1. This appeal is from the judgment in o. P. No. 1097 of 1974 dismissing the petition. The prayer in that petition was that ext. P5 order be quashed and the 1st respondent, The state of kerala be directed to dispose of exts. P6 and p7 representations made by the petitioner in the original petition who is the appellant before the 1st respondent. The learned judge, As we indicated, Dismissed the petition.

2. The order ext. P5 indicates that it was passed in exercise of the powers conferred by s. 85 of the kerala municipal corporations act, 1961, For short, The act. The contention that was raised before the learned judge was that the person appointed, The 5th respondent in the petition and in this appeal was a member of the municipal common service and that an appointment under s. 85 (b) of the act cannot be made of a member of the municipal common service to the detriment of other members of the service by overlooking seniority. It was also alleged that the order was discriminatory and mala fide. These contentions were negatived.

3. Before us, The main point that was urged was that even assuming that s. 85 envisaged or permitted the appointment of a member of municipal common service to any of the posts mentioned in the section, Such power, Could be exercised by the commissioner only after rules had been framed by the government as the section has made the exercise of power "subject to rules". We shall extract the relevant part of the section:

"85. Special superior appointments. The council may, Subject to such rules as may be prescribed appoint

(b) engineers, Architects or experts in town improvement or town planning for the purpose of preparing, Executing or supervising any scheme or work undertaken by the corporation;"

emphasis was placed on the words "subject to such rules as may be prescribed" and it was urged that the wording of the section clearly indicated that the power of the council can only be exercised in accordance with the rules framed by the government and the rules not having been framed, The appointment of the 5th respondent based on the proceedings of the commissioner was not in accordance with law.

4. Counsel on behalf of the corporation brought to our notice the decisions of the supreme court in the dargah committee, Ajmer v. State of rajasthan (air. 1962 sc. 514) para. 7 and in the mysore state transport corporation v. Gopinath gundachar char (air. 1968 sc. 464 at page 465). Reference was also made to the decision of the madras high court in m. & s. M. Ry. Co., Ltd. Municipal council, Bezwada (air. 1941 madras 641 at page 649). This decision of the madras high court was affirmed by the judicial committee of the privy council in madras and southern mahratta ry. Co. Ltd. V. Bezwada municipality (air. 1944 pc. 71) though on the particular aspect decided by the madras high court there was no discussion or determination by the judicial committee of the privy council. The decisions have not dealt with the question of interpreting the section worded in a manner similar to s. 85 of the act. The argument there, Was, That without rules being framed, No appointment could be made even though the section empowering orders of appointment being made did not use words similar to those employed in s. 85 of the act that the authority empowered should exercise the power subject to rules framed under the act. These decisions are therefore not very helpful in deciding the question. The only decision exactly on point that has been brought to our notice is the one in surajmull nagarmull and others v. The commissioner of income tax (air. 1961 calcutta 578) relied on by counsel for the 5th respondent. This is a full bench decision and all the three learned judges have expressed themselves on this aspect dealing with the section very similarly worded as the one arising for consideration before us. The argument that was advanced before the calcutta high court was that the opening words of s. 37 (2) of the income - tax act (1922), "subject to any rules made in this behalf" indicated that the power of search and seizure had been given to the income - tax officer by parliament on condition that power would be exercisable only after rules are framed by the central government under s. 59 of the act. The matter is dealt with in para. 16 of the judgment of justice p. B. Mukharji. We shall extract that paragraph:

