Mohanan E.V. v. State of Kerala and Others (O.P. No. 33181/2000)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR** **MONDAY, THE 31ST MARCH 2008 / 11TH CHAITHRA 1930** ## **OP.No. 33181 of 2000(A)** ## **---------------------------------PETITIONER:** - **-------------------** - **MOHANAN E.V., S/O. MANIKKAM, BENGALAM P.O., NILESWARAM (VIA), KASARAGOD DIST.** **BY ADV. SRI.KALEESWARAM RAJ** ## **RESPONDENTS:** - **-----------------------** **1. STATE OF KERALA, REP.BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF INDUSTRIES, SECRETARIAT, THIRUVANANTHAPURAM.** **2. THE DIRECTOR OF INDUSTRIES AND COMMERCE, THIRUVANANTHAPURAM.** **3. KERALA PUBLIC SERVICE COMMISSION, REP.BY THE SECRETARY, KERALA PUBLIC SERVICE COMMISSION, PATTOM, THIRUVANANTHAPURAM.** **ADDL.R4 TO R7 ARE IMPLEADED.** **4. K.V.SURESH, THIRUVONAM, VENCHOVODE, SREEKARIYAM, THIRUVANANTHAPURAM.** **5. K.CHANDRAN, OTTUVILAKOM, KURICHIRA VILA, MANAKAD P.O., THIRUVANANTHAPURAM.** **6. ABHILASH VIJAYAN, PRANAVOM, PANGAPARA P.O., THIRUVANANTHAPURAM.** ## **7. P.PREMJITH, MATHANAD, KALLAMBALAM, THIRUVANANTHAPURAM.** - **ADDL.R4 TO R7 ARE IMPLEADED AS PER ORDER DT. 13.12.2000 IN CMP. 58757/2000.** - **BY ADV. SRI.ALEXANDER THOMAS,SC,KPSC GOVERNMENT PLEADER SMT.N.SUDHA DEVI - R1, R2 SRI.O.V.RADHAKRISHNAN - R5 SRI.D.SOMASUNDARAM -R4 , R7** **THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 31/03/2008, ALONG WITH OP NO. 2199 OF 2001 AND CONNECTED CASES THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **OP. 33181/2000** ## **ORDER ON CMP. NO.17441/2001 IN OP. NO.33181/2000** ## **DISMISSED** **31.03.2008 SD/- T.R.RAMACHANDRAN NAIR, JUDGE** ## **APPENDIX** ## **PETITIONERS EXHIBITS** **EXT.P1:- COPY OF THE PSC RANKED LIST FOR THE POST OF JUNIOR CO-OPERATIVE INSPECTOR, INDUSTRIES AND COMMERCE WHICH CAME IN TO FORCE ON 8.8.2000.** _**/**_ **TRUE COPY/** **P.S. TO JUDGE** ## **tss** ## **T.R. Ramachandran Nair, J.** **- - - - - - - - - - - - - - - - - - - - - - - -** ## **O.P.NOs.33181/2000, 2199/01, 14608/01, 14881/01, 4307/037975/03 & 8212/03** **- - - - -- - - - - - - - - - - - - - - - - - - - -** ## **Dated this the 31st day of March, 2008.** ## **JUDGMENT** All these writ petitions concern recruitment to the post of Junior Cooperative Inspector in the Industries and Commerce Department. The Public Service Commission had invited applications as per the notification dated 19.4.1994. The petitioners are included in the rank list published by the Public Service Commission. Ext.P1 in O.P.No.2199/2001 is the rank list which came into force on 8.8.2000. Complaining that the existing vacancies are not being reported, the petitioners have filed these writ petitions. As per the interim order dated 14.7.2003 in I.A. No.8383/2003 in O.P.No.2199/2001, interim direction has been issued to report 70 vacancies and accordingly they have been reported also. It was made clear in the interim order that advice need be made only after getting further orders from this court. 2. The Government has filed detailed counter affidavits and statements in these writ petitions opposing the prayers. The substantial contention raised is that the Special Rules in respect of Kerala Industries OP 33181/2000 etc. -2- Subordinate Service has been notified as per G.O.(P) No.30/2001/ID dated 17.2.2001. These Special Rules are in supercession of all the existing rules and orders. The method of appointment to the post of Junior Co-operative Inspector is by transfer from U.D. Clerks and U.D. Typists in the department and in the absence of qualified hands, by direct recruitment. The rules have been deemed to have come into force with effect from 1.7.1983. Therefore, the appointment can be made only in accordance with the above Special Rules. In fact, the original petitions have been amended to challenge the Special Rules. Directions have been sought to complete the process of appointment in respect of the vacancies already reported as per the interim orders passed by this court. 3. In O.P.Nos. 14608/01, 14881/01 & O.P.No.8212/03, the petitioners are relying upon the judgment in O.P.Nos.8827/1989 and connected cases which concern the select list for appointment to the post of Junior Co-operative Inspector published on 12.5.1988. Relying upon the said judgment, it is contended that at that point of time there was a backlog of 44 vacancies and in the judgment there is a clear finding regarding the backlog of 44 vacancies for the period between 1.1.1976 to 31.12.1982 due to the direct recruits. 4. The question that arises therefore, is whether after the process of OP 33181/2000 etc. -3- section has been gone through, the introduction of the new Special Rules by changing the mode of appointment itself, is valid or not. Before the introduction of the Special Rules, the method of appointment to the post was governed by G.O.(MS) No.380/64/Ind. Dated 6.6.1964. Under it, direct recruitment and transfer will be made in the ratio of 50 : 50. The petitioners are also attacking the retrospective effect given to the Special Rules. It is contended by learned counsel appearing for the petitioners that the candidates had a vested right to get appointment in the vacancies which arose during the currency of the rank list and the action by the respondents by introducing the Special Rules is clearly arbitrary and discriminatory. It is also contended that at any rate, the retrospective effect given to the rules cannot be justified, especially in view of the fact that there were backlog of vacancies to be filled up from the direct recruitment quota. It is therefore contended that the rights of candidates to get appointment in those vacancies cannot be nullified by the legislative device. 