P. Balasubramanian and Alex Justin M.A. v. The High Court of Kerala and others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V THURSDAY, THE 5[ TH ] DAY OF JANUARY 2023 / 15TH POUSHA, 1944`** ## **`WP(C) NO. 33690 OF 2019`** ## **`PETITIONERS:`** ``` 1 P.BALASUBRAMANIAN AGED 50 YEARS S/O. PECHIYAPPAN, II/I/21, N.G.O. QUARTERS, THRIKKAKARA, KAKKANAD P.O. ERNAKULAM-682 021, (WORKING AS LIFT OPERATOR, HIGH COURT OF KERALA, ERNKULAM). 2 ALEX JUSTIN M.A., MALIYEKKAL HOUSE, EDAVANAKKAD P.O., NORTH PARAVOOR, ERNAKULAM DISTRICT (WORKING AS ATTENDER, HIGH COURT OF KERALA, ERNAKULAM), BY ADVS. R.T.PRADEEP M.BINDUDAS K.C.HARISH ``` ## **`RESPONDENTS:`** ``` 1 THE HIGH COURT OF KERALA REPRESENTED BY REGISTRAR GENERAL, HIGH COURT OF KERALA, ERNAKULAM-682 031. 2 JASMINE, LIBRARY ASSISTANT, HIGH COURT OF KERALA, ERNAKULAM-682 031. 3 RESHMA.K.V., LIBRARY ASSISTANT, HIGH COURT OF KERALA, ERNAKULAM-682 031. 4 ADDL R4 BENNY KURIAKOSE K LIBRARY ASSISTANT, HIGH COURT OF KERALA ``` **W.P. (C) No.33690 of 2019** ## **: 2 :** ``` ERNAKULAM,PIN-682031 ``` ``` ADDL R4 IS IMPLEADED VIDE ORDER DATED 05/02/2020 IN IA 1/2020 IN WPC 33690/2019. ``` ``` 5 ``` ``` ADDL R5 . ``` ``` RAHUL RAVEENDRAN OFFICE ATTENDANT,HIGH COURT OF KERALA ERNAKULAM,PIN-682 031 RESIDING AT RAVI NIVAS,POTHY,MIDAYIKUNNU P.O., THALAYOLAPARAMBU,KOTTAYAM-686 605 ``` ``` IS IMPLEADED AS ADDITIONAL R5 VIDE ORDER DATED 07/07/2020 IN IA 4/2020 IN WPC 33690/2019 ``` ``` 6 ``` ``` ADDL. R6 ``` ``` AKHIL.C, AGED 28 YEARS, S/O. UNNI.C, RESIDING AT NADUKKANDI HOUSE, KOLLIPARAMBA.P.O., CHELAMBRA, MALAPPURAM DISTRICT. ``` ``` IMPLEADED IN THE PARTY ARRAY AS PER THE ORDER DATED 25/10/22 IN IA NO.1/2021 IN WP(C) NO.33690/2019. ``` ``` 7 ADDL. R7 ``` ``` SREEJU.V, AGED 33 YEARS, S/O. VENUGOPALAN NAIR, RESIDING AT V.S.NIVAS, KOTTAIKKAL, KOTTAIKKAL.P.O., THIRUVANANTHAPURAM-698124. ``` ``` IMPLEADED IN THE PARTY ARRAY AS PER THE ORDER DATED 25/10/22 IN IA NO.1/2021 IN WP(C) NO.33690/2019. ``` ## **W.P. (C) No.33690 of 2019** **: 3 :** ``` 8 ADDL. R8 ``` ``` JINU RAJ M, AGED 29 YEARS, S/O. RAJAN.M., RESIDING AT MOOPPIL HOUSE, KONDOTTY, KARIPUR, MALAPPURAM DISTRICT. IMPLEADED IN THE PARTY ARRAY AS PER THE ORDER DATED 25/10/22 IN IA NO.1/2022 IN WP(C) NO.33690/2019. ``` ``` BY ADVS. SRI.SANTHOSH MATHEW SMT.LAKSHMI RAMADAS SRI.MILLU DANDAPANI APARNA RAJAN SRI.SREEDHAR RAVINDRAN DHANUJA M.S SHRI.B.G.HARINDRANATH ``` ``` SRI BG HARINDRANATH, SC ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **W.P. (C) No.33690 of 2019** **: 4 :** ## **“CR”** ## **J U D G M E N T** The 1st petitioner is serving as a Lift Operator, and the 2nd petitioner is serving as an Attender in the High Court of Kerala. They come within the category of Employees in Division II of Part II of the Kerala High Court Service Rules, 2007 (‘Rules, 2007’ for the sake of brevity). They have approached this Court, being aggrieved by Ext.P1 notification as per which Sub Rule (6) of Rule 20 of Rules, 2007 stood amended, and the post of Library Assistant was excluded from the operation of Rule 20(6). By excluding Library Assistants from the operation of Rule 20(6), they contend that the conditions of service of employees like them who entered service prior to the coming into force of the 2007 Rules stood altered, and their right to promotion got curtailed. 2. To understand the grievances of the petitioners, it would be apposite to detail the bare minimum facts: a) Article 229 of the Constitution of India speaks about the conditions of service of officers and servants of a High Court. Article 229(2) reads as follows: **W.P. (C) No.33690 of 2019** **: 5 :** “Subject to the provisions of any law made by the Legislature of the State, the conditions of service of officers and servants of a High Court shall be such as may be prescribed by rules made by the Chief Justice of the Court or by some other Judge or officer of the Court authorised by the Chief Justice to make rules for the purpose: Provided that the rules made under this clause shall, so far as they relate to salaries, allowances, leave or pensions, require the approval of the Governor of the State.” b) In exercise of powers conferred under Article 229 of the Constitution of India, the Chief Justice, with the approval of the Governor of Kerala, so far as the Rules relate to the salaries, allowances, leave, and pension, framed the Kerala High Court Service Rules, 1970 (‘1970 Rules’ for the sake of brevity). The rules were published in Kerala Gazette No.3 dated 19.01.1971, and the same came into force with effect from the said date. - c) The post of Library Assistant comes under Division II Category No.16A. The method of appointment is promotion, transfer, or direct recruitment. The qualification prescribed is SSLC. d) The 1970 Rules were repealed, and the Rules, 2007 was published in the Kerala Gazette on 13.02.2007. The Rules came into force on 01.01.2007. The post of Library Assistant is categorized as No.4 in Sub-Division (6) of **: 6 :** ## **W.P. (C) No.33690 of 2019** Division II of the Rules, 2007. The relevant portion of the Rules, 2007, is extracted below for easy reference. ||Annexure-I<br>Sub<br>Division<br>Category<br>Name of Post<br>Methods of Appointment<br>Qualification<br>6<br>4<br>Library Assistant<br>Appointment by transfer<br>or direct recruitment<br>1.<br>University degree<br>2.<br>A degree or diploma in<br>Library Science| |---|---| e) Rule 20 of the Rules, 2007 deals with promotion and appointment by transfer. It reads as follows: “20. Promotion and appointment by transfer. (1) (a) The following categories shall be treated as selection categories for promotion which shall be made on ground of merit and ability, seniority being considered only where merit and ability are approximately equal: xxxxxx xxxxxx xxxxxx (6) Notwithstanding anything contained in these Rules, for promotion to higher categories, the qualifications prescribed for appointments to various posts as per these Rules will be inapplicable to incumbents in Service in the lower or feeder categories as on the date of coming into force of these Rules. Qualifications prescribed in the repealed Rules shall govern them for promotion.” - f) By the operation of Rule 40 of the Rules, 2007, High Court Service Rules, 1970 stood repealed. However, it was mentioned that subject to what is **W.P. (C) No.33690 of 2019** **: 7 :** stated in the newly enacted Rules, appointment/promotion/exemption orders passed under the repealed Rules shall not in any way be affected by the repeal. g) Though higher qualifications were prescribed for Library Assistant as per the 2007 Rules, so far as incumbents in service in the lower or feeder categories as on the date of coming into force of the Rules are concerned, the qualification prescribed in the repealed Rules were to govern. - h) The petitioners assert that the solitary post available in the non-technical cadre that employees falling under Division II and who had passed SSLC could aspire to is the post of Library Assistant. In view of Rule 20(6), they were entitled to a by-transfer appointment based on their inter se seniority. - i) While so, Exhibit P1 notification dated 17.10.2019 was issued by which Rule 20(6) of the Rules, 2007 was amended, and the post of Library Assistant alone was excluded from the operation of the Rule. They contend that by the said amendment, the vested right of the employees who were **W.P. (C) No.33690 of 2019** ## **: 8 :** in service as on 01.01.2007 to aspire for the post of Library Assistant, was taken away. j) The petitioners contend that the amendment to the Rules is one pertaining to conditions of service, the vested right of the employees could not have been interfered with. They assert that the amendment carried out to the Rules, 2007 is unreasonable, arbitrary, and harsh. k) The respondents issued Exhibit P2 notification on 23.10.2019 to fill up two posts of Library Assistant. The petitioners assert that the above two posts ought to have inured to the benefit of the qualification fixed as per the repealed Rules. Being aggrieved, they submitted Exhibit P3 representation before Chief Justice. However, the request was rejected by Exhibit P4 official memorandum. Thereafter, the 1st respondent proceeded to appoint respondents 2 and 3 in the vacancies notified as per Exhibit P2, which according to the petitioners, is to their detriment. 