"there are many reasons why it is difficult to accept this argument that the existence of rules is a condition precedent to the exercise of the power of search and seizure under s 37 (2) of the income - tax act. The first reason is that the words are not 'subject to rules made' but 'subject to any rules made' then if only one rule is made regulating say only the hours of search, That would justify the exercise of the whole power of search and seizure which may still remain objectionable according to mr. Sanyal independently of the regulated hours of search. That seems to indicate that search and seizure would be regulated by rules, If any, Are made in that behalf but not that the power itself will remain suspended unless such rules are made. To make the rules a condition precedent to the exercise of the power to search and seize will lead also to anomalous result because rules may be changed from time to time. The situation will be odd indeed for instance if some rules were made when search and seizure were ordered but while they were pending these rules were replaced or suspended what is the effect then on pending search and seizure? secondly, The words "any rules made in that behalf" mean not merely made already but also those to be made in future. The language in this respect may be contrasted with the language in s. 10 (7) of the income - tax act which uses the words "in accordance with the rules contained in the schedule to this act. " it is on this ground that the supreme court decision in air. 1960 s. C. 430 may be distinguished because the words there were "except and in accordance with" (see pages 432 and 438 of the said report air. 1960 s. C. 430). The words 'subject to any rules made' are not unusual words in statutes and it the intention was to prevent exercise of the power of search and seizure before making of any rules, Parliament could have used suitable words like "except and in accordance with rules" or of similar nature as used in narendra's case. To accept mr. Sanyal's attractive argument will be to convert s. 37 (2) of the act into a piece of conditional legislation which according to its well - known features, It is not. The only reasonable and proper interpretation appears to be that the power contained in the section is to be regulated by such rules as are either already made or may be made in future. But they cannot be construed as a condition precedent to the exercise of the power itself. The rules are regulatory of the power but their existence is not a pre - condition for the operation of the power under statute. For these reasons i hold that i cannot interpret s. 37 (2) to mean that the power conferred thereby remans suspended until rules are made and becomes operative when such rules are current. "

justice sinha also dealt with this matter in para. 67 of the judgment:

"it will be necessary to clear the ground by deciding point no. 3 i) first. If sub - s. (2) never came into operation until rules were framed in this behalf, Then indeed, It is unnecessary to proceed further, Because the two authorisations were made and the search and seizure effected, At a point of time when no rules had been framed, And consequently, The entire operation would be contrary to law. It will be observed that the expression used is "subject to any rules made in this behalf". This should be contrasted with the expression used in s. 10 (7) which lays dawn that the profits and gains of any business of insurance and the tax payable thereunder shall be computed

- "in accordance with the law contained in the schedule to this act. " in s. 58 0) (3) the expression used is "subject to such rules as the central board of revenue may make in this behalf". There must be some difference between these expressions. Where the expression used is "in accordance with the rules" there is no difficulty. In such a case, The rules must come first, Otherwise there cannot be anything, "in accordance" with it. But where the expression is "subject to rules", I do not see why the rules must necessarily come first. The particular provision may itself lay down the law, Which may be supplemented or modified by statutory rules framed in that behalf where, Of course, It is found that the existing provisions in a statute cannot possibly be given effect to, Without the framing of rules, That is a different matter. If however, It is possible to give effect to the provisions as they stand, Then i do not see the justification in holding that the provision does not come into force until rules are framed simply because it has been made "subject to any rules made in this behalf". In my opinion, It is possible to give effect to the provisions of law contained in sub - s. (2) of s. 37, Even without rules. Consequently, This argument fails. Our attention has been drawn to s. 41 of the arbitration act, 1940 which lays down that "subject to the provisions of this act and of rules made thereunder," the provisions of the code of civil procedure should apply to all proceedings before the court etc. It has never been argued that the code did not apply until rules were framed. "

and justice p n. Mookerjee observed as follows in para. 102 of the judgment:

