LexA.P. SHOWKATH ALI & ORS. versus STATE OF KERALA & ORS.
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A [2017] 7 S.C.R. 698 A.P. SHOWKATH ALI & ORS. v. STATE OF KERALA & ORS. (Civil Appeal No. 2827 of 2010) B AUGUSTI0,2017 [KURIAN JOSEPH AND R. BANUMATHI, JJ.[ Kera/a State and Subordinate Service Rules, 1958: rr. J 3AA and 39 - Special recruitment of thirty-seven Assistant C Sub-Inspectors of SC/ST category - For declaration of probation they were required to pass special test - The test not conducted for twelve years - Jn the meantime provisional promotion granted to them - invoking r. 39, Government order passed exempting them from passing the special test - Exemption order challenged by D appellants by filing writ petition - Petition dismissed by High Court - On appeal, held: Though r. J 3AA makes the passing of the test obligatory, and.order of the Government dated 5.02.2000 ruled that SC/ST employees are not entitled to any test exemption, but r. 39 is to operate notwithstanding anything prescribed under 1958 Rules or Special Rules or any Government order - Also in the facts E of the case, an equitable relief deserved to be granted by invoking r. 39 - Thus, order granting exemption is justified - Service Law - Probation - Equity. Equity: Purpose of and applicability of equity - Purpose of equity F jurisdiction is to prevent injustice and promote justice - Equity shcilf overpower technicality where human justice is at stake - There is difference between equity exercised by law-maker and the equity jurisdiction exercised by the Court - ResidumJ1 power is reserved by the law-maker to be used in a situation which are not otherwise G prescribed under law - Even the courts to exercise equity jurisdiction when there is no law operating in the field. H Dismissing the appeal, the Court HELD: 1. No doubt, under Rule 13AA of Kerala State and Subordinate Service Rules, 1958, the passing of test is obligatory 698 A.P. SHOWKATH ALI & ORS. v. STATE OF KERALA & ORS. 699 for memb~rs of the Scheduled Caste and Scheduled Tribe below A the rank of Sub-Inspectors in the Police Department. But it has to be seen that it is Rule 39 of 1958 Rules, 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 B 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 (which has ruled that Scheduled Caste and Scheduled Tribe employees who entered the service on or after . 1.1.1986, are not entitled to any test exemption) also does not C stand in the way of the Government invoking Rule 39. That apart, Ru.le 13AA operates in the matter of promotion whereas in the instant case, Rule 39 is operated in the matter of probation. [Para 10] [706-C-E] 2. The whole purpose of equity jurisdiction is to prevent D injustice and to promote justice. Equity shall overpower technicality where human justice is at stake. There is a lot of difference between the court exercising equity jurisdiction and the law-maker itself exercising it. A residuary power is reserved by the law maker, namely the Government, to be used in certain situation which are not otherwise prescribed under law. However, such power does not clothe the Executive to supplement a prescribed provision or to act in violation of the same. "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 field. [Para 14) [709-B-D] Roshanlal Kuthalia v."R.. B. Mohan Singh Oberoi (1975) 4 SCC 628: [1975) 2 SCR 491; Charles K. Skaria v. C. Mathew (1980) 2 SCC 752 : [1980] 3 SCR 71; Bola v. Sardana (1997) 8 SCC 522: [1997[ 2 Suppl. SCR 507; E F Shiv Kumar Sharma v. Santosh Kumari (2007) 8 SCC G 600 : [2007] 10 SCR 17 - relied on. 3. In ascertaining equity and justice in the present case, the simple question to be addressed is what would happen to those thirty seven Assistant Sub-Inspectors in service, in case H 700 SUPREME COURT REPORTS [2017] 7 S.C.R. A 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 pro
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