3. It is on these assertions that this writ petition is filed seeking the following reliefs: **W.P. (C) No.33690 of 2019** ## **: 9 :** - i) To issue a writ of certiorari or any other appropriate writ order or direction calling upon the records pertaining to exhibits P 1, P 2, and P 5 and quash the same. - ii) To issue a writ of mandamus or any other appropriate writ, order or direction to the first respondent to fill up the vacancies notified by Exhibit P2 and all other future vacancies arising in the post of library assistant shall be filled up in terms of rule 20 (6) dehors exhibit P 1 within such time fixed by this court 4. A counter affidavit has been filed by the 1st respondent. The following assertions have been made therein to controvert the contentions raised in the writ petition: - a) As per the Rules, 1970, the post of Library Assistant falls under Category 16A of Division II, and the qualification prescribed for the post was SSLC. However, the Chief Justice was conferred with the authority to dispense with the qualification in case any person is found fit or suitable for the post. - b) The need for having qualified personnel as Library Assistants was felt, and this matter was one of the subject matters for the consideration of the **W.P. (C) No.33690 of 2019** ## **: 10 :** Committee for framing High Court Rules and High Court Service Rules. In its meeting held on 03.12.2018, the relevant portion of which was recorded in Exhibit R1(a) minutes, the committee emphasized that the nature of the job of Library Assistant demands the qualification prescribed in the Rules, 2007, and the non-insistence of such qualification would affect the quality, efficiency, and betterment of the institution. - c) The Committee issued directions to the Registry to initiate steps to repeal Rule 20(6) of the Rules, 2007, with prospective effect. As the procedure for amendment of the Rules is to be carried out in terms of Rule 39, directions were issued to publish the draft amendment and invite objections and representations from the members of the service. - d) In terms of the directions, the draft amendment was published, and representations/objections were called for. The objections so received were placed before the Rules Committee in its meeting held on 18.02.2019. The Rules Committee directed the Registry to prepare details regarding the posts for which higher qualifications have been prescribed by the Rules and also the function attached to the posts so as to enable the Committee **W.P. (C) No.33690 of 2019** **: 11 :** to identify the posts in respect of which qualification as per the 1970 Rules can be continued without compromising on the quality of the work. Exhibit R1(c) minutes of the Rule Committee is placed on record to substantiate the above fact. The Committee, after detailed deliberations, formed the opinion that the relaxation under Rule 20(6) cannot be extended to the post of Library Assistant. The Committee took the view that the work of Library Staff, including Library Assistants, demands a thorough knowledge of the Library System so that conventional methods and technological advancements in the field of information could be applied. The Committee took the view that higher qualifications for the post of Library Assistant were prescribed to ensure the full, effective, and speedy utilization of Library resources by all the stakeholders. The Committee also opined that bringing Library Assistants within the ambit of Rule 20(6) would defeat the functional requirement attached to the post as there could be no compromise on the quality just for the purpose of protecting the promotional prospects of the employees, as the interest of the institution was paramount. After deliberations, the Committee resolved to reject all the objections raised against the draft notification as relates to the post of **W.P. (C) No.33690 of 2019** **: 12 :** Library Assistant so as to have a retrospective effect from 01.08.2018, and directions were issued to the registry to publish the amendment. This fact would be evident from Exhibit R1(d) minutes of the meeting. - e) The Chief Justice, after considering the report of the Committee, its implications, and the heartburn and grievances of persons such as the petitioners, took the view that the amendments suggested by the Rule Committee shall take effect from 01.01.2019. - f) It is stated that as per the Rules, 2007, the method of appointment to the post of Library Assistant is “Appointment by Transfer or Direct Recruitment.” However, the feeder category from which appointment by transfer is to be made has not been made mentioned in Annexure-1 to the Rules, 2007. As the post of Library Assistant falls in Division II, the priority of appointment has to be in accordance with Rule 20(7)(1) of the Rules, 2007. The exemption to the qualification is applicable only for promotions to higher categories and is not applicable to the incumbents who had entered High Court service even before 01.01.2007 and holding the post in Division II categories having an identical scale of pay as that of the **W.P. (C) No.33690 of 2019** ## **: 13 :** category of the post to which appointment by transfer is to be made by virtue of Rule 2(1) of the Rules. It is stated that if direct recruitment is resorted to after the coming into force of the Rules, 2007, the candidate is expected to have the qualifications mentioned in the amended Rules, and therefore the insistence of qualification for promotion/appointment by transfer cannot be termed as arbitrary. It is stated that employees in service are also bound by valid amendments as there is no vested right for promotion. - g) It is stated that the Chief Librarian, in terms of the Kerala High Court Office Manual, 2015, and the High Court Official Memorandum dated 16.04.2015, is expected to make use of the service of the Library Assistant in various manners to ensure that the work in the library is efficient and smooth. - h) It is further stated that when vacancies arose for the post of Library Assistant before and after 01.01.2019, official memorandums were issued. In response, various objections were raised, which were all considered by the Chief Justice, and the same was rejected. **W.P. (C) No.33690 of 2019** ## **: 14 :** - i) It is stated that in the matter of appointments of officers and servants of a High Court, the Chief Justice or the Officer he may direct is the Supreme authority, and the same cannot be interfered with. j) It is stated that the High Court is presently using the e-Granthalaya Software, which is meant to transform traditional libraries into digital library services. For the above purpose, automation has to be carried out in respect of in-house activities of libraries, digital library integration, and providing online member services using a single window access system. The entire activity carried out in the library is by using the software. Unless the Library Assistant has a thorough knowledge of the software, it would be difficult to run the library efficiently. Mobile applications and online libraries are also provided to the Judges/Sections of the High Court. As stated in the explanatory note, which forms part of the amendment notification, the work of the library staff, including Library Assistants, demands a thorough knowledge of the Library System. The qualification is insisted upon to ensure full, effective, and speedy utilization of the Library resources by the Court, Judges, and other stakeholders. The Library has **W.P. (C) No.33690 of 2019** ## **: 15 :** started the digitization process of the books and journals, and it was taking note of the above that the Chief Justice has decided that only qualified personnel be appointed in the High Court, and it was not necessary to consider unqualified personnel. In accordance with the decision so taken, vacancies that had arisen before 01.01.2019 were filled up with persons having qualifications as per the repealed Rules, 1970, whereas the vacancies that arose after 01.01.2019 were filled up with candidates having qualifications as prescribed by Rules, 2007. It is also stated that the same qualification of University Degree and Degree/Diploma in Library Science is prescribed in Kerala High Court Service Rules, 2008 and Repealed Rules, 1970, for the post of Category (1) Sub Division (6), the post in Division II, which is the regular promotion post of Selection Grade Library Assistant. 