5. As far as the validity of the rules are concerned, the said rules have been held valid by a Division Bench of this court in **Kunju Kunju v. State of Kerala** (2005 (1) KLT 364). The said case concerns the selection and appointment as Industrial Extension Officers. Therein also, as per a OP 33181/2000 etc. -4- notification, the Public Service Commission had invited applications from candidates. While considering the question as to whether the retrospective effect given to the rules is correct or not, it has been held that 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. Their Lordships held in para 11 thus: “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 OP 33181/2000 etc. -5- 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 1[st] 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.” In the light of the above dictum laid down by the Division Bench, the challenge against the validity of the rules and the retrospective effect given to the Special Rules, cannot be sustained. It cannot be said that the candidates had a vested right to get selected and appointed. The right, if any, is only to compete in accordance with the rules and orders in force. 6. The issue has been elaborately considered by a Full Bench of this court in **Mohanan v. Director of Homeopathy** (2006 (3) KLT 641 (FB)). Therein, the view taken by the Division Bench in Kunju Kunju's case (2005 (1) KLT 364) was accepted. Thereafter, their Lordships of the Full Bench examined the question 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. It was held as follows: “ When the position that the Government is empowered to amend recruitment rules even retrospectively is unquestionable, it cannot OP 33181/2000 etc. -6- 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. 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.” 7. In fact, this position had been reiterated in a catena of decisions, especially in **Sahadeva Valigan v. State of Kerala** (1988 (1) KLT 202). In the light of the above settled position, the contention of the petitioners that they had a vested right to get appointment and that the retrospective effect given to the amended provisions cannot be given effect to, falls to the ground. 8. I find that the reliance placed on the judgment in O.P.No.8827/1989 and connected cases to seek appointment in the reported vacancies herein is also not correct. It is true that in the above judgment, this court had considered the question regarding backlog of vacancies and ultimately two of the petitioners were directed to be appointed. It was made clear in the judgment that this court has not pronounced either way on the claim put forward by the petitioners for the backlog due to direct OP 33181/2000 etc. -7- recruitments from the year 1983 onwards. Even if these 44 vacancies were due to the direct recruits for the period from 1976 to 1982, now that the Special Rules have come into force and as the method of recruitment has already been altered, I find that the argument placing reliance on the said judgment, cannot be sustained. 9. Learned counsel for the petitioners made a further plea that as per the interim orders passed by this court, 70 vacancies have already been reported and already 13 persons have been appointed from the rank list and therefore once the rank list had been operated upon, the respondents shall be directed to continue the process of appointment from the said rank list. It was pointed out therefore that having appointed a few people from the rank list, others who are similarly placed cannot be denied the benefit of appointment. Going by the counter affidavit filed in O.P.No.14608/2001, only five vacancies were reported to the P.S.C. between 8.8.2000 and 17.2.2001 which is the date of G.O.(P) No.30/01/ID. 10. In the light of the fact that the special rules have come into force, wherein the mode of appointment itself had been changed, the mere fact that a few persons included in the rank list have been appointed by the Government earlier, will not confer any right on the other candidates who are included in the rank list. As found already, in the light of the decision of OP 33181/2000 etc. -8- the Division Bench in Kunju Kunju's case (2005 (1) KLT 364), as the attack against the Special Rules fails, then this court will not be justified in directing the respondents to operate the rank list to fill up the 70 vacancies. The vacancies can be filled up only as permitted by the Special Rules, as the same has replaced the executive order under which the selection process was initiated. The rules have been brought into force as empowered under the Public Services Act and the Special Rules will have supremacy over the executive orders which were in force till the promulgation of the rules. Ultimately, a notification bringing into force the Special Rules was issued superseding all executive orders and going by the principles adopted in the decision of the Division Bench referred to above, the petitioners cannot seek for a direction to compel the respondents to complete the process of appointment simply because of the fact that the rank list was published. For all these reasons, the original petitions fail and they are accordingly dismissed. ## **(T.R. Ramachandran Nair, Judge.)** ## **kav/** OP 33181/2000 etc. -9- T.R.Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - **O.P.NOs.33181/2000, 2199/01, 14608/01, 14881/01, 4307/037975/03 & 8212/03** - - - - - - - - - - - - - - - - - - - - - - ## JUDGMENT 31[st] March, 2008.