(2012) 233 KLR 206 IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT: THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 6TH DAY OF JANUARY 2012/16TH POUSHA 1933 WPC.No. 1125 of 2007 (H) ===================== PETITIONER(S) ============= PRAMOD KUMAR.V.P., HIGH SCHOOL ASSISTANT (ENGLISH),GOVT. HIGH SCHOOL ALIPARAMBA,RESIDING AT VELLILAM PARAMBATH HOUSE, EDATHARA,THOOTHA P.O. PERINTHALMANNA- (VIA),MALAPPURAM-679 375. BY ADVS.SRI.N.SUGATHAN SMT.VARSHA BHASKAR RESPONDENT(S) ============= 1. THE DISTRICT OFFICER, KERALA PUBLIC SERVICE COMMISSION DISTRICT OFFICE, MALAPPURAM. 2. THE KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY THE SECRETARY PATTOM,THIRUVANANTHAPURAM. 3. THE DEPUTY DIRECTOR OF EDUCATION, MALAPPURAM. 4 THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT PERSONNEL & ADMINISTRATIVE REFORMS (RULES) DEPT., SECRETARIAT,THIRUVANANTHAPURAM. R1 & R2 BY ADV. SRI.P.C.SASIDHARAN, SC, KPSC R3 7 R4 BY GOVERNMENT PLEADER SMT.NISHA BOSE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01-12-2011 , ALONG WITH WPC. 2243/2007, WPC. 11329/2011, THE COURT ON 06/01/2012 DELIVERED THE FOLLOWING: tss W.P.(C) NO.1125/2007 APPENDIX PETITIONER'S EXHIBITS
RESPONDENT'S EXHIBITS
TRUE COPY P.S. TO JUDGE tss T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). Nos.1125/2007-H, 2243/2007-P & 11329/2011-M ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 6th day of January, 2012 Head Note:- Kerala State & Subordinate Services Rules, 1958 - Rules 3(b) of Part II and 15(a) - the only right of a candidate included in the list is for consideration for appointment in any vacancy and that is not a vested right. Kerala State & Subordinate Services Rules, 1958 - Rules 3(b) of Part II and 15(a) - The Recruitment Rules can be amended by the Government even after the selection process starts. If the amendment is retrospective, then that can affect the rights of the candidates included in the ranked list also. Kerala State & Subordinate Services Rules, 1958 - Rules 3(b) of Part II and 15(a) - In the matter of appointments, the law applicable at the time of filling up the vacancies has to be taken into account and not the law prevailing when the rank list was published. J U D G M E N T These three writ petitions concern interpretation of Rule 15(a) of Part II Kerala State & Subordinate Services Rules (K.S. & S.S.R) as amended with effect from 02/02/2006. The petitioners in W.P.(C).Nos. 1125/2007 and 2243/2007 have been advised and appointed after 2/2/2006 which is sought to be cancelled by the Public Service Commission (shortly the 'P.S.C') in the light of the amendment which is effective from 02/02/2006. The petitioner in W.P.(C).No. 11329/2011 seeks appointment in the light of inclusion of his name in the ranked list published for NCA (No Candidate Available) vacancies. Since common questions have been raised, these writ petitions are disposed of together. 2. The facts of these cases are as follows: The petitioner in W.P.(C).No.1125/2007 submitted an application pursuant to the notification issued by the P.S.C for appointment as High School Assistant (English) in Government High Schools in various Districts. He applied for recruitment in Malappuram District. After the completion of the selection process by way of written test and interview, a ranked list has been published in 17/10/2005 (Ext.P1). He was included as ranked No.3 in supplementary list for O.B.C (Other Backward Community). Ext.P2 dated 03/02/2006 is the letter advising the petitioner for appointment as H.S.A (English). He was appointed as per Ext.P3 order dated 17/05/2006 of the third respondent and, accordingly, he joined duty on 05/06/2006. 3. Ext.P4 is the show cause notice issued by the Commission conveying the proposal to cancel his advise. Reliance is placed on the amendment of the Rules under K.S & S.S.R which is effective from 02/02/2006. 4. The proposal for cancellation is on the basis that the petitioner was actually appointed in an OBC vacancy. Prior to that, when turn of SIUC/AI arose, as no candidate was available, the turn was passed over to Other Backward Community and, accordingly, rank No.2 in the supplementary list of OBC Smt.Sripriya C.K was advised in the order of rotation. When the next turn for OBC arose, petitioner was advised. When the Rules were amended as per G.O.(P)No.7/2006/P&ARD dated 08/03/2006 with retrospective effect from 02/02/2006 Smt.Sripriya was not entitled to be advised to the turn of SIUC/AI. Therefore, she has to be advised against the subsequent OBC turn as she was above the petitioner in the ranked list and the petitioner was not entitled to be advised against the OBC turn. To this, the petitioner submitted a detailed explanation as per Ext.P6 and the substantial contention raised is that the vacancy to which advise was made of Smt. Sripriya and the petitioner, arose prior to 02/02/2006. 5. It is at that stage, the writ petition was filed. Exts.P7 and P8 are certain Circulars and Government Orders which are relied upon by the petitioner to show that the amendment will not apply to a selection already completed, and will be applicable only to future selections. 6. As regards the facts of W.P.(C).No. 2243/2007 are concerned, the petitioner therein applied for the post of H.S.A (English) in Thrissur District and the ranked list was published on 9/11/05 (Ext.P1). She was included as rank No.2 in the supplementary list of Dheevara Community. Ext.P2 dated 17/02/2006 is the advice memo and Ext.P3 dated 16/05/2006 is the appointment order and she joined duty on 01/06/2006. Ext.P4 is the show cause notice proposing to cancel the advice. The stand taken therein is that the turn of 48 OX was passed over as no candidate was available and the same was filled up by advising the petitioner, as the petitioner is the candidate immediately next to the passed over community. In the light of the amendment which is effective from 02/02/2006, the turn of 48 OX cannot be passed over and a fresh selection will have to be conducted. 