To Check If Special Rules Violate State & Subordinate Service Rules, It Needs To Be Seen If Both Can Co-Exist Without Colliding: Kerala HC

“When there is an inconsistency between two statutory provisions which occupy the same field of operation and both cannot co-exist together, it is said that they are repugnant to each other. In order to consider whether a provision in the Special Rules applicable to a particular service is repugnant to the general provisions contained in 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.”

If there is a repugnancy between any rule contained in Part II of KS & SSR and Special Rules applicable to any service, the Special Rules shall prevail as per Rule 2 of Part II of KS & SSR.

The court was considering whether Assistant surgeons appointed under the Kerala Health Service (Medical Officer) Special Rules, 2010 who have exercised their option to be placed in Speciality Cadre can later relinquish their right to such an appointment under Rule 38 of Part II of KS&SSR. 

The assistant surgeons who were appointed for placement in 2013 relinquished their right to appointment in Specialty cadre citing personal inconvenience. The Government rejected the requests for relinquishments citing Rule 6 of the Special Rules. As per Rule 6 of the Special Rules, option once exercised shall be final. Against this, they approached the Kerala Administrative Tribunal which held that the petitioner is entitled to relinquish the option exercised by them as per the Rule 38 of KS&SSR. The Government challenged this finding before the High Court. They contended that Rule 6 of special Rules overrides Rule 38 of Part II 0f KS&SSR

As per Rule 38 of Part II of KS&SSR, a person is entitled to relinquish any right or privilege to which they may be entitled under KS&SSR or Special Rules under certain conditions. The Tribunal had held that as per this rule, the Assistant surgeons were entitled to relinquish their option. It was held by the Tribunal that there was no repugnancy between Rule 38 of Part ii of KS&SSR and Special Rules as they were working on different planes.

However, the High Court held that both these rules directly contradict each other when applied in the case of option for placement of Assessment Surgeons and therefore it made them mutually inconsistent and repugnant. 

Applying the repugnancy test the court said:

"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," the court said. 

Allowing the appeal the court said that since the surgeons had  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.

Counsel for the Petitioner: Adv. Sunilkumar Kuriakose (GP)

Counsel for Respondents: Advocates Jelson J. Edampadam. M. Fathahudeen

Case No: OP(KAT) 420 of 2024 & OP(KAT) 422 of 2024

Case Title: State of Kerala and Anr v Dr. Chitra S. & State of Kerala and Anr v Dr. Chitra Revi

Citation: 2025 LiveLaw (Ker) 203