5. A counter affidavit has been filed by the 3rd respondent. After detailing the sequence of events, it is stated that the 3rd respondent had submitted Ext.R3(d) representation in 2018 requesting that the post of Library Assistant may not be filled up purely on a seniority basis and that the selection to the post should be in accordance with the educational qualification prescribed by **W.P. (C) No.33690 of 2019** ## **: 16 :** the High Court Service Rules, 2007. It is stated that the High Court Library is using e-Granthalaya software developed by the NIC, which transforms the traditional libraries into e-libraries and enables the users to have online member service using a single window access system. Unless the Library Assistant has the skill and qualifications, the individual would not be in a position to provide any valuable assistance. When sufficient candidates with University Degrees and Diplomas in Library Science are available for by-transfer promotion, there is no need to compromise on quality and efficiency. 6. In the counter affidavit filed by the 2nd respondent, it is stated that qualifications have been prescribed for meeting administrative requirements and for the efficient functioning of the High Court, and the petitioners would not be in the field of consideration for the post. 7. I have heard the submissions of Sri R.T. Pradeep, the learned counsel appearing for the petitioners, Sri B.G. Hareendranath, the learned standing counsel appearing for the 1st respondent, Sri Millu Dandapani, the learned counsel appearing for the 3rd respondent, Sri. Sreedhar Raveendran, the learned counsel appearing for the 2nd respondent and additional 5th respondent, **W.P. (C) No.33690 of 2019** ## **: 17 :** and Smt. Dhanya S., the learned counsel appearing for the additional respondents 6 to 8. 8. Sri.R.T.Pradeep, the learned counsel appearing for the petitioner, advanced the following contentions: a) The amendment brought to Rule 20(6) as per which, the post of Library Assistant was excluded from the ambit of the non-obstante clause would have the effect of altering the conditions of service of employees such as the petitioners, who were recruited prior to the coming into force of the Rules, 2007. According to the learned counsel, the non-obstante clause was inserted into the Rules to protect the crystallized rights of the employees who were recruited prior to 01.01.2007 in the matter of qualifications. - b) By bringing in the amendment, the 1st respondent has created an unreasonable classification. The employees who were recruited prior to the amendment are having the qualification only as per the repealed rules. However, after the amendment, only persons having the qualifications **W.P. (C) No.33690 of 2019** ## **: 18 :** prescribed to the post can aspire for promotion. This classification does not have an intelligible differentia and there is no rational nexus with the object sought to be achieved. - c) As the job of the Library Assistant is only to sort out books and to comply with the directions issued by his superiors, the insistence on higher qualification is unwarranted. - d) The amendment brought out has excluded the right of the feeder category candidates to aspire to the post of Library Assistant. As the exercise has entrenched into the vested rights of the employees, the same is unreasonable and vitiated by arbitrariness. - e) Relying on the law laid down in **Ramphal Dangi v. State of Haryana[ 1 ]** - it is submitted by the learned counsel that though the rule maker has the power to give retrospective effect to legislation, if the consequences of such an enactment result in violation of any right or if it tramples or subverts individual rights, then such an enactment giving retrospective 1 [LAWS (P& H) 2018 1 189] **: 19 :** ## **W.P. (C) No.33690 of 2019** effect would have to be nullified. According to the learned counsel, the action of the 1st respondent would clearly be against the doctrine of classification, and it would deprive the employees, such as the petitioner, of protection under Article 14 of the Constitution of India. 9. Sri. B.G.Hareendranath, the learned counsel appearing for the 1st respondent while controverting the contentions of Sri. R.T.Pradeep advanced the following submissions: a) The Chief Justice, after calling for a detailed report from the Committee for framing High Court Rules and High Court Service Rules and after recognizing the fact that the nature of the job of the Library Assistant demands the qualification prescribed in Rules, 2007, and for the better functioning and efficiency of the Library, had granted assent to the amendment so that it could effect from 01.01.2019. The procedure followed was transparent, and after hearing the objections/representations from all quarters. **W.P. (C) No.33690 of 2019** ## **: 20 :** b) The amendment was brought in, and the Library Assistant was excluded from the ambit of Rule 20(6) with a clear objective. The enhanced qualification was prescribed for the Library Assistants to improve the efficiency of the Library and for better utilization of digital resources. By experience, it was felt that persons bereft of qualifications prescribed as per the Rules, 2007 will have no value addition, and their services cannot be used for the proper functioning of the Library, which has turned natively digital. c) Relying on the law laid down in **Union of India and Ors. v. Krishna Kumar and Ors.[ 2 ]** , **CMD/Chairman, Bharat Sanchar Nigam Limited and Ors. v. Mishri Lal and Ors[ 3 ] .** , **Sankara Narayanan V.R. and Ors. v. A.P.Gopinathan and Ors.[ 4 ]** submitted that there cannot be any fundamental right or vested right for promotion 10. I have carefully considered the submissions advanced and have gone through the materials made available by both sides. > 2 [(2019) 4 SCC 319] > 3 [(2011) 14 SCC 739] > 4 [2008 (4) KLT 377] 2 **W.P. (C) No.33690 of 2019** ## **: 21 :** 11. The relevant provisions have already been extracted above. The petitioners are aggrieved by the amendment which was brought to Rule 20(6) whereby the post of Library Assistant was excluded from the operation of the Rule with retrospective effect. Essentially the assertion of the petitioners is that the exclusion of Library Assistant from the ambit of Rule 20(6) would affect the vested rights of the petitioners to aspire for promotion to a higher post. 12. To answer the points raised by the petitioners, the following issues are to be addressed: - (a) The circumstances which persuaded the Chief Justice to bring about an amendment to Rule 20(6) of the Rules, 2007. - (b) The nature and scope of the powers conferred on the Chief Justice of the court under Article 229 of the Constitution to frame Rules for regulating the conditions of the service of officers and servants of the High Court. - (c) Whether by the exclusion of the post of Library Assistant from the ambit of Rule 20(6) of the Rules, 2007 the vested right of any of the employees falling in Division II who were in service as on **W.P. (C) No.33690 of 2019** ## **: 22 :** 01.01.2007 to aspire for the post of Library assistant was taken away? - (d) If the answer to clause (c) above is in the affirmative, should not the Rules be struck down as arbitrary and unreasonable? - (e) Whether by granting retrospective to the amendment, a classification has been created among persons occupying the post of Library Assistant, which does not have an intelligible differentia, and there is no rational nexus with the object sought to be achieved? 13. The circumstances which led to the amendment of the Rules have to be narrated in some detail. As per the provisions of the High Court Service Rules 1970, the qualification prescribed for the post of Library Assistant was a pass in SSLC. The 1970 Rules were repealed, and the Rules, 2007 came into force on 01.01.2007. The post of Library Assistant is categorized as No.4 in Sub-Division (6) of Division II of the Rules, 2007. The qualification prescribed for the post is University Degree and a degree or Diploma in Library Science **.