7. Ext.P6 is the copy of the explanation. Therein also the petitioner relies upon Exts.P7 and P8 Circulars. 8. The amendment of the Rule is by Ext.P5 notification, produced in W.P.(C).Nos.1125/2007 and 2243/2007. The said notification is dated 08/03/2006 and the date of effect is 02/02/2006. Therefore, the same has got retrospective effect. Rule 15(a) of Part II K.S. & S.S.R., as amended, will show that "if a suitable candidate is not available for selection from any particular community or group of communities specified in the Annexure, such vacancy shall be kept unfilled, notified separately for that community or group of communities for that selection year and shall be filled by direct recruitment exclusively from among that community or group of communities." There is a definition "Selection Year" by way of an explanation, which reads as follows:- "Explanation:- "One 'selection year' for the purpose of this rule shall be the period from the date on which the rank list of candidates comes into force to the date on which it expires." This is also a newly introduced concept. The note therein provides that:- "Note:- "All pending uncompensated turns of vacancies such as temporarily passed over, no candidate available and non-joining duty as on the 2nd February, 2006, shall be compensated". 9. Herein, the stand taken by the P.S.C obviously is that in the light of the amended Rule, and its applicability, there cannot be a temporary pass over if a suitable candidate is not available for selection from a particular community as provided earlier in the unamended Rule. The vacancy will have to be notified separately for that community or group of communities. Therefore, the vacancies to which the petitioners were advised and appointed being temporarily passed over, the same goes against the amended Rules. Accordingly, the cancellation is required. 10. Ext.P9 in W.P.(C).No.1125/2007 is the order cancelling the advice for appointment. It appears that in W.P.(C).No.2243/2007 no further orders were passed in the light of the interim order passed in the case. 11. In both the writ petitions, the petitioners are continuing based on the interim orders. Shri N.Sugathan, learned counsel for the petitioners submits that the ranked list was published prior to the introduction of the amendment. The petitioners were appointed prior to the notification Ext.P5 dated 08/03/2006. Their advice was prior to 08/03/2006. It is therefore submitted that obviously, the advice of the petitioners were to vacancies which occurred prior to 02/02/2006, the date of effect of the amendment also. Therefore, their rights have been crystallised as on the dates of occurrence of vacancies. If that be so, the advice made in the temporarily passed over turns, which is a method provided under the unamended Rule, is well protected. It is pointed out that the amendment can apply only to future selections. It is also the case of the petitioners that the selection process was completed before the amendment. Finally, it is argued that the meaning of the term "selection year" introduced as per the amendment can only apply to a ranked list which comes into force on or after 02/02/06. 12. In support of the plea that the amendment will not effect the right of the petitioners, reliance is placed on the following decisions:- Varghese and others v. State of Kerala and others [1981 KLT 458 (FB)], Sreekumar v. Travancore Devaswom Board [1993 (1) KLT 740 (DB)], Mohanan v. Director of Homoeopathy [2006 (3) KLT 641 (F.B.)] and Secretary, A.P.Public Service Commission v. B.Swapna and others [(2005) 4 Supreme Court Cases 154]. 13. The learned Standing Counsel for the Commission Shri P.C.Sasidharan and the learned counsel for the petitioner in W.P.(C).No.11329/2011 Shri P.Nandakumar opposed the contentions of Shri N.Sugathan. As far as the petitioner in W.P.(C). No.11329/2011 is concerned, he has been included in the ranked list for the post of H.S.A. (English) in Thrissur District, which is for filling up the N.C.A turn for other Christian community (OX). He is serial No.1 in Ext.P1 ranked list. Therefore, he is claiming appointment as against the post occupied by the petitioner in W.P.(C).No.2243/2007. 14. Shri P.C.Sasidharan, learned Standing Counsel for the Commission submitted that the amendment is retrospective from 02/02/2006 and, therefore, an advice can be made after the coming into force of the amendment only in terms of the amended Rule 15(a) of Part II K.S. & S.S.R. Therefore, the NCA vacancies will have to be renotified and the Note to Rule 15(a) will not protect the case of the petitioners. It is pointed out that the petitioners have no vested right for appointment by mere inclusion in the ranked list. The amendment is not under challenge in the writ petitions. The learned Counsel further submitted that the plea for considering a claim as on the date of occurrence of vacancies cannot be accepted in a selection like this since various vacancies will be reported from time to time to the P.S.C and if the rights of candidates will have to be determined based on the dates of occurrence of vacancies, innumerable candidates can stake a claim either with regard to their qualification or for other consideration based on the said date, which will scuttle the entire selection process. It is pointed out that the said plea accepted by the Full Bench in Varghese and others v. State of Kerala and others [1981 KLT 458 (F.B)], is in a case for promotion, wherein the rights of the promotees were directed to be considered in terms of the date of occurrence of vacancy. Herein, the said concept may not apply. Reliance is placed on the decision rendered by this Court in W.P.