2006 Ico 4476

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2006 ICO 4476
2006 (3) KLJ 380
26-07-2006
High Court of Kerala
O.P. No. 27117 of 2002
Acting Chief Justice Vinod Kumar Bali, Justice P R Raman, Justice S Siri Jagan
K R Mohanan & Anr ( Represented by, P Narayanan (Adv.) )
Vs.
Director Of Homeopathy & Ors ( Represented by, P C Sasidharan (Adv.) & A P Chandrasekharan (Sr. Adv.)
& Prabha R Menon (Adv.) & Kodoth Pushparajan (Adv.) & M Krishnakumar (Adv.) & Jayesh Mohan
Kumar K (Adv.) & M P Harikumar (Adv.) )
Equivalent Citations : ILR 2006 (3) Ker. 373 :: 2006 (3) KLJ 380 :: 2006 (3) KLT 641
Mentioned in Citations : 2018 ICO 316,2018 ICO 1032,2019 ICO 1278,2022 ICO 1098,2023 ICO
2003,2023 ICO 2041
Headnotes :-
A. Special Rules of the HomeopathySubordinate Service, 1999 (Kerala) – Public Service Commission
Rules ofProcedure, 1976 (Kerala) – Rule 14- The vacancies which arose subsequent to theamendment
of Special Rules cannot be filled up from the rank list prepared byPSC, pursuant to the selection
process initiated before the amendment ancompleted after the amendment. Held: Simply because a
person's name is included in theselect list he does not automatically get a vested right for admission.
Theonly right he gets is that of consideration for appointment in any vacancy thatmay arise, While
agreeing with the said proposition, we are of opinion thatthat principle would apply with equal force
to a select list actually in forceat the time when amendment occurs, meaning thereby that in such cases
also, thevacancies arising subsequent to such amendment can be filled up only inaccordance with the
amended recruitment rules notwithstanding the currency ofthe select list. An equally enforceable right
has to be recognised inthose persons who possess the new/amended qualification as per the
SpecialRules to get recruitments made in accordance with the new/amended rules, inwhich they also
can compete to the vacancies which have arisen subsequent tothe coming into force of the
new/amended rules. Apart from consistency inapplying law, failure to concede such right would
amount to violation of thefundamental rights of those who have the new/amended qualifications,
underArticles 14 and 16 of the Constitution of India. In other words, both therights should mutually
co-exist and in that view also our conclusion isperfectly in accord with the constitutional principles
which cannot be negatedto both sets of people. In fact, we feel that it is the onlyreasonable conclusion
possible, since, otherwise, the very purpose of amendmentwould be defeated. When the position that
the Government is empowered to amendrecruitment rules even retrospectively is unquestionable, it
cannot also be forgottenthat after the amended rules have come into force if appointments are
allowedto be made from the list prepared in accordance with the unamended rules,not-withstanding
the amendment, that would amount to postponing of the date ofcommencement of the amended rule
itself, which no authority other than theGovernment can do. Therefore, we have no doubt in our mind
that once anamendment regarding qualifications and Method of appointment etc., in respectof a
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particular post comes into force any vacancy which arises subsequent tothe commencement of the
amended rules can be filled up only in accordance withthe amended rules notwithstanding the
currency of any rank list published bythe PSC, selection of which was initiated prior to the
amendment of the rules. We do not think that either R.14 of the Kerala Public Service Commission
Rulesof Procedure or the stipulation in the notification can make any difference tothe law laid down
by us as above. If such a contention is accepted, we wouldhave to necessarily concede a power on the
PSC to postpone the coming intoforce of the amended rules promulgated by the Government. In so far
as the rulemaking authority is the Government, the power to fix the date of commencementof the
Rules also shall be exclusively with the Government unless the statute otherwiseprescribes. When the
retrospective effect or with effect from the date ofcommencement of the Rule (which would be the date
of commencement of thenotification unless the notification itself expressly or by necessaryimplication
stipulates otherwise), the operation of the Rules should commenceon that day only and not other date.
If the PSC is given the liberty to makeadvice from the list in force prepared in accordance with the
unamended rulesin respect of vacancies which arose subsequent to the commencement of theamended
rules, necessarily, that would amount to the PSC changing, the date ofcommencement of the amended
rules, which cannot be permitted by any stretch ofimagination. R.14 of the Kerala Public Service
Commission Rules of Procedurealso cannot change the date of commencement of the amended Rules
promulgated bythe Government. Therefore R.14 can only be subservient to the powers of
theGovernment to frame or amend Special Rules with or without retrospective affectand cannot be
relied upon to enable the PSC to make advise from current ranklist for appointment to vacancies
which arose subsequent to the framing oramendment of the Special Rules. We hold that
notwithstanding the currency ofthe rank list prepared and published by the PSC in accordance, with
therecruitment rules in force prior to the introduction of the Special Rules forthe Kerala Homeopathy
Subordinate Service, 1999 with effect from 12-4-1999, thevacancies which arose, subsequent to the
amendment of the Rules on 12-4-1999shall be filled up only in accordance with the Special Rules
promulgated witheffect from 12-4-1999. (Paras 20, 21, 22, 24 & 26)
ORDER
S. Siri Jagan, J.
1. This matter relates to appointment to the post of Pharmacist Grade II in the Department of Homeopathy
under the Government of Kerala. In 1995, the Kerala Public Service Commission (for short 'the PSC')
invited applications for selection to the post of Pharmacist Grade II in the Department of Homeopathy under
the Government of Kerala. Notification dated 2-9-1995 was published in the official gazette on 17-10-1995.
The last date for submission of applications; was 29-11-1995. A written test and interview were conducted
and the rank list dated 27-6-2003 was published. In the meanwhile, the Government issued the Special Rules
for the, Homeopathy Subordinate Service Rules, 1999, in supersession of all existing Rules and Orders on
the subject prescribing qualifications for the various posts in the Homeopathy Subordinate Service, including
those for the post, of Pharmacist Grade II by changing the previously existing minimum qualifications
prescribed for appointment to the said post with effect from 12-4-1999. A dispute arose as to whether after
the amendment to the Rules vacancies could be filled up from the list published by the PSC, which was
prepared based on the pre-revised qualifications. Some of the candidates included in the list filed
O.P.No.27117/2002, for a direction to the Director of Homeopathy, ThiruvananthaÂpuram and the District
Medical Officer, Kannur to report All vacancies of Pharmacist (Homeo) in Kannur District including the
vacancies occupied by unqualified provisional promotees to the PSC forthwith. There, was a prayer for a
direction to advice the petitioners and appoint them to the post of Pharmacist (Homeo) in the Homeopathy
Department of the Government. The said Original Petition came up for hearing before a learned Single
Judge of this Court, who, by order dated, 6-3-2006, referred it for decision by a Division Bench of this
Court, perceiving a conflict between two Division Bench decisions of this Court namely, Kunju Kunju v.
State of Kerala, reported in 2005 (1) KLT 364 and Stalin v. State of Kerala (2006 (1) KLT 493). In Kunju
Kunju's case, a Division Bench of this Court was considering the effect of amendment of Special Rules for
the Kerala Industries Subordinate Service with retrospective effect and held that selection to the post of
Industries Extension Officers has to be made, in accordance with the amended Special Rules and the PSC
was in error in' selecting the candidates and preparing the rank list in, terms of, the Special Rules prevailing
prior to the date of retrospective commencement of the amended Special Rules. In Stalin's case, another
Division Bench was considering the effect of the Kerala Homeopathy Subordinate Service Rules, 1999 on
the pending selection to the post of Pharmacist initiated prior to the coming into force of the Special Rules,
which is the question in issue in this case also. In that case; the Division Bench held that since the
amendments have only prospective operation, in so far as the selection which has already been set in motion
in accordance with the unamended rules is concerned, the same cannot be set at naught. The learned Single
Judge, who considered O.P.No.27117/2002, felt that these are conflicting decisions concerning the very same
legal issue and therefore referred the matter for decision by a Division Bench of this Court. A Division
Bench of this Court, before which the case came up for hearing on such reference, along with W.P.(C)
Nos.35734/2005, 5586 & 7270/2006, also felt that the impact of Kunju Kunju's case was not considered in
Stalin case, and therefore referred the cases for decision by a Larger Bench. It is under these circumstances
that these cases have come up for, hearing, before us. Some other cases dealing with the same issue have
also been tagged along with, these cases, although, they were not specifically referred to a Larger Bench.
2. Before considering the question involved, we would like to make it clear that we only intend to decide the
question of law which has been posed before us and do not intend to dispose of these cases finally as the
individual petitioners contend that apart from this legal question, other questions of facts are also involved,
which need to be decided separately in each case. We would leave those factual disputes to be resolved by
the appropriate Bench in accordance with the decision to be rendered by us on the question of law.
3. Let us first examine whether there is any conflict between Kunju Kunju case and Stalin's case. Kunju
Kunju's case related to selection, and appointment as Industries Extension Officers in the Industries
Department. The selection process for appointment as Industries Extension Officers was initiated at a time
when recruitment to the post of Industries Extension Officers was not governed by any statutory rules. The
State Government, by order dated 23-8-1962, in consultation with the Kerala Public Service Commission,
prescribed certain methods of appointment and qualifications for the said post. The PSC invited applications
for 33 posts of Industries Extension Officers by notification dated 26-5-1992 as per which the qualifications
for appointment were those prescribed in the Government Order dated 23-8-1962. Before the Commission
could complete the selection process i.e. even before the interviews were held, the State Government, in
exercise of its powers under sub-s.(1) of S.2 of the Kerala Public Services Act, 1968, framed rules for
recruitment to the Kerala Industries Subordinate Service. These Rules were named, "Special Rules for the
Kerala Industries Subordinate Service 2001 which were published in the Kerala Gazette dated 17-2-2001. It
was Specifically stated if the notification itself that those Rules were deemed to have come into force with
effect from 1-7-1983. The Division Bench considered the effect of the Special Rules introduced with
retrospective effect on the selection process which was in progress at the time of promulgation of the Special
Rules. The Division Bench, after consideration of the question, held in paragraph 11 as follows:
“11. Again, in N.T. Devin Katti & Ors. v. Karnataka Public Service Commission ((1990) 3 SCC
157), Their Lordships reiterated the afore-said proposition of law and Justice K.N. Singh (as His
Lordship then was) speaking for the Bench observed, as under:
"Lest there be any confusion, we would like to make it clear that a candidate on making
application for a post pursuant to an advertisement does not acquire any vested right of
selection, but if he is eligible and is otherwise qualified in accordance with the relevant rules
and the terms contained in the advertisement, he does acquire a vested right of being
considered for selection in accordance with the rules as they existed on the date of

