Justice A. Muhamed Mustaque, Justice P. Krishna Kumar, Kerala High Court
To Determine If Provision In Special Rules Is Repugnant To State & Subordinate Rules, The Test Is Whether Both Can Co-Exist Without Collision When Applied: Kerala High Court
|The Kerala High Court held that Assistant Surgeons who had opted for placement in the Specialty Cadre under the Special Rules cannot later relinquish their right under the State & Subordinate Service Rules.
The Kerala High Court explained that to determine if a provision in the Special Rules is repugnant to the State and Subordinate Rules, the test is whether both can co-exist without collision when applied in a given situation.
The Court held that Assistant Surgeons who had opted for placement in the Specialty Cadre under the Kerala Health Service (Medical Officers) Special Rules, 2010 cannot later relinquish their right under Rule 38 of Part II of the Kerala State & Subordinate Service Rules (KS&SSR). The Court set aside the Kerala Administrative Tribunal’s (Tribunal) decision, which had earlier allowed the Petitioners to withdraw their option for Specialty Cadre placement.
A Division Bench of Justice A Muhamed Mustaque and Justice P Krishna Kumar held, “In order to consider whether a provision in the Special Rules applicable to a particular service is repugnant to the general provisions contained in the KS&SSR, it is beneficial to apply a simple test viz., whether both provisions can co-exist without going into a collision course while applying them in a given situation.”
Government Pleader Sunilkumar Kuriakose appeared for the Petitioner, while Advocate Jelson J.Edampadam represented the Respondent.
Brief Facts
The Petitioners, Assistant Surgeons in the Kerala Health Service, had opted for placement in the Specialty Cadre in 2013. However, in 2024, they submitted a request to relinquish their placement, citing personal inconvenience. The State Government rejected their request, stating that Rule 6 of the Special Rules explicitly prohibited relinquishment after an option has been exercised. The Government proceeded with their posting in the Specialty Cadre, prompting the petitioners to challenge the decision before the Kerala Administrative Tribunal (KAT).
The Tribunal held that Rule 38 of Part II of the KS&SSR permits government servants to relinquish any right or privilege, provided it is not against public interest. The Tribunal found that this general provision overrode the restriction in Rule 6 of the Special Rules and allowed the petitioners to withdraw their Specialty Cadre placement.
The State Government appealed the Tribunal’s decision before the High Court, arguing that Rule 6 of the Special Rules is final and overrides Rule 38 of KS&SSR due to Rule 2 of Part II KS&SSR, which states that Special Rules prevail over general rules in case of conflict. The Government contended that allowing relinquishment would disrupt the administrative structure of the Specialty Cadre and create vacancies that could not be easily filled.
Court’s Reasoning
Applying this test, the High Court explained, “While Rule 38 of the general rules permits officials to relinquish any right or privilege to which they are entitled (in the given instance, the right to appointment in the Speciality Cadre), Rule 6 of the Special Rules explicitly prohibits such relinquishment once the option for placement has been exercised. Thus, when applied to the option for placement of Assistant Surgeons, these provisions directly contradict each other—one allowing relinquishment and the other forbidding it—making them mutually inconsistent or repugnant. Hence, in view of the provisions contained in Rule 2 of Part II KS&SSR, the provisions in the Special Rules will prevail over the repugnant part of the general rules.”
“On going through the pleadings made by the respondents before the Tribunal, it is evident that both of them had submitted the option for appointment in Speciality Cadre in the year 2013, but furnished the respective relinquishment letter only in the year 2024, when the Government took steps for posting them in the Speciality Cadre, apprehending that they might be transferred to a faraway place from their hometown,” the Bench remarked.
Consequently, the Court held, “In view of the above findings, we allow the petitions and set aside the impugned order. However, as the respondents have raised concerns about being posted far from their hometown, on humanitarian grounds, the Government shall consider these grievances when assigning them to the Speciality Cadre.”
Accordingly, the High Court allowed the Petition.
Cause Title: The State of Kerala & Anr. v. Dr. Chitra S (Neutral Citation: 2025:KER:22856)
Appearance:
Petitioners: Government Pleader Sunilkumar Kuriakose
Respondents: Advocates Jelson J. Edampadam and M. Fathahudeen