(C).No.19525/2006 which is confirmed by the Division Bench in W.A No.777/2011. It is pointed out that this Court accepted the plea of the Commission that after 02/02/2006, the advice can be made only as per the change of law introduced by amendment of the statutory Rules. It is pointed out that the selection year will start from the date of publication of the ranked list and, therefore, the contentions of the petitioners' counsel cannot be accepted. It is pointed out that the Circulars issued by the Commission explaining the terms of the amendment have been upheld by this Court in W.P.(C).No.19525/2006 and by the Division Bench in W.A No.777/2011. 15. Shri P.Nandakumar relied upon the decision in Mohammed Najim v. State of Kerala [1993 (2) KLT 721] and that of the Apex Court in High Court of Delhi and another v. A.K.Mahajan and others and connected cases [AIR 2009 Supreme Court 2497] and in Deepak Agarwal and another v. State of Uttar Pradesh and others [(2011) 6 Supreme Court Cases 725] to contend for the position that the right if any of persons included in the ranked list could be varied by retrospective amendment. There is no restriction on the power of the Government to amend the Rules retrospectively even if the selection process had started. It is submitted that the petitioners in W.P.(C).Nos.1125/2007 and 2243/2007 have not acquired any vested right and, therefore, their rights will have to yield to the amended provisions. 16. The amended Rule 15(a) Part II K.S. & S.S.R, as already noted, if applied herein, the NCA vacancies will have to be renotified. The amendment is effective from 02/02/2006. As far as the legal right of a candidate included in the ranked list like the one herein is concerned, there is an express provision under Rule 3(b) of Part II K.S. & S.S.R providing that "the inclusion of a candidate's name in any list of approved candidates for any service (State or Subordinate) or any class or category in a service, shall not confer on him any claim to appointment to the service, class or category." The contentions raised, will have to be analysed in the light of these provisions. 17. The argument of the learned counsel for the petitioners Shri N.Sugathan is that the rights of the candidate will have to be assessed as on the date of occurrence of vacancy itself. 18. The decision of the Full Bench in Varghese's case [1981 KLT 458] which followed an earlier decision of another Full Bench in James Thomas v. Chief Justice [1977 KLT 622], concerns claim for promotion. It was declared by the Full Bench in Varghese's case [supra] that "it is the time of occurrence of vacancy that will be relevant for determining the question of promotion and not the time the order of promotion is passed. The relevant date must be definite and not depending upon the volition of the authorities as otherwise the determination would be arbitrary." This decision is relied upon by Shri Sugathan to contend for the position that herein the vacancies were reported prior to the date of effect of amendment itself. The proforma for reporting vacancies have been produced along with a memo in W.P.(C).No.2243/2007 by the learned counsel wherein there is a column for giving the date of occurrence of vacancy also. The decision of the Division Bench in Sreekumar v. Travancore Devaswom Board [1993 (1) KLT 740] reiterates the principle that the method of selection has to be determined at the time of notification and cannot be altered after the issuance of the notification. A reading of the Judgment will show that the issue was considered in a different context. Therein, Rule 9 of Travancore Devaswom Recruitment Rules came up for interpretation. The Bench was of the view that the Board cannot have additional requirements for selection either as eligibility or as suitability at a later point of time and after the publication of the notification. It is in that context the principle above quoted was laid down. Herein, the position is not identical,as the situation has arisen due to a retrospective amendment of the Rules of KS & SSR. 19. In Secretary, A.P.Public Service Commission v. B.Swapna and others [(2005) 4 SCC 154] in para.10 it was held as follows:- "There are two principles in service laws which are indisputable. Firstly, there cannot be appointment beyond the advertised number and secondly norms of selection cannot be altered after the selection process has started." This was also heavily relied upon by the learned counsel for the petitioners. The learned counsel further relied upon the Full Bench decision in Mohanan v. Director of Homoeopathy [2006 (3) KLT 641]. 20. The Full Bench in Mohanan's case [supra] considered the effect of amendment of the Special Rules which was issued after the selection process was started, which included changes in the qualifications for certain posts. Therein, the Full Bench, after considering elaborately various decisions of the Apex Court and this Court, took the view that the amended Special Rules will apply to vacancies which arose after the coming into force of the amendment. It was thus declared as follows: "Therefore, we have no doubt in our mind that once an amendment regarding qualifications and method of appointment etc., in respect of a particular post comes into force any vacancy which arises subsequent to the commencement of the amended rules can be filled up only in accordance with the amended rules notwithstanding the currency of any rank list published by the P.S.C, selection of which was initiated prior to the amendment of the rules." (para.22). 