Sam Zacharias Vs. State of Kerala - Court Judgment

Thottathil B. Radhakrishnan, J.

1. In exercise of powers under Section 80B of the Kerala Co-operative Societies Act, 1969, hereinafter referred to as the 'Act', read with Rule 182B of the Kerala Co-operative Societies Rules, 1969, for short, 'the Rules', the Government issued Ext.P1 Government Order dated 1st March, 2006 reconstituting the Co-operative Service Examination Board, hereinafter referred to as the 'Board', with the petitioners as members. On 6th June, 2007, the Government issued a similar notification reconstituting the Board with respondents 3 to 5 as members. That was done pursuant to the amendment to Sub-rule (1) of Rule 182B of the Rules effected as per Ext.P3 Government Order dated 1st June, 2007 incorporating a proviso to the following effect:

Provided that the person designated as the Chairman shall be a post graduate with a minimum approved teaching experience of 15 years in any Government or other approved colleges. Of the other two members one shall be a woman with a degree in Law and having a minimum of 5 years experience as legal practitioner in a court of law and the other one shall be an eminent Co-operator who had served in the Board of Management of a reputed and financially sound Co-operative Society.

2. Ext.P3 amending rules are called the Kerala Co-operative Societies (Amendment) Rules, 2007, hereinafter referred to as the 'Amending Rules'.

3. This Writ Petition is filed challenging the amendment to the Rules and the consequential reconstitution of the Board as per Ext.P2.

4. The plea of the petitioners is that Section 80B of the Act and Rule 182B of the Rules provide for a term of office of five years and the term of the Board constituted as per Ext.Pl having not expired at or before the issuance of Ext.P2 notification, the reconstitution made as per Ext.P2 is invalid. The amendment to the Rules is impeached as in excess of the rule-making power under Section 109 of the Act and in clear contradiction to the absence of any qualification for the members of the Board being prescribed by the primary legislation, namely, Section 80B of the Act.

5. In arguments on behalf of the petitioners, their learned Counsel dilated further to state that Sections 28B, 63, 70A and 80B were inserted into the Act by the same amending Act and while qualifications were prescribed by the Legislature in relation to appointment of State Co-operative Election Commission, Director of Co-operative Audit and Co-operative Arbitration Court in terms of Sections 28B, 63 and 70A, the Legislature consciously excluded any qualification being prescribed for members of the Board under Section 80B and it is therefore a clear indication that there was no rule-making power available to prescribe any qualification. It was also argued that Section 80B specifically regulates the rule- making power which is confined to what is contained in Section 80B(2), to wit, to prescribe the powers and functions and other conditions of appointment of the Members of the Board and the procedure to be followed by the Board. The pivotal argument in this regard is that by delegating the power to fix the conditions of appointment, the primary legislation did not confer the rule-making authority with any power to moke rules prescribing qualifications for the members while Rule 182(1), in terms of the impugned amendment, has the proviso prescribing qualification for the members of the Board. It is contended that this is ultra vires the Act and unconstitutional.

6. The learned Counsel for the petitioners also referred to the decision in Suresh v. State of Kerala : 2009 (3) KLT 315 rendered relying on State of Tamil Nadu and Anr. v. P. Krishnamurthy and Ors. : 2006 (2) KLT SN 82 (C. No. 103) SC : (2006) 4 SCC 517 laying down that lack of legislative competence to make subordinate legislation and failure to conform to the statute under which it is made or exceeding the limits of authority conferred by the enabling Act, are grounds on which a subordinate legislation can be challenged.

7. The petitioners further claim that by virtue of the quality of their appointment as' per Ext.Pl, they had a fixed tenure of office and deprivation thereof results in monetary loss and therefore, they are entitled to be compensated. Reference was made to the decision in Kerala Samsthana Chethu Thozhilali Union v. State of Kerala : 2006(2) KLT 270(SC) : (2006) 4 SCC 327 to dilate on the concept of unnecessary exercise of rule making power and to the decision in P. Venugopal v. Union of India, Writ Petition (Civil) 656 of 2007, 2008 (3) KLT 43 (C. No. 54) (SC), judgment dated 8th May, 2008 rendered by the Apex Court on the constitutional validity of a proviso introduced into the All India Institute of Medical Sciences (Amendment) Act. Reference was also made to the decision in Justice K.K. Nanderan v. State of Kerala 1994 (2) KLT 1004, to argue that if the appointment is of a permanent character and for a fixed tenure, such vested rights could not be deprived by amendment and the incumbent would be entitled to the financial benefits.