** Higher qualification was insisted on with a specific objective. Modern law libraries are concerned with law books and journals, magazines, audiovisual resources, and database software and technology. A Librarian's duties would include offering **W.P. (C) No.33690 of 2019** **: 23 :** reference and research aid to knowledge seekers, which in the case of the High Court would include Judges, Advocates, Registrars, Judicial Officers, Research Scholars, interns, etc. The duty of the Librarian would, among other things, include the cataloging and classification of materials, maintaining the library's online databases and catalogues, aiding in the acquisition of new materials, providing computer and technical support, and ensuring the smooth functioning and operation of e-granthalaya and other digital law software. Typically, a Library Assistant serves a supporting role in the day-to-day operations of the library and must provide full support to the Chief Librarian. Additionally, they are responsible for preparing volumes for circulation or digitization. This would be in addition to the duties entrusted with them in Exhibit R1(f) circular. Despite fixing higher qualifications, exemption from the qualification prescribed under the Rules was extended to incumbents in service in the lower or feeder categories as on the date of coming into force of the Rules. 14. However, during the operation of the Rules, the need for having qualified personnel as Library Assistants was felt. The matter was referred for the consideration of the Committee for framing High Court Rules and High Court Service Rules. The Committee, after considering all relevant facts and obtaining **W.P. (C) No.33690 of 2019** **: 24 :** inputs from various quarters, opined that the nature of the job of Library Assistant demands the qualification prescribed in the Rules, 2007. The committee also opined that the exemption granted to incumbents in service from having the qualification would affect the quality, efficiency, and betterment of the institution. It was in the said circumstances that directions to the registry to initiate steps to repeal the relevant provisions of the Rules, 2007, by invoking Rule 39 of the Rules, 2007. The Rule committee to which the matter was referred took the view that the work of Library Staff, including Library Assistants, demands a thorough knowledge of the Library System so that conventional methods and technological advancements in the field of information could be applied. The Committee also opined that higher qualifications for the post of Library Assistant were prescribed to ensure full, effective, and speedy utilization of Library resources by all the stakeholders. It was after considering all the inputs that the Hon’ble Chief Justice ordered that the amendments suggested by the Rule Committee shall take effect from 01.01.2019. 15. Having understood the sequence of events that led to the amendment, the next question is whether the action of the Chief Justice in **W.P. (C) No.33690 of 2019** **: 25 :** bringing in an amendment to the Rules, that too with retrospective effect, can be called in question by the petitioner on the grounds raised by them. 16. It was in the exercise of the powers conferred by Article 229 of the Constitution of India that the Chief Justice made the Rules, 2007, to regulate the recruitment and the conditions of service of the members of the Kerala High Court Service. Article 229 reads as under: “ **229. Officers and servants and the expenses of High Courts** .—(1) Appointments of officers and servants of a High Court shall be made by the Chief Justice of the Court or such other Judge or officer of the Court as he may direct: Provided that the Governor of the State may by rule require that in such cases as may be specified in the rule no person not already attached to the Court shall be appointed to any office connected with the Court save after consultation with the State Public Service Commission. (2) Subject to the provisions of any law made by the Legislature of the State, the conditions of service of officers and servants of a High Court shall be such as may be prescribed by rules made by the Chief Justice of the Court or by some other Judge or officer of the Court authorised by the Chief Justice to make rules for the purpose: Provided that the rules made under this clause shall, so far as they relate to salaries, allowances, leave or pensions, require the approval of the Governor of the State. (3) The administrative expenses of a High Court, including all salaries, allowances and pensions payable to or in respect of the officers and servants of the court, shall be charged upon the Consolidated Fund of the State, and any fees or other moneys taken by the Court shall form part of that Fund.” **W.P. (C) No.33690 of 2019** **: 26 :** Clause (2) of Article 229 enacts that conditions of service of officers and servants of the High Court shall be such as may be prescribed by rules made by the Chief Justice of the Court, subject to the provisions of any law made by the Legislature of the State. The proviso carves out the exception, requiring the approval of the Governor of the State only in respect of the rules “so far as they relate to salaries, allowances, leave or pensions.” Thus the approval according to the proviso is required only in respect of those rules which relate to salaries, allowances, leave, or pensions and not to other rules relating to the conditions of service of the officers and servants of the High Court. In **Satnam Singh v. Punjab & Haryana High Court[ 5 ]** , it was laid down by the Apex Court that the plain words of the proviso to clause (2) of Article 229 leave no doubt that the requirement of approval thereunder is confined to the rules only so far as they relate to salaries, etc. and no more. Article 229(2) states that subject to the provisions of any law made by the Legislature of the State, the conditions of the service of officers and servants of a High Court shall be such as may be prescribed by rules made by the Chief Justice of the Court or by some other Judge or officer of the Court authorised by the Chief Justice to make rules for the purpose. It is also provided that the rules made under Article 229(2) shall, so far as they relate to salaries, allowances , leave or provisions, > 5 (1997) 3 SCC 353 **W.P. (C) No.33690 of 2019** ## **: 27 :** require the approval of the Governor of the State. The law as to the scope of Article 229 of the Constitution of India and the powers of the Chief Justice, to make rules, has been settled by a series of judgments of the Supreme Court. We may gainfully refer to the State of A.P. v. Gopal Krishna Murthi [ AIR 1976 SC 123]. We may also gainfully refer to the judgments in State of Assam v. Bhuban [AIR 1975 SC 889] and Gurumoorthy v. A.G. [AIR 1971 SC 1850]. 17. The Hon’ble Supreme Court in **Gurumurthy v. Accountant General, Assam & Nagaland[ 6 ]** had occasion to consider the scope and ambit of the powers of the Chief Justice of the High Court under Article 229 of the Constitution of India. Paragraph 8 of the judgment reads as under: “The unequivocal purpose and obvious intention of the framers of the Constitution in enacting Art.229 is that in the matter of appointments of officers and servants of a High Court, it is the Chief Justice or his nominee who is to be the supreme authority and there can be no interference by the executive except to the limited extent that it is provided in the Article. This is essentially to secure and maintain the independence of the High Courts. The anxiety of the Constitution-makers to achieve that object is fully shown by putting the administrative expenses of a High Court including all salaries, allowances and pension payable to or in respect of officers and servants of the Court at the same level as the salaries and allowances of the Judges of the High Court nor can the amount of any expenditure so charged be varied even by the legislature. Cl.(1) read with Cl.(2) of Art.229 confers > 6 [AIR 1971 SC 1850] ## **W.P. (C) No.33690 of 2019** ## **: 28 :** exclusive power not only in the matter of appointments but also with regard to prescribing the conditions of service of officers and servants of a High Court by Rules on the Chief Justice of the Court. This is subject to any legislation by the State Legislature but only in respect of conditions of service. In the matter of appointments even the legislature cannot abridge or modify the powers conferred on the Chief Justice under Cl.