"i am, However, Unable to accept mr. Sanyal's contention. The words are plain and they do not suggest necessary pre - existence of the rules. The rules may be existing or future and, If, At the point of time, The powers under the section are sought to be exercised, There be any rules, Relevant for the purpose the exercise of those powers must, Of course, Be subject to to the same. The phrase, However, Does not, In my opinion, Necessarily suggest pre - existence of any rules and does not forbid the exercise of the powers in question without the framing of rules. The sub - section, Again, As we shall see hereinafter, Would be perfectly constitutional even without rules and so there is no occasion here for construing the phrase differently to avoid unconstitutionality of this particular statutory provision. Mr. Sanyal relied on the decision of the supreme court in the case of narendra kumar v. Union of india, Air 1960 sc 430, In support of his suggested construction, But it is obvious that the said decision, Far from supporting mr. Sanyal, Is really against his aforesaid contention. There the relevant words were 'except and in accordance with', Which obviously contemplate pre - existence of the particular thing, Contemplated therein, As, Unless it is there, No question can arise of acting "except and in accordance with" the same, Or, Even "in accordance with" the same. In my opinion, There is, Ordinarily, - and as it is usually found, - a fundamental difference between the two phrases "subject to" and "in accordance with", - not to speak of the more extreme and emphatic phrase "except and in accordance with", - in that the latter contemplates necessary pre - existence of the particular thing, While, Normally speaking, The former would not necessarily contemplate such - pre - existence and, Particularly, When the words are "subject to any rules made in this behalf ", - and here i lay special stress on the word 'any', - they contemplate rules, If any, Or in other words, The phrase is synonymous with and should be read as 'subject to rules, If any, Made in this bedalf'. Incidentally i may point out here that s. 41 of the indian arbitration act, 1940, To which our attention was specifically drawn by mr. Meyer in the course of his argument, Even though much weaker and less happily worded, The word 'any' not being there in the said section, Seems to support the above view, As it has never been contended, - and it is almost impossible to contend, - that, Although the old indian arbitration act of 1899 and the arbitration provisions in the code of civil procedure, Which constituted, At the time, The entire law of arbitration in this country, Were repealed by this new act of 1940, - thus creating and leaving a void without the said new act, - the aforesaid s. 41 of the new 1940 act, Which provided for the procedure and powers of courts in, The nutter of arbitration, Could not operate without prior framing of rules. Indeed, It seems to me that, If the legislature's intention was, As suggested by mr. Sanyal, The statute would have been differently worded as in narendra's case, Supra, Or in a like or similar manner (vide, For example, S. 10 (7) of the indian income - tax act itself, Which provides a fitting contrast to stress the distinction). I would, Accordingly, Reject this submission of mr. Sanyal. "

5. These pronouncements give a complete answer to the contentions raised by counsel. We are in respectful agreement with the views expressed therein.

6. A memorandum of cross - objection has been filed against the observations in the judgment that the petitioner is qualified to hold the post to which the 5th respondent had been appointed. Reference was made to r. 11, Second proviso, Of the kerala municipal common service rules, 1967 and it was urged that the government having not framed any rules and not having determined the qualifications, The qualifications prescribed for similar posts in government service will have to be insisted upon and the petitioner being a mechanical engineer was not qualified to hold the post to which the 5th respondent was appointed. It was submitted before the learned judge that in fact by ext. P2 order qualifications have been prescribed by the government and this submission was accepted. The last two paragraphs of the order in ext. P2 relied on have been brought to our notice and we shall extract those paragraphs.

"as regards the filling up of the post of town planning officer grade i under the trivandrum corporation which is the subject matter of o. P. 5166/ 70, High court, It is clarified that the matter is being examined by the government as directed in the judgment in o. P. No. 5166/70 and separate orders will be issued by the government.

the director of municipalities will review the promotions if any, Made to the posts of assistant engineers and equated category in the municipal common service on the basis of the high court judgment. "

from the above paragraphs we are unable to discern any prescription of qualification. We therefore set aside the observation in the judgment that by virtue of ext. P2 the petitioner cannot be said to be not qualified.

7. Regarding the appointments of respondents nos. 6, 7 and 8, Who are admittedly government employees now functioning under the various municipalities sufficient directions have been given by the judgment under appeal that government should take expeditious steps to see that they are withdrawn from the municipal common service; and that the government will examine whether it is necessary or appropriate to continue these persons in the municipal common service, If they are to be withdrawn the question whether they can be allowed to continue under r. 12 should be considered and appropriate orders passed by the government.

8. Subject to our observations in para. 5 and 6 above, We dismiss this appeal. We make no order as to costs.