8. Opposing the Writ Petition, the private respondents, who are members of the Board as reconstituted as per Ext.P2 order, contended that the power to prescribe the conditions of appointment of the members of the Board includes the power to fix any qualification that the Chairman and the Members of the Board so constituted should have and that the power to so prescribe is within the rule-making power delegated as per Section 70B(2) of the Act. They also made specific reference to Section 109 of the Act, in particular, Sub-section (2)(xxxviii) thereof, which provides that in particular and without prejudice to the generality of the power of the Government to make rules, it has the power to make rules in relation to matters required or allowed by the Act.

9. The learned Government Pleader argued that the case in hand is not one which relates to an appointment as against a post but is the constitution of the Board which is the institution and the prescription of the qualifications that a person should have, to be a member of that Board, is nothing but the prescription as to the conditions relatable to the structure of the Board and hence, the Rule stands. He further argued adopting the submission on behalf of the private respondents, that Rule 109 provides fair room to make the impugned amendment. Reference was made to the decision of the Apex Court in Sri Justice S.K. Ray v. State of Orissa : 2003 (1) KLT SN 101 (C. No. 134) (SC) : (2003) 4 SCC 21, to point out that claim for compensation for loss of remainder period of tenure would not arise unless the office in question is one to which there were strings attached, in the sense that the effect of having held that office would result in deprivation of entitlement for appointment to any other office.

10. Section 80B of the Act provides for the constitution of a Co-operative Service Examination Board. That has to be done by the Government by issuing a notification. Sub-section (2) of Section 80B provides that the Examination Board shall consist of not more than three members and the term of the Board shall be five years. The constitution of the Board is thus provided for and the power to prescribe the powers and functions and other conditions of appointment of the members of the Board is also laid down. Rule 182B(1) provides that the Board shall consist of not more than three members as may be appointed by the Government by notification in the gazette, of whom one shall be the Chairman. The only embargo, going by Rule 182B, as also the provisions of the Act, on a person becoming a member of the Board, is that if he is eligible to receive any pension and has elected to draw and receive it, the same would be reduced from the amount that would be paid as salary in terms of Rule 182B(4). Bereft of that, neither the Act nor the Rules prescribes any inhibition regarding the holding of any office contemporaneous with being on the Board or even thereafter. Even on facts, it can be seen that at least one among the petitioners is an Advocate. The prescription in amended Rule 182B(1) is regarding the terms as to qualification of persons who could be brought together to be the members of the Board which is to be constituted by the Government under Section 80B. 'The conditions of appointment of persons to the Board', in this context, is not relatable to any appointment to a post which could be held by a single individual. Being a member of a Board is not the same as holding a post. It can also be seen that neither the Act nor the Rules provides for filling of any vacancy of a member of the Board, including its Chairman. All that the rule authorizes is that the Government may, in the absence of Chairman, by order, authorize a member of the Board to discharge the functions of the Chairman during the period of such absence. These provisions unequivocally show that what is made by recourse to Section 80B and Rule 182B is the constitution of a Board and not an appointment to a post. So much so, the prescription of a condition for being considered to be included in the membership of a Board is not the prescription of a qualification for appointment to a post. Hence, by making the impugned amendment, the Government only prescribed conditions in relation to the constitution of the Board. The challenge to the impugned amendment, therefore, fails on this count.

11. As regards the argument on behalf of the petitioners that Sections 28B, 63 and 70A incorporated into the Act along with Section 80B provide the prescription of qualification in the Act itself, all that is needed to be stated is that those provisions relate to appointment of individuals. Even in the matter of the Election Commission, in terms of Section 28B, the Commission has to be constituted as a single member body. In that context, the prescription of any identifying criteria, including with reference to any particular cadre or with reference to any qualification in Sections 28B, 63 and 70A are irrelevant to consider whether qualification could be prescribed for persons to be included as members of the Board, while constituting it. That ground also fails.

12. As already noticed, though the appointment is for a fixed tenure, the fact remains that such officiation does not, in any manner, create any vested right unlike on the facts of Justice K.K. Narendran (supra). In the legislation that fell for consideration in that case, there were inhibitions even in later appointments. In the case in hand, as already found, there is no inhibition by legislation to the members of the Board having any other avocation. No restrictions are imposed about future employment. The restriction, if at all, is only regarding the drawal of the entire salary as a member, if the member is also drawing pension. So much so, the plea that the petitioners are entitled to be paid full salary for five years is also not sustainable.

For the aforesaid reasons, this Writ Petition fails. The same is accordingly dismissed.