(1). The approval of the Governor, as noticed in the matter of Rules, is confined only to such rules as relate to salaries, allowances, leave or pension. All other rules in respect of conditions of service do not require his approval.” 18. From the observations above, it needs no further clarification on the point that the power exercised under Article 229(1) of the Constitution is absolute and plenary. It is constitutionally conferred, and it is not subject to any legislative power either by the competent legislature or by the Governor in exercise of the power by the Governor under Article 213 of the Constitution. The conferment of such power on the Hon'ble Chief Justice under Article 229(1) of the Constitution is to secure the independence of the judiciary and obviously to insulate the officers and servants of the High Court also from the influence of the executive in any manner. Any law made by the State legislature relatable to the conditions of service of officers and servants of the High Court as comprehended by Article 229(2) cannot operate in such a manner as to interfere with the **W.P. (C) No.33690 of 2019** **: 29 :** exercise of the plenary power by the Chief Justice under Article 229(1) of the Constitution. 19. Rule 3 of the High Court Rules, 2007 deals with the interpretation of the Rules, and it provides that any question relating to the interpretation of the Rules, 2007 shall be decided by the Chief Justice, and subject to any decision in appeal therefrom, the decision of the Chief Justice shall be final. Rule 32 deals with the power of the Chief Justice to review. It says that notwithstanding anything contained in the Rules, the Chief Justice may, on his own motion or otherwise, review any order passed by himself or revise any order passed by the Registrar general. Rule 40 provides for repeal and savings, and sub-Rule (3) provides that nothing contained in the Rules shall be construed to limit or abridge the power of the Chief Justice to deal with the case of any member of the Service or any candidate to be appointed to the service in such manner as may appear to him to be just and equitable. A conjoint reading of Rules 3, 32, and 40 makes it clear that these provisions save the powers of the Chief Justice in the matter of appointment, which is conferred on him by Article 229 of the Constitution of India. The action of the Chief Justice in insisting upon qualification for the post of Library Assistant by the Chief Justice cannot be **W.P. (C) No.33690 of 2019** **: 30 :** interfered with by this Court particularly when the said action is in terms of the Rules. It is for very good reasons that the High Court Rules have conferred such discretion on the Chief Justice. When the power of the Chief Justice to fix up the conditions of service is saved, this Court, in the exercise of its discretionary powers, will not be justified in disregarding the letter of the Statute and instead is bound to give effect to its clear language. It is settled law that where the language of an Act is clear and explicit, the Court must give effect to it, whatever may be the consequences, for, in that case, the words of the statute speak the intention of the law-making authority. Any interference on the grounds raised in this writ petition would amount to overriding Constitutional provisions contained in Article 229 and the Rules. 20. In the context of Article 146 of the Constitution, which deals with the Officers and servants of the Supreme Court, K.T. Kochu Thommen. J, as his Lordship then was, had occasion to observe as follows in **Supreme Court Employees' Welfare Association and Ors. vs. Union of India (UOI) and Ors[ 7 ]** 94. It is not and cannot be disputed that the Chief Justice of India, by virtue of the constitutional grant, exercises legislative power when he makes rules > 7 **(1989) 4 SCC 187** **W.P. (C) No.33690 of 2019** ## **: 31 :** under Article 146(2). Those rules are in the nature of subordinate legislation having the force of law to the extent, and subject to the conditions, prescribed by the Constitution. Like all statutory instruments, they are subordinate to the parent law. The power of the President under the proviso to clause (2) of Article 146 to approve or disapprove the rules made by the Chief Justice of India (relating to salaries, allowances etc.) is likewise legislative in character. It is the approval of the President that stamps such rules, so far as they relate to salaries, allowance, etc., with the authority of subordinate legislation. The making of the rules by the Chief Justice of India in that respect is a step — indeed a vital step — in the process of law-making, but they assume the character of subordinate legislation only on their approval by the President. xxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxx 97. The fact that the power exercised by the Chief Justice of India or the President under Article 146(2) is derived directly from the Constitution, and not from a statute, makes no difference to the power of judicial review by a competent court. Any action taken (or refusal to act) on the strength of power derived directly by constitutional delegation is as much justiciable or reviewable upon the same grounds and to the same extent as in the case of any statutory instrument. The fundamental question in determining whether the exercise of power by an authority is subject to judicial review is not whether the source of his power is the Constitution or a statute, but whether the subject-matter under challenge is susceptible to judicial review. Pure questions of facts or questions which cannot be decided without recourse to elaborate evidence or matters which are generally regarded as not justiciable — such as, for example, those relating to the conduct of the external affairs or the defence of the nation — are not amenable to judicial review [ See in this connection the principle enunciated in C.C.S.U. v. Minister for the Civil Service , (1984) 3 All ER 935, 948, 950] . 98. Rules made under Article 146 being subordinate legislation do not partake of the character of ordinances which are legislation in the true sense for the limited period of their operation : K. Nagaraj v. State of A.P. [(1985) 1 SCC 523, 548, A.K. Roy v. Union of India [(1982) 1 SCC 271 and R.K. Garg v. Union of India [(1981) 4 SCC 675, 687]. While ordinances **W.P. (C) No.33690 of 2019** ## **: 32 :** cannot perhaps be questioned on any ground which is not relevant to the validity of legislation, it is not so in the case of rules made by virtue of power granted under the Constitution which are, as stated above, liable to be declared void for any of the reasons for which instruments made by virtue of delegation by Acts of Parliament can be declared void. Rules, whether made under the Constitution or a statute, must be intra vires the parent law under which power has been delegated. They must also be in harmony with the provisions of the Constitution and other laws. If they do not tend in some degree to the accomplishment of the objects for which power has been delegated to the authority, courts will declare them to be unreasonable and, therefore, void. 99. There is indeed a higher degree of presumption of constitutionality in favour of subordinate legislation than in respect of administrative orders. This is especially the case where rules are made by virtue of constitutional conferment of power. Rules made directly under the Constitution may have in a certain sense greater legislative efficacy than rules made under a statute; within the field demarcated by the Constitution, the former can, if so provided, operate retrospectively. These rules are, of course, as in the case of all statutory instruments, controlled by the Constitution and the laws : see K. Nagaraj v. State of A.P. [(1985) 1 SCC 523, 548] , Raj Kumar v. Union of India [(1975) 4 SCC 13, 14] and B.S. Vadera v. Union of India [AIR 1969 SC 118]. 100. Where the validity of a subordinate legislation (whether made directly under the Constitution or a statute) is in question, the court has to consider the nature, objects and scheme of the instrument as a whole, and, on the basis of that examination, it has to consider what exactly was the area over which, and the purpose for which, power has been delegated by the governing law. 101 **.