advertisement. He cannot be deprived of that limited right on the amendment of rules, during
the pendency of selection unless the amended rules are retrospective in nature."
(underlining is ours)
Referring to the earlier decisions, Justice K.N. Singh observed in paragraph 13 of the Judgment as under:
"It is well accepted principle of construction that a statutory rule or Government Order is prospective in
nature unless it is expressly or by necessary implication made to have retrospective effect. Where
proceedings are initiated for selection by issuing advertisement, the selection should normally be regulated
by the then existing rules and Government Orders and any amendment of the rules or the Government Order
pending the selection should not affect the validity of the selection made by the Selecting Authority or the
Public Service Commission unless the amended Rules or the amended-Government Orders issued in
exercise of its statutory power either by express provision or by necessary intendment indicate that amended
Rules shall be applicable to the pending selections. See P. Mahendran v. State of Karnataka ((1990) 1 SCC
411)
(emphasis supplied)
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
advertisement. This limited right 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. The authority which issued the advertisement or
which framed the recruitment rules has a right to amend the terms and conditions of
appointment to the post and also to amend the recruitment rules but no such amendment shall
affect the selection process which had already commenced prior to the amendment unless the
amendment is made retrospectively. In other words, if an amendment is brought about in the
recruitment rules with retrospective effect, then the selection to the post shall be governed by
the amended rules and no candidate can be heard to say that he has a right to be considered for
appointment in terms of the Rules as they stood at the, time of the commencement of the
selection process. In the case before us, the Special Rules were promulgated in February, 2001
when the selection process had not been completed and it is common case of the parties that
these Rules were made operative retrospectively with effect from 1st July, 1983 superseding
all the Government Orders governing the field including the G.O. It, therefore, follows that the
selection to the posts of Industries Extension Officers had to be made in accordance with the
Special Rules and that the commission was in error in selecting the candidates and preparing
the rank lists in terms of the G.O."
4. In Stalin's case, the PSC, by notification dated 27-10-1998, invited applications for appointment to the
post of Pharmacist (Homeopathy) in the Department of Homeopathy in accordance with the qualifications
prescribed in G.O(Ms) 161/84/HG dated 21-6-1984, which was in force at the time of inviting applications,
and published District-wise rank list on various dates between April, 2002 and January, 2003. While so, on
12-4-1999, Government of Kerala framed Special Rules for the Kerala Homeopathy Subordinate Service,
vide SRO No.397/1999 in which the qualifications prescribed for the post were changed. The Division
Bench, which considered Stalin's case, examined the effect of the Special Rules which came into force on
12-4-1999 on the rank list published pursuant to the notification inviting applications prior to the coming
into force of the Special Rules based on the qualifications as per Government order dated 21-6-1984. The
Division Bench, after considering the question, held as follows in paragraph 14:

"In view of the decisions of the Apex Court cited supra there cannot be any doubt as regards
the answer to the question whether the Special Rules framed by the Government with effect
from April 12, 1999 would have any impact on the rights accrued to the petitioners as on the
date of the notification issued by the Commission. Since the Special Rules do not contain any
clause indicating retrospectivity of the qualifications prescribed in those Special Rules, it will
have only prospective operation. Rr. 10 and 13 of the General Rules have to be understood
subject to the law laid down as above. Therefore, the Commission has to necessarily make
appointments in terms of the qualifications prescribed in Ext.P1 notification."
Here, it may also be noted that the Division Bench took into account G.O(Ms) 233/85/GAT dated 27-6-1985,
in which the Government had clarified that the changes in qualifications, method of appointment, age or
other conditions of recruitment introduced after the issue of a notification for selection to the post by the
PSC will be given effect to in future selections only.
5. From a reading of these decisions, we do not perceive any conflict between these two decisions.
According to us, these two decisions operate in two different fields. In Kunju Kunjuâ€™s case, the issue
related to the effect of retrospective amendment of the Special Rules on the pending selection process and it
was because the amendment was retrospective that in Kunju Kunju's case, the Division Bench held that the
selection to the post of Industries Extension Officers had to be made in accordance with the amended Special
Rules and the Commission could not have selected candidates and prepared the rank list in terms of the
earlier Government Order in force prior to the issue of the Special Rules with retrospective effect. In Stalin's
case, the Division Bench specifically found that the introduction of the Special Rules was not with
retrospective effect and therefore the same cannot affect the selection process initiated and completed in
accordance with the recruitment rules in force prior to the introduction of the Special Rules. That being so,
there is absolutely no conflict between these two decisions. In fact, the law laid down by both these
decisions was the same, namely, that in the absence of any indication regarding retrospectivity to the
operation of the Special Rules, the appointments pursuant to selection made in accordance with the Rules in
force prior to the introduction of the Special Rules cannot be affected by the Special Rules.
6. But, in both these cases, there is no categoric finding as to whether the vacancies which arose subsequent
to the introduction of the Special Rules could be filled up from the list prepared pursuant to the selection
process in accordance with the qualifications prevailing prior to the introduction of the Special Rules. In
fact, except the decision of a learned Single Judge of this Court in C. Murugan & Ors. v. State of Kerala &
Others. reported in 1982 (2) ILR 74, none of the decisions of this Court or that of the Supreme Court of India
cited before us categorically and specifically dealt with that question, although in some of those decisions,
there may be some indications as to how the issue could be tackled. Since we are in agreement with both
Kunju Kunju's case and Stalin's case which themselves have been decided based on Supreme Court
decisions on the subject, we need not further elaborate on that and we would confine ourselves to the further
question now posed before us, which Was not specifically decided in those cases.
7. We would formulate the question of law posed before us as follows:
"Whether the vacancies which arose subsequent to the amendment of the Special Rules for the
Kerala Homeopathy Subordinate Services on 12-4-1999 can be filled up from the rank list
prepared by the Kerala Public Service Commission pursuant to the selection process initiated
before the amendment and completed after the amendment."
8. The contention of the petitioners, who had the benefit of inclusion in the rank list prepared on the basis of
qualifications existing prior to the coming into force the Special Rules now in force, is that in respect of the
vacancies which arise during the currency of the rank list prepared by the PSC in terms of the notification
issued prior to the coming into force of the Special Rules, shall be filled up from that rank list itself. On the
other hand, the parties opposing the said view submitted that after coming into force of the Special Rules, no

vacancy, which arose subsequent to the coming into force of the Special Rules, can validly be filled up by
persons who do not have the qualifications prescribed under the Rules and therefore vacancies which arose
subsequent to the introduction of the Special Rules of 1999 can be filed only on the basis of a fresh selection
based on the new qualifications prescribed by the Special Rules.
9. We shall first recapitulate the various decisions on the subject. The first is the decision of A.A. Calton v.
The Director of Education & Another, reported in AIR 1983 SC 1143. In that case, what was in question was
the appointment of Principal of a college. The proceedings for selection of a qualified person to the post in
question commenced in the year 1973, After several rounds of litigation, the 2nd respondent in that case was
appointed to the post. The question which arose for consideration was- as to whether the appointment made
against the relevant provisions, as they stood on the date of the appointment was valid in view of the
amendment to S.16-F of, the U.P. Intermediate Education Act, which was introduced in the year 1975, i.e.
subsequent to the commencement of the proceedings for selection to the post. The Supreme Court, in that
case, in paragraph 5, held as follows:
“....... But it is equally well settled that no retrospective effect should be given to any statutory
provision so as to impair or take away an existing right, unless the statute either expressly or
by necessary implication directs that it should have such retrospective effect. In the instant
case admittedly the proceedings for the selection had commenced in the year 1973 and after
the Deputy Director had disapproved the recommendations made by the Selection Committee
twice the Director acquired the jurisdiction to make an appointment from amongst the
qualified candidates who had applied for the-vacancy in question. At the instance of the
appellant himself in the earlier Writ Petition filed by him the High Court had directed the
Director to exercise that power. Although the Director in the present case exercised that power
subsequent to, August 18, 1975 on which date the amendment came into force, it cannot be
said that the selection made by him was illegal since the amending law had no retrospective
effect. It did not have any effect on the proceedings which had commenced prior to August 18,
1975. Such proceedings had to be continued in accordance with the law as it stood at the
commencement of the said proceedings. We do not, therefore, find any substance in the
contention of the learned counsel for the appellant that the law as amended by the U.P. Act 26
of 1975 should have been followed in the present case."
10. In P. Mahendran & others v. State of Karnataka & Ors. (1990) 1 SCC 411, after referring to Calton's case
(supra), and some other cases, the Supreme Court, in paragraphs 4 and 5, held as follows:
"4. There is no dispute that under the Recruitment Rules as well as under the advertisement
dated October 6, 1983 issued by the Public Service Commission, holders of Diploma in
Mechanical Engineering were eligible for appointment to the post of Motor Vehicle Inspectors
along with holders of Diploma in Automobile Engineering. On receipt of the applications from
the, candidates the Commission commenced the process of selection as it scrutinised the
applications and issued letters for interview to the respective candidates. In fact the
Commission commenced the interviews on August 1984 and it had almost completed the
process of selection but the selection could not be completed on account of interim orders
issued by the High Court at the instance of candidates seeking reservation for local candidates.
The Commission completed the interviews of all the candidates and it finalised the list of
selected candidates by June 2, 1987 and the result was published in the State Gazette on July
23, 1987. In addition to that the selected candidates were intimated by the Commission by
separate, letters. In view of these facts the sole question for consideration is as to whether the
amendment made in the Rules on May 14, 1987 rendered the selection illegal. Admittedly the
amending Rules do not contain any provision enforcing the amended Rules with retrospective
effect. In the absence of any express provision contained in the amending Rules it must be held
to be prospective in nature. The Rules which are prospective in nature cannot take away or