21. The issue herein will have to be considered in light of the retrospective nature of the amendment, namely, Ext.P5 notification dated 08/03/2006 which is effective from 2/2/2006. Significantly, the amendment or its validity is not under challenge in the writ petitions filed by the candidates appointed. Therefore, the question whether the amendment is valid or not is not one arising for consideration herein. The power of the Government to amend Rules retrospectively is unquestionable, as held by the Full Bench in Mohanan's case (supra). 22. A reading of the Full Bench decision in Mohanan's case [2006 (3) KLT 641] will show that the Full Bench considered the issue elaborately in the light of the various principles laid down in different decisions by the Apex court and this Court. In fact, the Full Bench resolved the apparent conflict of two Division Bench decisions of this Court, namely, Kunju Kunju v. State of Kerala [2005 (1) KLT 364] and Stalin v. State of Kerala [2006 (1) KLT 493]. In the first of the decisions, the amendment was retrospective. Therein, the Division Bench was of the view that the limited right of a candidate included in the list cannot be taken away by any authority amending the terms and conditions in the advertisement or by amending the recruitment rules unless the amendment is made with retrospective effect. (emphasis supplied) The later decision in Stalin's case [2006 (1) KLT 493] the amendment was only prospective. Therefore, the Full Bench in Mohanan's case [2006 (3) KLT 641], in para.5 held that there is no conflict between these two decisions. 23. A reading of the Judgment in Kunju Kunju's case [2005 (1) KLT 364] will show that, their Lordships were of the view that the candidate who applies for appointment is not having a vested right to get selected. The view taken therein in paragraph 11 is as follows:- "It is, thus, clear that a person who applies for appointment to a post in response to an advertisement does not acquire any right much less a vested right to get selected. If he is eligible and is otherwise qualified in accordance with the recruitment rules governing the post and the terms and conditions contained in the advertisement, he gets a right of being considered for selection in accordance with the rules as they existed on the date of advertisement." 24. The Full Bench in Mohanan's case [2006 (3) KLT 641] also reiterated the above principle as evident from para. 20. It was held that "the only right he gets is that of consideration for appointment in any vacancy that may arise. While agreeing with the said proposition, we are of the opinion that that principle would apply with equal force to a select list actually in force at the time when amendment occurs, meaning thereby that in such cases also, the vacancies arising subsequent to such amendment can be filled up only in accordance with the amended recruitment rules notwithstanding the currency of the select list." 25. The above observations were made by the Full Bench after considering the principles laid down by a Division Bench of this Court in Mohammed Najim's case [1993 (2) KLT 721], relied upon by Shri P.Nandakumar. Suffice it to say therefore, that the only right of a candidate included in the list is for consideration for appointment in any vacancy and that is not a vested right. This is the effect of Rule 3(b) of Part II K.S. & S.S.R, we have already noticed. Therefore, the argument of the learned counsel for the petitioners will have to be considered in the light of this principle. 26. I will now deal with the contention that the right of the candidate will have to be determined as on the date of occurrence of the vacancy. In fact, an earlier Division Bench decision in Velayudhan v. Secretary to Government [1985 KLT 793] in para.8 has rejected a similar contention. Therein, after referring to the principles stated in James Thomas v. Chief Justice [1977 KLT 622 (FB)] and other cases, the Division Bench considered the right of a person claiming promotion and right of a person seeking appointment pursuant to the inclusion in the select list, vis-a-vis the date of occurrence of vacancy. In para.8 it was explained thus: "A vacancy which arises in a higher cadre in a service has to be filled up either by promotion from the lower cadre in the same service or by direct recruitment. This depends upon the rules governing the matter. If it is a vacancy which has to be filled up by promotion from the lower cadre the eligibility has to be determined in accordance with the rules. Only those who were eligible on the date of occurrence of the vacancy can claim the post. Nobody who has no right to be promoted in that vacancy on the date of occurrence of the vacancy, even if he subsequently becomes entitled for the post, can have a legal right to insist that he should get the post. In the case of direct recruitment, the relevant date for determining whether a candidate is qualified or not is that which will be mentioned in the notification inviting applications. The date of occurrence of the vacancy will not at all be relevant as in the case of a promotion from the lower cadre in the same service." 