** Rules are liable to be declared invalid if they are manifestly unjust or oppressive or outrageous or directed to an unauthorised end or violative of the general principles of the law of the land or so vague that it cannot be predicted with certainty as to what is prohibited by them or so **W.P. (C) No.33690 of 2019** ## **: 33 :** unreasonable that they cannot be attributed to the power delegated or otherwise disclose bad faith. In the words of Lord Russel of Killowen, C.J., in Kurse v. Johnson [(1898) 2 QB 91, 99-100] : “If for instance, they were found to be partial or unequal in their operation as between different classes; if they were manifestly unjust; if they disclosed bad faith; if they involved such oppressive or gratuitous interference with the rights of those subject to them as could find no justification in the minds of reasonable men, the court might well say, ‘Parliament never intended to give authority to make such rules; they are unreasonable and ultra vires’.” **==> picture [468 x 33] intentionally omitted <==** 21. The powers conferred on the Chief Justice of the High Court under Article 229 are akin to the powers conferred on the Chief Justice of India under Article 146 of the Constitution. The observations above are equally applicable to the powers exercised under Article 229. In other words, by virtue of the constitutional grant, the Chief Justice exercises legislative power when he makes rules under Article 229(2). Those rules are in the nature of subordinate legislation having the force of law to the extent and subject to the conditions prescribed by the Constitution. Like all statutory instruments, they are subordinate to the parent law. Rules made under Article 229, being subordinate legislation, do not partake of the character of ordinances which are legislation in the true sense for the limited period of their operation. While ordinances cannot **W.P. (C) No.33690 of 2019** **: 34 :** perhaps be questioned on any ground which is not relevant to the validity of legislation, it is not so in the case of rules made by virtue of the power granted under the Constitution, which is, as stated above, liable to be declared void for any of the reasons for which instruments made by virtue of delegation by Acts of Parliament can be declared void. Of course, Rules, whether made under the Constitution or a statute, must be intra vires the parent law under which power has been delegated. They must also be in harmony with the provisions of the Constitution and other laws. If they do not tend in some degree to the accomplishment of the objects for which power has been delegated to the authority, courts are entitled to declare them to be unreasonable and, therefore, void. There is indeed a higher degree of presumption of constitutionality in favor of subordinate legislation than in respect of administrative orders. This is especially the case where rules are made by virtue of constitutional conferment of power. Furthermore, Rules made directly under the Constitution may have, in a certain sense, greater legislative efficacy than rules made under a Statute; within the field demarcated by the Constitution, the former can, if so provided, operate retrospectively. These rules are, of course, as in the case of all statutory instruments, controlled by the Constitution and the laws. Where the validity of **W.P. (C) No.33690 of 2019** **: 35 :** subordinate legislation (whether made directly under the Constitution or a statute) is in question, the Court has to consider the nature, objects, and scheme of the instrument as a whole and, on the basis of that examination, it has to consider what exactly was the area over which, and the purpose for which, power has been delegated by the governing law. Rules are liable to be declared invalid if they are manifestly unjust or oppressive, outrageous, or directed to an unauthorized end or violative of the general principles of the law of the land or so vague that it cannot be predicted with certainty as to what is prohibited by them or so unreasonable that they cannot be attributed to the power delegated or otherwise disclose bad faith. The petitioners have not raised any contention or raised any grounds to invalidate the Rule on any of the grounds above. 22. The contention of the petitioners that they, being incumbents in service on 01.01.2007, by bringing in an amendment with retrospective effect, their vested rights have been taken away needs to be addressed next. Their contention is that the employees who were in service as on 01.01.2007 fall into the feeder category in terms of the qualifications prescribed under the repealed rules. A perusal of Annexure 1 of the Rules, 2007 would reveal that method of appointment to the post of Library Assistant is “appointment by transfer” or **W.P. (C) No.33690 of 2019** **: 36 :** “direct recruitment.” Nowhere in the Rules the feeder category from which the appointment is to be made has been mentioned. Rule 20(6) of the Rules, 2007 speaks about promotion to higher categories. As per Rule 2(1), “Appointment by Promotion” means the appointment of an approved probationer to a higher post in the direct line of promotion. It further says that appointment by transfer by a member of the service from a category in a lower division to a category in a higher division or from a lower scale to a higher scale in the same division shall also be treated as promotion. As the petitioners fall in the same division as Library Assistants, only if they are being transferred from a lower scale to a higher scale can it be treated as promotion going by Rule 2(1). In the counter affidavit, the respondents have asserted that the exemption under Rule 20(6) would not be applicable to a person holding a post in Division II having an identical scale of pay as that of the post to which appointment by transfer is to be made. This assertion of the respondents has not been controverted by the petitioners. In that view of the matter, the contention of the respondents that employees like the petitioner will not be entitled to avail of the exemption under Rule 20(6) cannot be ignored. **W.P. (C) No.33690 of 2019** ## **: 37 :** 23. I shall address the question with regard to the grant of retrospectivity in the operation of the Rules next. I have already held that the rules made under Article 229 of the Constitution are legislative in character. In the context of Article 309 of the Constitution of India, it was held in **Raj Kumar v. Union of India[ 8 ]** that since a rule under the proviso to Article 309 of the Constitution of India is legislative in character, the rule can be amended, even with retrospective effect, just as legislation can be amended with retrospective effect. In **CMD/Chairman, Bharat Sanchar Nigam Limited and Ors.[ 9 ]** , it was held as follows in paragraph No. 12 of the judgment. 12. It is well settled that the legislature can legislate retrospectively vide M.P.V. Sundararamier & Co. v. State of A.P. [AIR 1958 SC 468] , J.K. Jute Mills Co. Ltd. v. State of U.P. [AIR 1961 SC 1534], Jadao Bahuji v. Municipal Committee, Khandwa [AIR 1961 SC 1486] , Govt. of A.P. v. Hindustan Machine Tools Ltd. [(1975) 2 SCC 274 : AIR 1975 SC 2037] , Nandu Mal Girdhari Lal v. State of U.P. [1993 Supp (1) SCC 338] , etc. Hence, the approach of the High Court, in our opinion, was totally incorrect. This would seal the issue with regard to the grant of retrospectivity to the Rule is concerned. > 8 [(1975) 4 SCC 13] > 9 [(2011) 14 SCC 739] **W.P. (C) No.33690 of 2019** **: 38 :** 24. The next question is whether the petitioner has any vested right and whether such vested right can be taken away by amendment of the rules. Sri. R.T.Pradeep, the learned counsel appearing for the petitioner, would profusely rely on the law laid down in **Railway Board v. C.R. Rangadhamaiah[ 10 ] ,** and it was argued that the rights of the petitioners having been crystallized, it cannot be altered with effect from an anterior date, thereby taking away the benefits available to the employee under the existing rule. I am afraid that the contention forcefully advanced by the learned counsel cannot be accepted. Only if by way of an amendment, having a retrospective operation, a benefit already available to an employee is taken away can it be said that such a provision is arbitrary, discriminatory, and violative of the rights guaranteed under the constitution. As held by the Apex Court in **High Court of Delhi v. A.K.Mahajan[ 11 ]** , to be considered is a right of the employee but merely being considered, in itself, is not a benefit as it may or may not result in the selection or promotion of an employee and hence, it is in the nature of a chance. It was reiterated that promotion is not a right of the employee and a mere chance of promotion if affected, cannot and does not invalidate the action on the part of > [(2009) 12 SCC 62] > 10 [(1997) 6 SCC 623] 11 **W.P. (C) No.33690 of 2019** ## **: 39 :** the employer. That right of consideration may accrue at a particular point of time or subsequently thereto. Merely because, at a particular point of time, the employee is not considered does not mean the total denial of the consideration of the employee. It would be profitable to extract paragraphs Nos. 18 to 22 of the judgment. 