impair the right of candidates holding Diploma in Mechanical Engineering as on the date of
making appointment as well as on the date of scrutiny by the Commission they were qualified
for selection and appointment. In fact the entire selection in the normal course would have
been finalised much before the amendment of Rules, but for the interim orders of the High
Court. If there had been no interim orders, the selected candidates would have been appointed
much before the amendment of Rules. Since the process of selection had commenced and it
could not be completed on account of the interim orders of the High Court, the appellants'
right to selection and appointment could not be defeated by subsequent amendment of Rules.
5. It is well settled rule of construction that every statute or statutory rule is prospective unless
it is expressly or by necessary implication made to have retrospective effect. Unless there are
words in the statute or in the Rules showing the, intention to affect existing rights the rule must
be held to be prospective. If a rule is expressed in language which is fairly capable of either
interpretation it ought to be construed as prospective only. In the absence of any express
provision or necessary intendment the rule cannot be given retrospective effect except in
matter of procedure. The amending Rules of 1987 do not contain any express provision giving
the amendment retrospective effect nor there is anything therein showing the necessary
intendment for I enforcing the rule with retrospective effect. Since the amending rules were
not retrospective, it could not adversely affect the right of those candidates who were qualified
for selection and appointment on the date they applied for the post, moreover as the process of
selection had already commenced when the amending Rules came into force, the amended
Rules could not affect the existing rights of those candidates who were being considered for
selection as they possessed the requisite qualifications prescribed by the Rules before its
amendment moreover construction of amending Rules should be made in a reasonable manner
to avoid unnecessary hardship to those who have no control over the subject matter."
11. Again, in N.T. Devin Katti & Ors. v. Karnataka Public Service Commission & Ors. ((1990) 3 SCC 1517),
in paragraphs 11 to 13, the Supreme Court held as under:
“There is yet another aspect of the question. Where advertisement is issued inviting
applications for direct recruitment to a category of posts, and the advertisement expressly
states that selection shall be made in accordance with the existing rules or government orders,
and if it further indicates the extent of reservations in favour of various categories, the
selection of such candidates in such, a case must be made in accordance with the then existing
rules and government orders. Candidates who apply, and undergo written or viva voce test
acquire vested right for being considered for selection in accordance with the terms and
conditions contained in the advertisement, unless the advertisement itself indicates a contrary
intention. Generally, a candidate has right to be considered in accordance with the terms and
conditions set out in the advertisement as his right crystallises on the date of publication of
advertisement, however he has no absolute right in the matter. If the recruitment Rules are
amended retrospectively during the pendency of section, in that event, selection must be held
in accordance with the amended Rules. Whether the Rules have retrospective effect or not,
primarily depends upon the language of the Rules and its construction to ascertain the
legislative intent. The legislative intent is ascertained either by express provision or by
necessary implication; if the amended Rules are not retrospective in nature the selection must
be regulated in accordance with the rules and orders which were in force on the date of
advertisement. Determination of this question largely depends on the facts of each case having
regard to the terms and conditions set out in the advertisement and the relevant rules and
orders. Lest there be any confusion, we would like to make it clear that a candidate on making
application for a post pursuant to an advertisement does not acquire any vested right of-
selection, but if he is eligible and is otherwise qualified in accordance with the relevant rules
and the terms contained in the advertisement, he does acquire a vested right of being
advertisement. He cannot be deprived of that limited right on the amendment of rules during
the pendency of selection unless the amended rules are retrospective in nature.
12. In B.N. Nagarajan v. State of Mysore (AIR 1966 SC 1942), the dispute related to the validity of
appointment of Assistant Engineers. The Public Service Commission invited applications by issuing
notifications for appointment to the post of Assistant Engineers in October 1958, May 1959 and April 1960.
The Commission made selection, interviewed the candidates and sent the select list to the Government in
October/November 1960. But before the appointments could be made the Mysore Public Works Engineering
Department Services (Recruitment) Rules, 1960 came into force which, prescribed different provisions than
those prescribed in the earlier notification in pursuance whereof the Public Service Commission had made
the selections. The validity of the appointment made by the Government on the basis of the selection made
by the Commission was challenged. The High Court quashed the selection and appointments made in
pursuance thereof. On appeal before this Court, validity of the appointments were assailed on the ground that
since the appointments had been made after the amendment of the Rules the appointments should have been
made in accordance with the amended Rules. A Constitution Bench of this Court rejected the contention
holding that since the whole procedure of issuing advertisement, holding interviews and recommending the
names having been followed in accordance with the then existing Rules prior to the enforcement of the
amended Rules the appointments made on the basis of the recommendation made by the Public Service
Commission could not be rendered invalid.
13. In Y.V. Rangaiah v. J. Sreenivasa Rao ((1983) 3 SCC 284), similar question arose relating to recruitment
by promotion. The question was whether promotion should be made in accordance with the Rules in force on
the date the vacancies occurred or in accordance with the amended Rules. The Court observed as under:
(SCC p. 289, para 9)
"The vacancies which occurred prior to the amended rules would be governed by the old rules
and not by the amended rules. It is admitted by counsel for both the parties that henceforth
promotion to the post of Sub-Registrar Grade II will be according to the new rules on the zonal
basis and not on the Statewide basis and, therefore, there was no question of challenging the
new rules. But the question is of filling the vacancies that occurred prior to the amended rules.
We have not the slightest doubt that the posts which fell vacant prior to the amended rules
would be governed by the old rules and not by the new rules."
The same view was taken in A. Ganeshwar Rao v. State of Andhra Pradesh (1988 Supp SCC
740). Similar view was taken in A.A. Calton v. Director of Education ((1983) 3 SCC 33). It is a
well accepted principle of construction that a statutory rule or Government order is prospective
in nature unless it is expressly or by necessary implication made to have retrospective effect.
Where proceedings are initiated for selection by issuing advertisement, the selection should
normally be regulated by the then existing rules and Government orders and any amendment of
the rules or the Government order pending the selection should not affect the validity of the
selection made by the selecting authority or the Public Service Commission unless the amended
Rules or the amended Government orders, issued in exercise of its statutory power either by
express provision or by necessary intendment indicate that amended Rules shall be applicable to
the pending selections. See P. Mahendran v. State of Karnataka, ((1990) 1 SCC 411)."
12. Coming to very recent times, in State of Uttaranchal & others v. Sidharth Srivastava & Ors. ((2003) 9
SCC 336), the Supreme Court held that Rules in force at the time of initiation of selection process- have to
be applied. We do not intend to go into this decision in depth, since the facts involved in that decision related
to appointment from the list prepared by the U.P. Public Service Commission to posts in the State of
Uttaranchal, after coming into force of the new State which cannot be of much relevance to the fact situation
presented before us.