27. Therefore, the Division Bench was of the view that the date of occurrence of vacancy will not at all be relevant as in the case of promotion from lower cadre in the same service. The same is a complete answer to the contention raised by the learned counsel for the petitioners that the right of the advised candidates for advise and appointment has to be considered as on the date of occurrence of vacancy. As rightly contended by the learned counsel for the Commission Shri P.C.Sasidharan, if the right of a candidate included in the ranked list will have to be considered as on the date of occurrence of the vacancy so many imponderables may develop. As far as the qualification and eligibility of candidate seeking direct recruitment is concerned, it will have to be considered as on the last date of receipt of the application, if the rules do not provide for any other contingency. This is a well settled legal position. Beyond that, it cannot be considered as on the dates of occurrence of vacancies since in Public Service vacancies may occur on different dates and reporting of vacancies wherein P.S.C. is involved, will also be from time to time. As far as the practice adopted by the Commission is concerned, it appears that the vacancies reported upto the date of publication of the notification will be considered for advice in one block. Thereafter, from time to time, vacancies may occur during the live period of the ranked list and it may be reported by separate processes from time to time. The turn of the candidates included in the ranked list will have to be considered in terms of Rules 14 to 17 of KS & SSR by the Commission for advising candidates from time to time. If that be so, it can be seen that the contention of the learned counsel for the petitioner that it will have to go by the date of occurrence of vacancy, cannot be accepted. In the decision relied upon by Shri P.Nandakumar, namely, High Court of Delhi and another v. A.K.Mahajan and others and connected cases [AIR 2009 Supreme Court 2497] in paragraph 11 while considering a plea that a right for consideration for promotion is a vested right, the Apex Court negativing the contention, held thus in para.11: "........The High Court has observed that the benefit of consideration, which was available to the writ petitioner No.8 prior to the retrospective amendment of the Rules, was not available to him after the amendment of the Rules. In our opinion, this is an incorrect notion. There can be no benefit of consideration. To be considered is a right of employee but merely being considered, in itself, is not a benefit as it may or may not result in the selection or promotion of an employee and hence it is in the nature of a chance. A mere chance of promotion being affected by amendment is in our opinion inconsequential. This Court has time and again held that since promotion is not a right of the employee, a mere chance of promotion if affected cannot and does not invalidate the action on the part of employer." The effect of a retrospective amendment of a rule was under consideration therein. 28. In Deepak Agarwal and another v. State of Uttar Pradesh and others [(2011) 6 Supreme Court Cases 725] in para.26, the law was explained thus:- "It is by now a settled proposition of law that a candidate has the right to be considered in the light of the existing rules, which implies the "rule in force" on the date the consideration took place. There is no rule of universal or absolute application that vacancies are to be filled invariably by the law existing on the date when the vacancy arises. The requirement of filling up old vacancies under the old rules is interlinked with the candidate having acquired a right to be considered for promotion. The right to be considered for promotion accrues on the date of consideration of the eligible candidates. ....." The above paragraph was relied on by learned counsel Shri Nandakumar, to point out that even in a case of promotion different circumstances can arise requiring a variation of the principles as generally understood. 29. The legal position therefore, as settled by the decision of the Full Bench in Mohanan's case [2006 (3) KLT 641], is that as far as the persons included in the ranked list are concerned, there is no vested right for appointment. The Recruitment Rules can be amended by the Government even after the selection process starts. If the amendment is retrospective, then that can affect the rights of the candidates included in the ranked list also. 30. I shall now refer to the decision of the Division Bench in Mohammed Najim's case [1993 (2) KLT 721] wherein the sufficiency of the power of the Government to amend Rules retrospectively, even after the selection process started, was considered. There, the notification was for the post of Amin by direct recruitment. After the selection process started, an amendment was effected by which it was retrospective from 24/02/1981. The notification by the P.S.C was on 12/03/1985. After the amendment, Amins were to be appointed by promotion of Attenders of Class II. Only if no suitable and qualified Attender is available to be promoted, direct recruitment can be made. 31. The Division Bench, elaborately, considered the contentions in the light of the principles stated by the Apex Court and this Court in various cases. The Bench was of the view that if the amendment is retrospective then unless any constitutional right of the candidate is affected the amendment will have to be given its import and effect. In paragraphs 12 and 15 it was held thus: "12.....Both these decisions therefore affirm the principle that though an applicant has a right to be considered for the post in accordance with the law as it existed at the time of commencement of the selection process, that right is not so sacrosanct or inviolable as not to be affected by a retrospective amendment to the rules. Such an amendment will operate and impair the right of consideration for appointment in a vacancy which alone inheres in an applicant. ...... 14........The effect of the decisions relied upon by the petitioners and dealt with by us earlier, despite the apparent width of the language in some of them, is only that the retrospective operation of any such rule shall not operate as to affect the constitutional rights of a person............" 