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, Thiruvanantha-puram 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 '$ 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's 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's 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-section (1) of Section 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 in 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 and Ors. v. Karnataka Public Service Commission , Their Lordships reiterated the
aforesaid 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
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. 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. Rs. 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. PI notification.
Here, it may also be noted that the Division Bench took into account G.O(Ms) 233/85/G AT 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 Kunju '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 and Ors. v. State of Kerala and Ors. reported in 1982 (2) 1LR 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 decid6d 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 filled 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 and Anr. . 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 Section 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 and Ors. v. State of Karnataka and Ors. , after referring to Caltons 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 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 and Ors. v. Karnataka Public Service Commission and Ors. , 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 selection, 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 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.
12. In B.N. Nagarajan v. State of Mysore , 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 i960. 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.
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.
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 .
12. Coming to very recent times, in State of Uttaranchal and Ors. v. Sidharth Srivastava and Ors. , 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 fects 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 and Ors. , 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 operative. As has been fairly conceded by learned Counsel for Respondent 1 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 and Gopal
Krishna Rath v. M.A.A. Baig .
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's 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 Kunju's case and Stalin'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 Murugan'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 Special Rules Ext. PI 5. Clause relevant for this purpose reads thus:
3. In the absence of suitable candidates for appointment or promotion under items I 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 1980.1 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.P 15 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, selectiorvor 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 Rule 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 Gunidev 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 and 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 and Anr. v. State of Rajasthan and 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. P1 5. 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 and Ors. v. J. Sreenivasa Rao and Ors. , 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 II 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 and Ors. v. State of Andhra Pradesh and Ors. 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 1/2 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 1/2 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 1/2 per cent 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 had 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 and 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 and Ors. v. Raghuveer Singh Yadav and Ors. , 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 expectation 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 in 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 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. 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 . 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. Kamataka Public Service Commission . 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, Rule 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 Articles 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 qualifications 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, notwithstanding 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 Rule 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. Rule 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 Rule 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 13.
The argument is that none of the decisions available on the subject related to recruitment rules based on a rule akin to Rule 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 Murugan'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 Rule 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 Rule 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 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. Rule 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 and Ors. v. State of Kerala and Ors. reported in 1982 (2) ILR 74 which goes to the effect that eyen 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 Articles 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.