13. In Secretary, A.P Public Service Commission v. B. Swapna & Others., reported in ((2005) 4 SCC 154), a
recruitment process was started and candidates were selected for filling up vacancies which were initially
advertised, finalised and persons were placed in the waiting list/rank list, which was to operate for one year
under the Rules. The PSC, as per the Rules then applicable, had the option to select candidates from the rank
list in case of new requisition sent by appointing authority, but it had also power thereunder to freeze the
rank list for reasons recorded if, during the period of operation of the wait list, new requisition was made.
The PSC directed freezing of the rank list and ordered fresh advertisement. In that case, while holding that
the vacancies in respect of which the selection has been made were to be filled up from the rank list
prepared, despite the amendment to the rules made in the meanwhile, the Court further held that non-
consideration of the respondent, who was in the waiting list for vacancy subsequently reported, was justified.
In paragraphs 14 and 18 of the judgment, the Supreme Court held thus:
“14. The High Court has committed an error in holding that the amended rule was operated. As
has been fairly conceded by learned counsel for Respondent I applicant it was the unamended
rule which was applicable. Once a process of selection starts, the prescribed selection criteria
cannot be changed. The logic behind the same is based on fair play. A person who did not
apply because a certain criterion e.g. minimum percentage of marks can make a legitimate
grievance, in, case the same is lowered, that he could have applied because he possessed the
said percentage. Rules regarding qualification for appointment if amended during continuance
of the process of selection do not affect the same. That is because every statute or statutory
rule is prospective unless it is expressly or by necessary implication made to have
retrospective effect. Unless there are words in the statute or in the rules showing the intention
to affect existing rights the rule must be held to be prospective. If the rule is expressed in a
language which is fairly capable of either interpretation it ought to be considered as
prospective only. [See P. Mahendran v. State of Karnataka ((1990) 1 SCC 411) and Gopal
Krishna Rath v. M.A.A. Baig ((1999) 1 SCC 544)).
xxx xxx xxx
The Commission has been given right to freeze any ranking list. The selection from the
ranking list from amongst the posts advertised was limited to the cases where the selected
candidates had relinquished the selection or who had not joined the duties within the given
time and also new requisitions sent by the appointing authority. The Commission did not think
it appropriate to make appointment from the new requisition. The fact that the Commission
had directed that fresh advertisements were to be made is clearly indicative of the fact that the
Commission did not want, the new requisitions to be filled up by appointing from the ranking
list in force. The Tribunal and the High Court were therefore not justified in holding by
referring to the amended rule that the fallout, vacancies were to be filled up from the ranking
list. The fallout vacancies in terms of the amended notification were to be notified in the next
recruitment. Case of the applicant all through has been that her claim was relatable to the 14
vacancies indented on 14-4-1997 and in particular the open category. It is not her case that the
Commission had directed fresh advertisement though it had not frozen the rank list. It is not
disputed that there cannot be direction for fresh advertisement unless the rank list is frozen.
The materials placed on record clearly show that before directing fresh advertisement, the
Commission had in fact for reasons recorded directed freezing. Unfortunately, the Tribunal did
not grant adequate time to the Commission to produce relevant records and the High Court
proceeded on erroneous premises that the amended Rules applied. Therefore, looked at from
any angle, the High Court's judgment affirming the Tribunal judgment cannot be maintained.
The same is set aside. The appeal is allowed with no order as to costs."
14. A perusal of the above decisions would show that the Supreme Court never laid down any law which
would render either of the decisions of the two Division Benches in Kunju Kunjuâ€™s case and Stalinâ€™s

case bad in law. Going by the ratio of the above said decisions, those two decisions operate in specified
fields of operation in tune with the same law which the Supreme Court has propounded in the decisions cited
supra. However, those decisions do, not assist us in the matter of deciding as to whether the vacancies, which
arose subsequent to the amendment of the Rules prescribing new qualifications, can be filled up from the list
prepared, based on the qualifications prior to the coming into operation of the amended Rules. None of the
above said decisions deal with that subject to any extent. In this respect, we may refer to some decisions
which would certainly be of some assistance to us in the matter of resolving this issue.
15. We will start with the decision of a learned Single Judge of this Court, which, in fact, we do not approve
of. The said decision is Muruganâ€™s case (supra). In that case, originally, the Special Rules for the Bureau
of Economics and Statistics providing for appointment to the post of Assistant Directors prescribed a ratio of
1:1 between direct recruits and promotees. The rules were amended on 2-9-1980, providing for appointment
of direct recruits only in the absence of qualified candidates fit for promotion. The question arose as to
whether, if process of direct recruitment was complete before the amendment of the Rules, direct recruits
could be appointed from the list already prepared to the vacancies which arose even subsequent to the
amendment to the Rule on 2-9-1980. In the said decision, the learned Single Judge held as follows in
paragraph 17:
"17. That takes me to the question whether the same right is available to the petitioners to be
appointed to vacancies after 2nd September 1930 on account of the embargo contained in the
amendment to the Social Rules Ext. P15. Clause relevant for this purpose reads thus:
"3. In the absence of suitable candidates for appointment or Promotion under items 1 and 2
above, by direct recruitment."
The petitioners' learned counsel Sri Chandrasekharan in O.P.No.2480 of 1980 made a forceful plea that no
direct recruitment was possible to vacancies that arose after 2nd September 1980 and whatever steps may
have been taken before 2nd September 1980 for direct recruitment, appointment being synonymous with
direct recruitment, any person advised before 2nd September 1980 cannot find a berth in a vacancy that
arose after 2nd September 1980. I shall consider this question with reference to the relevant provisions of the
rules and authorities cited before me. The amended Special Rules prevent direct recruitment when suitable
candidates are available for promotion. As I understand him, the submission made by Sri Chandrasekharan is
that whatever steps may have taken place before the coming into force of the amendment Ext.P15
appointment by special recruitment for a vacancy arising after 2nd September 1980 is barred totally. I find it
difficult to agree with this submission. Direct recruitment is a process originally emanating in the
ascertainment of the number of vacancies available or anticipated requesting the Commission to notify the
vacancies, the Commission issuing a notification pursuant thereto, application by candidates desiring to
apply, the consideration of the applications, written examination if necessary, as well as interview if
necessary, preparations of the ranked list, preparation of select list in accordance with the rules, a further
requisition by the Government reporting vacancies, and advice culminating in appointment. Therefore,
appointment to the post is the last stage in a slow gradual process. The learned Advocate General rightly
contended that the submission that direct recruitment and appointment were synonymous ignored the various
stages mentioned above and if accepted would result in unhappy consequences. The word 'recruitment' or
recruited' has a connotation entirely different from the word 'appointment". It is not necessary to seek the
assistance of a dictionary for this purpose. Recruitment signifies enlistment, acceptance, selection or
approval for appointment, all stages preceding appointment. The two words cannot be said to mean the same
thing. Therefore the submission made by Sri K. Chandrasekharan cannot be accepted. For this conclusion, I
seek, support from the definition of the word 'appointed to a service' and 'recruited direct' obtaining in R.
2(1) and 2(12) of the General Rules which read as follows:
"2. Definition: - In these rules unless there is anything repugnant in the subject or context -