32. As far as the right of a candidate included in the select list, after an amendment has been effected, the Division Bench held thus in paras.15 and 16:- "No right to be selected inhered in the petitioners by their making the application for selection as Amins to the Public Service Commission. The only right that vested in them was the right to be considered for selection in accordance with the rules as they existed on the date of the advertisement, of which again they could be deprived by a retrospective amendment. Even on inclusion in a select list, the only right that vests is that of consideration for appointment in any vacancy that may arise. No other right exists. In fact R.3(b) of the Kerala State and Subordinate Service Rules is specific that the inclusion of a candidate's name in any list of approved candidates for any service does not confer on him any claim for appointment to the service. Since the amendment was retrospective, and since no constitutional rights of the petitioners are affected, they cannot be heard to say that they should be appointed as Amins from out of the select list, ignoring the amendment. The petitioners' right is only to take their chance under the amended rule, for appointment, if no suitable attenders or last grade servants are available." Reliance was thus placed on Rule 3(b) of Part II K.S. & S.S.R also. 33. Therefore, there is no vested right as far as the petitioners are concerned. The date of occurrence of vacancy is also not a relevant criteria. 34. Herein, the effect of the Judgment in W.P.(C). No.19525/2006 as confirmed in W.A No.777/2011 will have to be gone into. In the Judgment in W.P.(C). No.19525/2006 (reported in Sajitha B. v. State of Kerala and others - ILR 2011 (4) Ker. 954), I had occasion to consider the effect of the very same amendment as regards a vacancy which arose on 01/06/2006. Mohanan's case [2006 (3) KLT 641] was relied upon to hold that as far as the said vacancy is concerned, Rule 15(a) Part II K.S & S.S.R as amended will have to be applied. The decision of the Division Bench in Mohammed's case [1993 (2) KLT 721] was also relied upon. In para.23 onwards, the decisions of this Court in W.P.(C).No.16557/2007 and W.A.No.843/2008 and W.P.(C).No.21028/2006 have been discussed. The same are extracted below: "23. I will now refer to some of such decisions of this Court. In the judgment in W.P.(C) No.16557/2007 the said question was considered and it was held thus in para 4: "It is true that the amendment to the Rule come into force after the list was published. I think the new Rules which say that if candidates are not available from a particular community, the candidates from other communities cannot be advised, will be applicable while making advices to various turns after the said rule came into force. In other words, the new Rules will apply to advice of candidates from the existing lists. Contentions to the contrary are untenable." 24. A Division Bench of this Court in the judgment in W.A. No.843/2008 held in para 2 as follows: "But now it is well settled that the law applicable at the time of filling up the vacancies has to be taken into account and not the law prevailing when the rank list was published. In view of this well settled position, the claim of the appellant to ignore the amendment introduced to Rule 15 of Part II, KS & SSR, cannot be allowed." The point was again considered by a learned Single Judge of this Court in the judgment in W.P.(C) No.21028/2006. Therein, in para 7, after relying upon the Division Bench judgments of this Court in W.A. Nos.2420/2007 and 843/2008, it was held thus: "It has been held that the law prevailing at the time of filling up of the vacancies has to be applied for advising candidates and not the law prevailing at the time when the ranked list was published. Therefore, though, in the instant case, the ranked list was published and had ceased to be in force before 2.2.2006, rule 15(a) of the Rules as amended will necessarily have to be applied while advising candidates against the 11 vacancies that remained unfilled as on the date of expiry of the ranked list." Therefore, going by the same, the amended rules will have to be given effect, for operating the ranked list in force. Therefore, the amendment to Rule 15(a) of Part II K.S & S.S.R could not have been ignored by the P.S.C. and hence law prevailing at the time of filling up of the vacancies has to be complied. In para.25, it was held that the amended rule 15(a) of Part II KS & SSR will apply. 35. The said issue was considered by the Division Bench in W.A.No.777/2011 elaborately. The Division Bench while affirming the said view, in para.12 laid down thus: "12. No doubt, there cannot be any dispute with regard to the settled position of law that the Rules of the game cannot be changed, once the game is started, as held in various decisions cited from the part of the appellant, as referred to before the learned Single Bench and before us, including that of the Apex Court in K. Manjusree Vs. State of Andhra Pradesh [(2008) 3 SCC 512] and that of a Division Bench of this Court in W.P(C) 2282 of 2009 and connected cases [ILR 2009 (4) Kerala. 543 (Asha P.Vs. State of Kerala). This is mainly with intend to arrange a common platform, where different persons are put to contest among themselves and that the change in qualification / norms for selection shall not affect the rights and interest of the parties concerned in proving their credentials to the extent it is required and notified. The scope and applicability of Ext. P5, amendment of Rules 14 and 15 of Part II KS & SSR, stands entirely on a different footing, which rather stipulates the turn in which allocation is to be made from the rank list, following the rules of reservation / rotation. As given in the 'explanatory note' of Ext.P5, the change was necessitated in view of the steps taken by the Government to give effect to Justice Narendran Commission Report, with a view to ensure adequate representation of backward class and also to avoid loss