kerala weights and Measures (Enforcement) Act 1958, S. 43 (2) (b) of the said Act empowers the Government to frame rules prescribing qualifications, functions and duties generally of Inspectors under the Act. R. 22 of the Kerala Weights and Measures (Enforcement) Rules, 1964, framed under the said provision reads: "22. Qualifications of Inspectors. (1) No person small be appointed as Inspector unless he? (i) is a graduate of a recognised University preferably in Science or Engineering or holds recognised Diploma in Engineering. (ii) is able to speak, read and write one of the regional languages of the State; and (iii) on selection has satisfactorily completed a course of training for not less than six weeks in the enforcement of Weights and Measures as approved by the Government. (2) Nothing in sub-rule (1) shall apply to persons who have been working as Inspectors for a period of not less than a year immediately before the commencement of these rules. " We thus find that R. 22 of the Kerala Weights and Measures (Enforcement) Rules, 1964 specifically prescribes graduation of a recognised university preferably in Science or Engineering or a recognised diploma in engineering as one of the essential qualifications for appointment to the post of inspectors. The expression "inspector" has been defined in s. 2 (c) of the Kerala Weights and Measures (Enforcement) Act, 1958 to mean an inspector of Weights and Measures appointed under sub-s. (1) of S. 15 or any other officer empowered by the Government to exercise the powers and discharge the duties conferred or imposed on an Inspector by or under the Act. Thus the divisional Inspector with which we are concerned is an Inspector as defined in s. 2 (c) of the said Act. R. 22 of the rules framed under the said Act positively requires possession of graduation as an essential qualification for being appointed as an Inspector. No distinction is made in regard to the appointment either by the process of direct recruitment or by transfer or by promotion. In other words, irrespective of the method of recruitment, no person can be appointed unless he possesses graduation qualification prescribed by R. 22 of the said rules. If the argument of the learned counsel for the appellants is right, it follows that whereas under R. 22 of the Kerala Weights and Measures (Enforcement) Rules graduation is a qualification for promotion to the post of divisional Inspectors, under the Kerala Weights and Measures Subordinate service Rules framed under sub-s. (1) of S. 2 of the Kerala Public Service Act 1968, graduation would not be one of the qualifications for appointment to the post of Divisional Inspectors by the process of promotion from the cadre of upper Division Clerks. Thus we have two sets of rules framed under two different enactments, one prescribing graduation as a qualification and another not prescribing graduation as a qualification. In a situation like this, the well recognised principle of interpretation that the special prevails over the general must be invoked. IT is necessary to point out that the Kerala Weights and Measures Subordinate Services Rules have been framed under sub-s. (1) of s. 2 of the Public Services Act 1968 which provides that the Government may make rules either prospectively or retrospectively to regulate the recruitment and conditions of service of persons appointed to Public Services in connection with the affairs of the State of Kerala. Thus the power conferred by sub-s. (1)of S. 2 of the Kerala Public Services Act 1968 is a general power of making rules regulating recruitment and conditions of service of persons appointed to various public services in connection with the affairs of the State of Kerala. But so far as the Kerala Weights and Measures (Enforcement) R. 1964 are concerned, they are framed under S. 43 (2) (b) of the Kerala Weights and Measures (Enforcement) Act which empowers the Government to frame rules prescribing qualifications, functions and duties generally of Inspectors" under this act. Thus we find that the power of prescribing qualifications in respect of the posts of Inspectors conferred by the Kerala Weights and Measures (Enforcement) Act is a special power. The power conferred by sub-s. (1) of S. 2 of the Kerala Public Services Act is a general power empowering - the rule making authority to regulate recruitment to various services in the State. We have therefore no hesitation in taking the view that if there is conflict between two sets of rules, the Kerala Weights and Measures (Enforcement) R. 1964 being special rules prevail over the Kerala Weights and Measures Subordinate service Rules framed under the general provisions of sub-s. (1) of S. 2 of the kerala Public Services Act. As there is a special provision prescribing graduation as a qualification, though for different reasons, we agree with the finding of the learned single judge that for promotion to the post of divisional Inspectors from the cadre of Upper Division Clerks, graduation is one of the essential qualifications which is required to be satisfied. This appeal therefore fails and is dismissed. No costs.