(1) A person is said to be 'appointed to a service' when in accordance with these rules or in
accordance with the rules applicable at the time as the case may be, he discharges for the first
time the duties of a post borne on the cadre of such service or commences the probation,
instruction or training prescribed for members thereof.
Explanation: - The appointment of a person holding a post borne on the cadre of one service
to hold additional charge of a post borne on the cadre of another service or to discharge the
current duties thereof does not amount to appointment to the latter service.
(12) A candidate is said to be 'recruited direct to a service, class, category or post when, in case
the appointment has to be done in consultation with the Commission on the date of the
notification by the Commission inviting applications for the recruitment, and in any other case,
at the time of appointment.
(i) he is not in the service of the Government of India or the Government of a State; or
(ii) being in the service of the Government of India or the Government of a State, he satisfies
all the qualifications (including age) and other conditions prescribed for such recruitment to
that service, class, category or post and is permitted to apply for such recruitment by the
competent authority; or
(iii) he holds a post, the conditions of sendee of the holder of which have been declared to be
matters not suitable for regulation by rule."
Under the above definitions appointment takes effect when the person appointed for the first time discharges
his duty. This is in contradistinction to the concept of the word 'direct recruitment'. One is the finale of the
process that starts from the other, In Gurudev Singh Gill v. The State of Punjab, 1968 (2) SLR 538, a
Division Bench of the High Court of Punjab and Haryana has, with respect, noted the distinction between the
concept of the words recruitment and appointment correctly. In paragraph 12 the matter is discussed as
follows:
“........ but the two concepts of recruitment and appointment are separate and apart and the
clear line of distinction between them has been made manifest by the various rules, one of
which is rule 9 of the Cadre Rules which provides for temporary appointment of non-cadre
officers to cadre posts. It is the linchpin of the respondent's case that the petitioners in the first
instance were appointed under this rule which is concerned essentially with temporary and
stop gap appointment."
In Basant Lal Malhotra v. State of Punjab & Ors., AIR 1969 Punjab 178 also this view is approved. I quote
para 1- which contains the relevant discussion:
"After giving my thoughtful consideration to all relevant provisions of the subject, I am led to
an irresistible conclusion that the terms 'recruitment' and 'appointment' are not synonymous
and connote different meanings. The term 'recruitment' connotes and clearly signifies
enlistment, acceptance, selection or approval for appointment and not actual appointment or
posting in service while 'appointment' means an actual act of posting a person to a particular
office. In this view of the matter, the word 'recruited' existing in rule 4.2 of the Punjab Civil
Services Rules, Volume II, does not mean actual appointment and the petitioner should be
deemed to have been recruited on the 26th of March, 1936".
In Man Mohan Kaushiba & Another. v. State of Rajasthan & Ors., AIR 1971 Rajasthan 60, the above view
has been approved. With respect, I hold that the view expressed above in the three judgments reflect the
correct approach to be made for the words 'appointment' and 'direct recruitment'. The object of the Special