of representation of the communities, who have reservation in appointments made through Kerala Public Service Commission / Selection Authority. It was with this intent, that the concept of 'selection year' was changed to be effective for the period from the date on which the rank list comes into force, to the date on which it expires. The undue benefit, which otherwise was being enjoyed by the 'open' category candidates, has thus been done away with, stipulating that the vacancies had to be kept unfilled and notified separately, in the manner as specified therein. As per the 'Note' added under Rule 15 (a), all pending uncompensated turns of vacancies, such as 'Temporarily Passed Over', 'No Candidate Available' and 'Non-Joining Duty', as on 2nd February 2006 have been stipulated to be compensated, which by itself is a pointer, as to the object sought to be achieved. The provisions have to be read, not in isolation, but as a whole, when it becomes conspicuous that the amendment seeks to remedy the situation, which otherwise was defective so far, by providing appropriate measures with regard to the advice and placement given for the respective categories. As it stands so, the arguments advanced from the part of the appellant that the amendment relates to the reserved categories alone and is not intended to affect the 'open category turn' is not of much pith or substance." 36. The Circular issued by the Public Service Commission and its validity was considered in para.13 and therein also it was held thus: "13. With regard to the submission made referring to the lack of power or competence of the PSC to have issued Ext. P13 Circular, it is to be noted that nothing new has been stated by the PSC, nor has anything been added or varied or modified, contrary to Ext. P5 amended Rules. As mentioned herein before, the amendment virtually changes the concept of 'selection year', making the same to be for the period from the date of publication of the rank list, till the date of expiry. The stipulation that the amendment has come into force w.e.f. 02.02.2006, in the light of the other provisions contained therein, only suggests that the advice made prior to the said date need not be unsettled, however making it clear that the Temporarily Passed Over, No Candidate Available and Non Joining Duty vacancies, already resulted as on that date, have to be compensated. The PSC, as per Ext. P13 Circular, does not change the commencement of the selection year, but for mentioning that in the case of the rank lists finalized prior to 02.02.2006, the selection year shall be 'continued' from the stage at which the Ranked List stands as on date of last advice disregarding the previous selection year, if any. This Court finds it difficult to accept the proposition mooted by the appellant as to the challenge raised against Ext. P13 Circular or in respect of the virus of Ext. P5 amendment; which has not been effectively or successfully brought out." (emphasis supplied) 37. Therefore, the Division Bench was of the view that the concept of selection year as introduced now will show that it will be the period from the date on which the ranked list comes into force to the date on which it expires. If that be so, the amendment which is effective from 02/02/2006 when applied, then the N.C.A vacancy will have to be renotified. It was held that the Circular has not added or varied or modified anything contrary to the amended rules. The Circular only stipulated that the selection year shall be continued from the stage at which the ranked list stands as on the date of last advice. 38. The finding by the Division Bench that the advice made prior to the date of effect, namely, 02/02/2006 will not be disturbed, is significant in the context of these cases. 39. Shri N.Sugathan argued that the selection year as far as the ranked list is concerned herein, will have to be reckoned only from 02/02/2006. 40. It is clear from the unamended Rule 15 of Part II KS & SSR also that the yardstick for adopting the rules of reservation was with respect to an year. This was for the application of the limit of 50% rule for recruitment in a year. In the proviso to Rule 15 (c) (unamended) it was provided that "in no year reservations including carrying forward vacancies to a category of post shall exceed 50% of the total number of vacancies for which selection by direct recruitment to that category is resorted to in that year". Herein, we can see that going by the explanation, one selection year for the purpose of the rule shall be the period from the date on which the ranked list of candidates comes into force to the date on which it expires. Therefore, as far as the ranked lists herein are concerned, even though they were published prior to 02/02/2006, in the light of the introduction of the explanation, the selection year starts from the date of publication and the period of the ranked list normally expires only after three years. Therefore, the turns for the communities, will have to be necessarily be assessed in the light of the amended Rule 15(a) Part II K.S. & S.S.R also. If that be so, the temporarily passed over turns, cannot be given effect to after 02/02/2006. 41. The claim of the petitioners is that they have been advised prior to 08/03/2006, the date on which Ext.P5 was published. But, evidently, the amendment is effective from 02/02/2006. If that be so, the N.C.A vacancies will have to be renotified and there cannot be a temporary pass over turn. As already noticed, the date of occurrence of vacancy cannot be the criteria. The petitioners have no vested right for advice and appointment to any specified vacancy as laid down by the Full Bench in Mohanan's case [2006 (3) KLT 641] and other decisions I have already discussed. 