18. The only question that has remained to be decided is as to whether because of the retrospective nature of the amendment, the amendment itself could be invalidated to the extent of retrospectivity. In our opinion, the answer is negative. 19. The High Court has mainly relied on Railway Board v. C.R. Rangadhamaiah [(1997) 6 SCC 623] and more particularly, para 24 thereof. Shri Misra, learned counsel for the respondents also very heavily relied on Rangadhamaiah case [(1997) 6 SCC 623]. The said para 24 is as follows: ( Rangadhamaiah case [(1997) 6 SCC 623] , SCC p. 638) “ 24 . In many of these decisions the expressions ‘vested rights’ or ‘accrued rights’ have been used while striking down the impugned provisions which had been given retrospective operation so as to have an adverse effect in the matter of promotion, seniority, substantive appointment, etc. of the employees. The said expressions have been used in the context of a right flowing under the relevant rule which was sought to be altered with effect from an anterior date and thereby taking away the benefits available under the rule in force at that time. It has been held that such an amendment having retrospective operation which has the effect of taking away a benefit already available to the employee under the existing rule is arbitrary, discriminatory and violative of the rights **W.P. (C) No.33690 of 2019** **: 40 :** guaranteed under Articles 14 and 16 of the Constitution. We are unable to hold that these decisions are not in consonance with the decisions in Roshan Lal Tandon [ Roshan Lal Tandon v. Union of India , AIR 1967 SC 1889] , B.S. Vadera [ B.S. Vadera v. Union of India , AIR 1969 SC 118] and Raman Lal Keshav Lal Soni [ State of Gujarat v. Raman Lal Keshav Lal Soni , (1983) 2 SCC 33] .” The learned counsel pointed out as held by the High Court that any provision with retrospective operation, having an adverse effect in the matter of promotion, seniority, substantive appointment, etc. of the employees would be bad in law and would be in breach of Articles 14 and 16 of the Constitution of India. The High Court also proceeded to hold that since one of the writ petitioners, who were invited for the interview in the year 1994 was not invited in the year 1995, the vested right of the writ petitioner had been adversely affected by the retrospective operation of the Rules. 20. We must observe that the said para 24 of Rangadhamaiah case [(1997) 6 SCC 623] is being interpreted in an erroneous way. Its clear language suggests that where the amendment, having retrospective operation, which has the effect of taking away a benefit already available to the employee, then such a provision is arbitrary, discriminatory and violative of the rights guaranteed under Articles 14 and 16 of the Constitution of India. 21. Now, we find no discussion in the whole judgment of the High Court as to what was the benefit which was available to the said employee. The High Court has observed that the benefit of consideration, which was available to Writ Petitioner 8 prior to the retrospective amendment of the Rules, was not available to him after the amendment of the Rules. In our opinion, this is an incorrect notion. There can be no benefit of consideration. To be considered is a right of employee but merely being considered, in itself, is **W.P. (C) No.33690 of 2019** ## **: 41 :** not a benefit as it may or may not result in the selection or promotion of an employee and hence it is in the nature of a chance. A mere chance of promotion being affected by amendment is in our opinion inconsequential. 22. This Court has time and again held that since promotion is not a right of the employee, a mere chance of promotion if affected cannot and does not invalidate the action on the part of the employer. That right of consideration may accrue at a particular point of time or subsequently thereto. Merely because at a particular point of time the employee is not considered, does not mean the total denial of the consideration of the employee. **==> picture [468 x 33] intentionally omitted <==** ## 25. In **CMD/Chairman** (supra), on the question of taking away of vested rights with retrospective effect, it was held as follows in paragraph No. 15 to 18 of the judgment. 15. No doubt in some decisions it was held that a vested right cannot be taken away by amendment of the rules. But what does this really mean? Since a rule under the proviso to Article 309 is legislative in character vide Raj Kumar v. Union of India [(1975) 4 SCC 13] the rule can be amended, even with retrospective effect, just as a legislation can be amended with retrospective effect. - 16 **.** In our opinion the expression “vested right” could only mean a vested constitutional right, since a constitutional right cannot be taken away by amendment of the rules. This is evident from the Constitution Bench decision of this Court in Railway Board v. C.R. Rangadhamaiah [(1997) 6 SCC 623] . It was held therein that pension is no longer treated as a **W.P. (C) No.33690 of 2019** ## **: 42 :** bounty but was a valuable constitutional right under Articles 19(1)( f and 31(1) of the Constitution, which were available on 1-1-1973 and 1-4-1974 (that is, before the 44th Constitution Amendment). Since this was a constitutional right it could not be taken away by amendment of the rules. The Constitution is the supreme law of the land, and hence a constitutional right can only be taken away by amending the Constitution, not by amending the rules or even by amending the statute. 17. Hence, in view of the aforesaid Constitution Bench decision the other decisions of this Court of smaller Benches must be understood to mean that a vested constitutional right cannot be taken away by amendment of the rules. It follows that if the vested right is not a constitutional right it can be taken away by retrospective amendment of the rules. A legislative act can destroy existing rights (unless it is a constitutional right). Thus, even a taxing statute can be made retrospectively, and this usually affects existing rights vide Union of India v. Madan Gopal Kabra [AIR 1954 SC 158] , Jawaharmal v. State of Rajasthan [AIR 1966 SC 764] (p. 770), Tisco Ltd. v. State of Bihar [AIR 1958 SC 452] , D.G. Gose & Co. (Agents) (P) Ltd. v. State of Kerala [(1980) 2 SCC 410 : AIR 1980 SC 271] (SCC para 53 : AIR para 16) and Shetkari Sahakari Sakhar Karkhana Ltd. v. Collector [(1980) 1 SCC 381] (SCC paras 13-14), etc. 18. A rule made under the proviso to Article 309 is a legislative act (though made by the executive). It is not a piece of delegated legislation like a rule made under a statute. Hence it can be amended retrospectively. **W.P. (C) No.33690 of 2019** **: 43 :** 26. In view of the principles laid above, the contention of the petitioner that the petitioners have acquired vested rights cannot be accepted. So also their contention that the amendment cannot be brought in with retrospective effect also cannot be accepted. 27. In **Deepak Agarwal v. State of U.P.