Rules is made clear by the explanatory note in Ext.P15. I read the explanatory note to make my approach
clear:
"In the Special Rules for the Kerala Statistics and Economics Service, there is provision for
direct recruitment to the categories of Assistant Director, Deputy Director, Joint Director and
Additional Director. It is also provided therein that vacancies in the cadre of Assistant Director
shall be filled up alternately by promotion and by direct recruitment commencing with
promotion. After mature consideration Government decided to amend the relevant provisions
in the Special Rules so that direct recruitment to the categories or Assistant Director, Deputy
Director, Joint Director and Additional Director need be resorted to only in the absence of
suitable hands for promotion in the Bureau of Economics and Statistics. These amendments
are intended to achieve the above object."
What I wish to emphasise is the direction contained in the note that direct recruitment to the
categories mentioned therein need be resorted to only in the absence of suitable hands. This
clearly postulates the initiation of recruitment process and not the appointment culminating in
the said process; in other words, if all the necessary processes had been completed the
amended Special Rules do not prevent the appointment of a candidate in the select list even to
a vacancy that arises alter the Special Rules."
16. In the decision of Y.V. Rangaiah & Ors. v. J. Sreenivasa Rao & Ors., reported in AIR 1983 SC 852,
which decision was, in fact, followed in some of the Supreme -Court cases cited supra, the Supreme Court,
in paragraph 9, held as follows:
"9, Having heard the counsel for the parties, we find no force in either of the two contentions.
Under the old rules a panel had to be prepared every year in September. Accordingly, a panel
should have been prepared in the year 1976 and transfer or promotion to the post of Sub-
Registrar Grade R should have been made out of that panel. In that event the petitioners in the
two representation petitions who ranked higher than the respondents Nos.3 to 15 would not
have been deprived of their right of being considered for promotion. The vacancies which
occurred prior to the amended rules would be governed by the old rules and not by the
amended rules. It is admitted by counsel for both the parties that henceforth promotion to the
post of Sub Registrar Grade II will be according to the new rules on the zonal basis and not on
the Statewide basis and, therefore, there was no question of challenging the new rules. But the
question is of filling the vacancies that occurred prior to the amended rules. We have not the
slightest doubt that the posts which fell vacant prior to the amended rules would be governed
by the old rules and not by the new rules."
Of course, this decision only says that vacancies which occurred prior to the amended rules would be
governed by the old Rules and not by the amended Rules. It does not specifically refer to what principle is to
be adopted in the matter of filling up of the vacancies which arose subsequent to the amendment of the
Rules. However, as a converse proposition, it can certainly be held that vacancies which occurred subsequent
to the amended Rules would be governed by the amended Rules and not by the unamended Rules.
17. In the decision of P. Ganeshwar Rao & others v. State of Andhra Pradesh & Others., reported in 1988
(Supp) SCC 740, the Supreme Court held thus in paragraph 7:
"7. It is clear from the Special Rules as they were in force prior to the amendment on April 28,
1980 that it was open to the State Government to fill 37 Â½ per cent of the vacancies (both
substantive and temporary) in the cadre of Assistant Engineers by direct recruitment. It is also
not in dispute that during the years 1978 and 1979 the position of the vacancies was such that
it was, permissible for the State Government to appoint 51 Assistant Engineers by direct
recruitment. The only question which has now to be considered is whether the amendment
made on April 28, 1980 to the Special Rules applied only to the vacancies that arose after the
date on which the amendment came-into force or whether it applied to the vacancies which
had arisen before the said date also. The crucial words in the Explanation which was
introduced by way of amendment in the Special Rules on April 28, 1980 were 37 Â½ per cent
of the substantive vacancies arising in the category of Assistant Engineers shall be filled by the
direct recruitment".
If the above clause had read 37 Â½ percent of the substantive, vacancies in the category of Assistant
Engineers shall be filled by the direct recruitment perhaps there would not have been much room for
discussion. The said clause then would have applied even to the vacancies which had arisen prior to the date
of the amendment but which bad not been filled up before that date. We feel that there is much force in, the
submission made on behalf of the appellants and the State Government that the introduction of the word
'arising' in the above clause made it applicable only to those vacancies which came into existence subsequent
to the date of amendment."
Of course, in this case, the Supreme Court gave emphasis to the word "arising" in the amended notification
itself, to come to the above said conclusion. Notwithstanding the same, this decision points to the principle
that although, in respect of Vacancies arising prior to the date of amendment the amended rules cannot be
applied in respect of vacancies which arose subsequent to the date of amendment the amended rules are to be
applied.
18. In Union of India & Anr v. Yogendra Singh (1994) Supp. (2) SCC 226), the Supreme Court was
considering the effect of amendment of educational qualifications for appointment to vacancies which arose
prior to the amendment, where applications for recruitment were invited subsequent to such amendment. The
Supreme Court held that a candidate not possessing the currently prescribed qualifications, although possess
the pre-amended qualifications, is not entitled to appointment even against any unfilled vacancy that had
arisen prior to the amendment. The relevant portion of the judgment is paragraph 5, which reads thus:
“5. At the time the applications were invited for the posts in question the educational
qualifications, already prescribed on 24-5-1990, were B.Sc. (Chemistry) plus Diploma of
Health inspector from a recognised institute. The employment notice set out these to be the
educational qualifications. The respondent did not possess these educational qualifications. No
candidate who does not possess the currently prescribed qualifications, but who may possess
the educational qualifications, prescribed earlier, can be said to qualify or have any vested
right to appointment even against some earlier unfilled vacancy. Every candidate who aspires
to fill any vacancy must possess the educational qualifications that are then prescribed."
Of course, in this case, there was no initiation of the process of selection prior to the amendment of the
Rules. However, the Supreme Court held that in respect of these vacancies which arose prior to the
amendment of the Rules, when applications are invited subsequent to the amendment of the Rules, even in
respect of vacancies which arose prior to the amendment of the Rules, the qualifications prescribed by the
amended Rules have to be applied. This certainly is a decision which would support the contention that once
the rules are amended, vacancies which arose subsequent to such amendment should be governed by the
qualifications prescribed by the amended recruitment rules.
19. In State of M.P. & Ors. v. Raghuveer Singh Yadav & Others., reported in (1994) 6 SCC 151, the Supreme
Court was dealing with a case where fresh selection was ordered after amendment of the qualifications for
eligibility, withdrawing the earlier notification, inviting applications from eligible candidates, Issued prior to
the amendment changing the qualifications. In paragraph 5, the Supreme Court held as follows:
"5. It is not in dispute that Statutory Rules have been made introducing Degree in Science or
Engineering or Diploma in Technology as qualifications for recruitment to the posts of
Inspector of Weights and Measures. It is settled law that the State has got power to prescribe
qualifications, for recruitment. Here is a case that pursuant to amended Rules, the Government
has withdrawn the earlier notification and wants to proceed with the recruitment afresh. It is
not a case of any accrued right. The candidates who had appeared for the examination and
passed the written examination had only legitimate exception to be considered of their claims
according to the rules then in vogue. The amended Rules have only prospective operation. The
Government is entitled to conduct selection in accordance with the changed rules and make
final recruitment obviously, no candidate acquired any, vested right against the State.
Therefore, the State is entitled to withdraw the notification by which it had previously notified
recruitment and to issue fresh notification in that regard on the basis of the amended Rules."
Of course, this is an extreme view, which would even go to the effect that on amendment of the
qualifications, the Government is even empowered to withdraw the selection process already started prior to
the amendment. But, in very many other decisions, some of which we have quoted above, such an extreme
view was not taken, although, in this decision, the Supreme Court has distinguished the ratio of the decision
in Mahendran's case (supra). All those decisions upheld the right of the applicants who have, applied
pursuant to such notification to be considered for selection in accordance with such notification. Still, we are
of opinion that this decision would go a long way to support the view, that it respect of vacancies which
arose subsequent to the amendment, those vacancies can be filled up only on the basis of the amended
qualifications. While at it, we will also refer to two Division Bench decisions of this Court. First is that of
Velayudhan v Secretary to Government reported in 1985 KLT 793. In that case, after the PSC notified
vacancies, a Government Order was issued subsequently providing for appointment to the post by
promotion. The question that was considered by the Division Bench was whether the rule on the date of
occurrence of the vacancy or at the time of appointment should apply. In paragraph 8, the Division Bench
held as follows:
"8. 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 become 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
application. 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. In Government service, filling up of a
vacancy by direct recruitment in the normal course is through the Public Service Commission.
The Government will notify the vacancy to, the Public Service Commission and the Public
Service Commission will invite application, conduct the tests, interview the candidates, make
the selection and advise the required number of candidates. The Government or the Appellate
Authority, if the Appointing Authority is different, will issue appointment orders to the
candidates advised by the Public Service Commission. In this case the vacancy was notified to
the Public Service Commission on 17-1-1977 and the Public Service Commission made the
recruitment. The Public Service Commission advised the appointment of the 2nd respondent as
per their letter dated 4-7-1978. Before that, by GO(MS) No. 91/78/DD dated 14-6-1978 a
revised method of appointment was fixed. As per this G.O., the appellant-electrician could be
promoted and appointed as Foreman. This is a right which the appellant had not at the time
when the vacancy arose and when it was notified to the Public Service Commission. The
Public Service Commission is a constitutional functionary which is invested with the
responsibility of making recruitment to the State Government service. Once the machinery for
recruitment has been set in motion by notifying the vacancy to the Public Service
Commission, it cannot be brought to a grinding halt by amending the special rules and making
the recruitment a futile exercise. So, the Government Order dated 14-6-1978 which makes the
appellant-electrician entitled for promotion as Foreman cannot stand in, the way of the
recruitment made by the Public Service Commission. The vacancy in question has to be filled
by appointing the 2nd respondent who was advised by the Public Service Commission in spite
of the fact that the Government Order dated 14-6-1978 provided for appointment by
promotion of electricians as Foreman."
This decision is in favour of the proposition that vacancies which arose subsequent to the amendment of the
Rules shall be filled up only in accordance with amended rules.
20. In Mohammed Najim v. State of Kerala (1993 (2) KLT 721), the Division Bench hearing the case
decided as follows in paragraphs 15 and 16:
“15. No right to be selected inhered in the petitioners by their making the application for
selection as Amins to the Public Service Commission. (Vide I.J. Divakar v. Government of
Andhra Pradesh (AIR 1982 SC 1555). 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
(Devinkatty v. Karnataka Public Service Commission ((1990) 3 SCC 157). 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 sendee does not confer on him any claim for appointment to the service.
16. We are not therefore satisfied that the petitioners had any right which could not be divested
by any retrospective amendment. We do not find any violation of Arts. 14 or 16 of the
Constitution, though the, amendment to the rule is challenged on this ground in some of the
Writ Petitions. In fact no arguments were seriously addressed on this point, Sri. Sugunapalan,
for the petitioners in O.P.No.9879 of 1989, who did the arguments in the main, concentrating
his attack on the aspects of impairment of the alleged rights vesting consequent on the issue of
the notification by the Public Service Commission and the obligation to continue the selection
under the unamended rules. Nor was there any challenge that the date February 24, 1981 fixed
for the commencement of retrospectivity was irrational or without any basis. 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. The reliefs
claimed in the Writ Petitions are not liable to be granted."
This decision would go to show that simply because a person's name is included in the select list he does not
automatically get a vested right for admission. 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 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.
21. It is worth noting that these decisions recognise a right in those persons who have applied pursuant to the
selection process initiated prior to the date of coming into force of the Special Rules, for being considered
for selection in accordance with the rules in force at that time. By the same coin, an equally enforceable right
has to be recognised in those persons who possess the new/amended qualification as per the Special Rules to
get recruitments made in accordance with the new/amended rules, in which they also can compete to the
vacancies which have arisen subsequent to the coming into force of the new/amended rules. Apart from