42. The said position is further clear from the decision of the Constitution Bench in Shankarsan Dash v. Union of India [(1991) 3 SCC 47] wherein it was held as follows: "It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire any indefeasible right to be appointed and against existing vacancies. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. (para.7)." This was followed in Union Territory of Chandigarh v. Dilbagh Singh and others [(1993) 1 SCC 154]. Therein it was held as follows at para.12:- "....... a candidate who finds a place in the select list as a candidate selected for appointment to a civil post, does not acquire an indefeasible right to be appointed in such post in the absence of any specific rule entitling him for such appointment...." The said legal position was reiterated by the Apex Court in subsequent decisions also. I may also refer to a recent decision rendered in East Coast Railway and another v. Mahadev Appa Rao and others and connected cases [(2010) 7 SCC 678], para.13 wherein it was held after relying upon the decision of the Apex Court referred to above as follows: "It is evident from the above that while no candidate acquires an indefeasible right to a post merely because he has appeared in the examination or even found a place in the select list, yet the State does not enjoy unqualified prerogative to refuse an appointment in an arbitrary fashion or to disregard the merit of the candidates as reflected by the merit list prepared at the end of the selection process. ....." The same is the only qualification as far as the said principle is concerned. 43. The learned counsel for the petitioner Shri N.Sugathan submitted that the Judgment in W.A.No.843/2008 even though refers to the principle that law applicable at the time of filling up of vacancies will have to be taken into account and not that of the law prevailing at the time of publication of the ranked list, the decision of the Division Bench is not one correctly laying down the relevant legal principles. But, in the light of the decisions already discussed by me, relied upon by Shri P.Nandakumar and that of the Full Bench in Mohanan's case [2006 (3) KLT 641], it can be seen that a retrospective amendment can impair the rights of parties. The Apex Court in Deepak Agarwal and another v. State of Uttar Pradesh and others [(2011) 6 Supreme Court Cases 725], as already noticed, has held that a candidate has a right to be considered in the light of the existing rules, which implies "rule in force" on the date the consideration took place and there is no rule of universal or absolute application that vacancies are to be filled invariably by the law existing on the date when the vacancy arises. The above view also will show that the contention that the Judgment in W.A.No.843/2008 is not correctly decided, cannot be accepted. 44. The petitioners therefore, cannot rely upon the advice made after 02/02/2006, obviously, to temporarily passed over turns. Therefore, the show cause notices issued by the Commission is perfectly justified. 45. In the counter affidavit filed by the Commission in W.P.(C).No.2243/2007 and additional counter affidavit filed therein it is explained that when turn MRI 48 OX occurred, there was no OX candidate in the list and, therefore, in the said turn one Shri Mohanraj P.M was advised who was Rank No.1 from the Supplementary list for Dheevara and the turn MRI 50 D was also filled up by advising the next candidate, i.e. Smt.Sugandhi R.V, Rank No.2 in the same list on 17/02/2006. The rotation stood as follows: MRI 48 OX NCA D: Mohan Raj P.M, Rank No.1, (Supplementary List - Dheevara) MRI 50 D: Sugandhi R.V, Rank No.2 (Supplementary list). In the light of the amendment which is effective from 02/02/2006, the rotation worked out on 17/02/2006 was revised and the turn MRI 48 OX was notified for N.C.A selection and the candidate Shri Mohanraj P.M. (Rank No.1 was advised in MRI 50 D turn. The advice of the petitioner, Smt.Sugandhi R.V had therefore to be cancelled. It is also mentioned that the ranked list was expanded by an addendum notification dated 13/01/2009 and the name of the petitioner has been included as Rank No.110 in the main list. The original ranked list exhausted on 18/10/2006 but candidates were advised against all the vacancies reported within the validity period of the ranked list dated 09/11/2005. The date of last advice was 25/06/2009 and the rotation standing as on that date was MRII 5 OC also. It is also mentioned that another candidate belonging to Dheevara community has been included as Rank No.75 in the modified ranked list. Finally, it is stated that the turn of Dheevara community has not arisen and the Commission has published a new ranked list for the post with effect from 29/10/2010 and the candidates are being advised from the said list. 46. In W.P.(C).No.1125/2007, in the affidavit filed by P.S.C dated 21/12/2010 in para.3 it is stated that the ranked list for the post was enlarged as per Judgment in W.P.(C).No.21300/2005 dated 13/07/2006 and the petitioner's turn for re-advice has arisen but the advice has not been released in view of the interim order passed in the case. Therefore, the petitioner in W.P.(C).No.1125/2007 would be entitled for re-advice. 47. In the light of the legal position as explained already, the show cause notices issued by the Commission to cancel the advice memos are perfectly justified. The Commission is free to issue re-advices including that of the petitioner in W.P.(C). No.1125/2007 expeditiously. The writ petitions, W.P. (C) Nos.1125/2007 and 2243/2007 are dismissed, subject to the above observations and W.P.(C) No.11329/2011 is allowed and the Public Service Commission is directed to advise the eligible candidate in the N.C.A. vacancy expeditiously. No costs. (T.R. Ramachandran Nair, Judge.) ms |