consistency in applying law, failure to concede such right would amount to violation of the fundamental
rights of those who have the new/amended qualifications, under Articles 14 and 16 of the Constitution of
India. In other words, both the rights should mutually co-exist and in that view also our conclusion is
perfectly in accord with the constitutional principles which cannot be negated to both sets of people.
22. In fact, we feel that it is the only reasonable conclusion possible, since, otherwise, the very purpose of
amendment would be defeated. When the position that the Government is empowered to amend recruitment
rules even retrospectively is unquestionable, it cannot also be forgotten that after the amended rules have
come into force if appointments are allowed to be made from the list prepared in accordance with the
unamended rules, not-withstanding the amendment, that would amount to postponing of the date of
commencement of the amended rule itself, which no authority other than the Government can do. 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 PSC, selection of which was initiated prior to
the amendment of the rules.
23. A contention was also raised before us based on R.14 of the Kerala Public Service Commission Rules of
Procedure. Although, these Rules have not been promulgated in exercise of any rule making power conferred
by any statute, by judicial precedents, it has been accepted that these rules have statutory force. R.14 reads
thus:
"14. The Commission shall advise candidates for all the vacancies reported and pending before
them and the vacancies which may be reported to them for the period during which the ranked
lists are kept alive in the order of priority, if any, and in the order of merit subject to the rules
of reservation and rotation, wherever they are applicable:
Provided that the advice of candidates by the Commission from the ranked lists kept alive
under the fifth proviso to R.13, shall be confined to the vacancies that actually arose during the
normal period of validity of the ranked lists under rule 13 and certified to be as such by the
appointing authorities reporting vacancies to the Public Service Commission.
Note:- The prolongation under the fifth proviso to rule 13 shall not be deemed to be part of the
normal period of validity of the ranked list under rule B."
The argument is that none of the decisions available on the subject related to recruitment rules based on a
rule akin to R.14. In so far as Rule 14 specifically states that vacancies which may be reported to the PSC
during the period of currency of the rank list shall also be filled up, from the persons included in the rank
list. In fact, in Muruganâ€™s case (supra), the learned Single Judge had relied upon this Rule also to come
to the conclusion he reached. Counsel also specifically invited our attention to Ext.P6 gazette notification
issued for the recruitment, which is the subject matter of O.P.No.27117/2002, namely, for the post of
Pharmacist (Homeo.). In that notification, apparently, based on R. 14 of the Kerala Public Service
Commission Rules of Procedure, it has been specifically laid down that for the vacancies mentioned in the
notification and the vacancies which may be reported during the currency of the list, appointments would be
made from the list.
24. We do not think that either R.14 of the Kerala Public Service Commission Rules of Procedure or the
stipulation in the notification can make any difference to the law laid down by us as above. If such a
contention is accepted, we would have to necessarily concede a power on the PSC to postpone the coming
into force of the amended rules promulgated by the Government. In so far as the rule making authority is the
Government, the power to fix the date of commencement of the Rules also shall be exclusively with the
Government unless the statute I otherwise prescribes. When the Government issues notification amending
the Rules either with retrospective effect or with effect from the date of commencement of the Rule (which
would be the date of commencement of the notification unless the notification itself expressly or by
necessary implication stipulates otherwise), the operation of the Rules should commence on that day only
and not other date. If the PSC is given the liberty to make advice from the list in force prepared in
accordance with the unamended rules in respect of vacancies which arose subsequent to the commencement
of the amended rules, necessarily, that would amount to the PSC changing, the date of commencement of the
amended rules, which cannot be permitted by any stretch of imagination. R.14 of the Kerala Public Service
Commission Rules of Procedure also cannot change the date of commencement of the amended Rules
promulgated by the Government. Therefore R.14 can only be subservient to the powers of the Government
to frame or amend Special Rules with or without retrospective affect and cannot be relied upon to enable the
PSC to make advise from current rank list for appointment to vacancies which arose subsequent to the
framing or amendment of the Special Rules. Therefore, we do not find any merit in this contention also.
Consequently, we have to overrule the decision in C. Murugan & Ors. v. State of Kerala & Ors., reported in
1982 (2) ILR 74 which goes to the effect that even after the amendment of the recruitment rules, advice can
be made from the current list even in respect of vacancies- which arose subsequent to the amendment of the
rules. We do so.
25. Another contention was also raised before us to the effect that if persons included in the rank list do
possess the qualification prescribed under the new Rules promulgated with effect from 12-4-1999, they
should be given appointment from the very same list. We do not agree. That would lead to anomalous
results. Further, that would also violate Arts. 14 and 16 of the Constitution of India since persons who
became qualified subsequent to the initiation of the recruitment rules would be denied the opportunity to
compete for the post in accordance with the newly introduced Special Rules.
26. In the result, we hold that notwithstanding the currency of the rank list prepared and published by the
PSC in accordance, with the recruitment rules in force prior to the introduction of the Special Rules for the
Kerala Homeopathy Subordinate Service, 1999 with effect from 12-4-1999, the vacancies which arose,
subsequent to the amendment of the Rules on 12-4-1999 shall be filled up only in accordance with the
Special Rules promulgated with effect from 12-4-1999.
All these cases and the other cases posted along with these cases are directed to be posted before the
appropriate Bench for hearing and disposal in accordance with the law laid down as above.
--- End ---

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Rajeev & Sayujya 2006 ICO 4476 Page 1 of 17

2006 ICO 4476

2006 (3) KLJ 380

O.P. No. 27117 of 2002

K R Mohanan & Anr ( Represented by, P Narayanan (Adv.) )

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7. We would formulate the question of law posed before us as follows:

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xxx xxx xxx

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Generated on 2024-02-12 © 2024 Kerala Law Journal indiancases.com

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