[ 12 ]** , the appellants had approached the Hon'ble Supreme Court aggrieved by the judgment rendered by the High Court upholding the notifications, amendments, and orders issued by the Government, which resulted in them being denied their promotion. Despite the fact that the earlier Rules provided for their promotion to the position of Deputy Excise Commissioner, the government decided to amend the Rules because, given their work experience, duties, and qualifications, the statistical officer and technical officer could not have been deemed suitable for promotion to the position of DEC, for which only inspectors of the excise department are qualified. Dismissing the appeal, the Apex Court had observed as follows in paragraphs 26 and 27 of the judgment as under: “ 26. It is by now a settled proposition of law that a candidate has the right to be considered in the light of the existing rules, which implies the “Rules in force” on the date the consideration took place. There is no rule of universal > 12 (2011) 6 SCC 725 **W.P. (C) No.33690 of 2019** ## **: 44 :** or absolute application that vacancies are to be filled invariably by the law existing on the date when the vacancy arises. The requirement of filling up old vacancies under the old rules is interlinked with the candidate having acquired a right to be considered for promotion. The right to be considered for promotion accrues on the date of consideration of the eligible candidates. Unless, of course, the applicable rule, as in Y.V. Rangaiah case [ Y.V. Rangaiah v. J. Sreenivasa Rao , (1983) 3 SCC 284] lays down any particular time-frame, within which the selection process is to be completed. In the present case, consideration for promotion took place after the amendment came into operation. Thus, it cannot be accepted that any accrued or vested right of the appellants has been taken away by the amendment. 27. The judgments cited by the learned counsel for the appellants, namely, B.L. Gupta v. MCD [ B.L. Gupta v. MCD , (1998) 9 SCC 223], P. Ganeshwar Rao v. State of A.P. [ P. Ganeshwar Rao v. State of A.P. , 1988 Supp SCC 740] and N.T. Devin Katti v. Karnataka Public Service Commission [ N.T. Devin Katti v. Karnataka Public Service Commission , (1990) 3 SCC 157] are reiterations of a principle laid down in Y.V. Rangaiah case [ Y.V. Rangaiah v. J. Sreenivasa Rao , (1983) 3 SCC 284] .” ## xxxxxxxxxxxxxxxxx 29. The High Court has noticed that the posts of Technical Officers and Statistical Officers have been deleted from the feeder cadre for promotion to the post of Deputy Excise Commissioner for valid reasons. The Government was of the opinion that the Technical Officers and Statistical Officers were not suitable to be promoted on the post of Deputy Excise Commissioner, which involved multifarious administrative responsibilities. The experience gained by the officials working on the post of Technical Officer and Statistical Officer was of no relevance for the duties to be performed on the post of Deputy Excise Commissioner. Consequently, a conscious decision was taken to abolish the **W.P. (C) No.33690 of 2019** ## **: 45 :** feeder cadre consisting of Technical Officers and Statistical Officers for promotion to the post of Deputy Excise Commissioner. The Division Bench, therefore, correctly applied the ratio laid down in Dr. K. Ramulu case [(1997) 3 SCC 59] wherein this Court reiterated the ratio in Union of India v. K.V. Vijeesh [(1996) 3 SCC 139] that for reasons germane to the decision, the Government is entitled to take a decision not to fill up the existing vacancies on the relevant date. 28. The Apex Court noted the rationale behind the Government taking the view that the post of Technical Officers and Statistical Officers had to be deleted from the feeder cadre for promotion to the post of Deputy Excise Commissioner and it was held to be valid. The very same circumstances prevail here as well. A candidate has the right to be considered in the light of the existing rules, which implies the “Rules in force” on the date the consideration took place. The requirement of filling up old vacancies under the old rules is interlinked with the candidate having acquired a right to be considered for promotion. The right to be considered for promotion accrues on the date of consideration of the eligible candidates. The contention of the petitioner that accrued and vested rights of the petitioners have been taken away by the amendment cannot, therefore, be accepted. **W.P. (C) No.33690 of 2019** **: 46 :** 29. In **State of Jammu and Kashmir v. Shri Triloki Nath Khosa and Ors.[ 13 ]** rules had been framed altering the criterion of eligibility for promotion from the post of Assistant Engineer to the post of Executive Engineer and the same were challenged on the ground of retrospectivity by the Assistant Engineers who were in service on the date of making of these rules. Rejecting the said contention, the Apex Court held this in paragraphs No.16 and 34 of the judgment as under “ 16 . … It is wrong to characterise the operation of a service rule as retrospective for the reason that it applies to existing employees. A rule which classifies such employees for promotional purposes, undoubtedly operates on those who entered service before the framing of the rule but it operates in futuro, in the sense that it governs the future right of promotion of those who are already in service. The impugned rules do not recall a promotion already made or reduce a pay scale already granted. They provide for a classification by prescribing a qualitative standard, the measure of that standard being educational attainment. Whether a classification founded on such a consideration suffers from a discriminatory vice is another matter which we will presently consider but surely, the rule cannot first be assumed to be retrospective and then be struck down for the reason that it violates the guarantee of equal opportunity by extending its arms over the past. If rules governing conditions of service cannot ever operate to the prejudice of those who are already in service, the age of superannuation should have remained immutable and schemes of compulsory retirement in public interest ought to > 13 [(1974) 1 SCC 19] **W.P. (C) No.33690 of 2019** **: 47 :** have foundered on the rock of retroactivity. But such is not the implication of service rules nor is it their true description to say that because they affect existing employees they are retrospective.” ## **xxxxxxxxxxxxx xxxxxxxxxxxxxxxxx** “ 34 . On the facts of the case, classification on the basis of educational qualifications made with a view to achieving administrative efficiency cannot be said to rest on any fortuitous circumstances and one has always to bear in mind the facts and circumstances of the case in order to judge the validity of a classification. The provision in the 1939 Rules restricting direct recruitment of Assistant Engineers to engineering graduates, the dearth of graduates in times past and their copious flow in times present are all matters which can legitimately enter the judgment of the rule-making authority. In the light of these facts, that judgment cannot be assailed as capricious or fanciful. Efficiency which comes in the trial of higher mental equipment can reasonably be attempted to be achieved by restricting promotional opportunities to those possessing higher educational qualifications. And we are concerned with the reasonableness of the classification, not with the precise accuracy of the decision to classify nor with the question whether the classification is scientific. Such tests have long since been discarded.” 30. In **Union of India v. Krishna Kumar[ 14 ]** , following the law laid down in **Deepak** (supra), it was held as follows in paragraph No.12 of the judgment > 14 (2019) 4 SCC 319, **W.P. (C) No.33690 of 2019** **: 48 :** 12. Recently, in State of Tripura v. Nikhil Ranjan Chakraborty [ State of Tripura v. Nikhil Ranjan Chakraborty , (2017) 3 SCC 646], another two-Judge Bench of this Court held thus: (SCC pp. 650-51, para 9) “ 9. The law is thus clear that a candidate has the right to be considered in the light of the existing rules, namely, “rules in force on the date” the consideration takes place and that there is no rule of absolute application that vacancies must invariably be filled by the law existing on the date when they arose. As against the case of total exclusion and absolute deprivation of a chance to be considered as in Deepak Agarwal [ Deepak Agarwal v. State of U.P. , (2011) 6 SCC 725], in the instant case certain additional posts have been included in the feeder cadre, thereby expanding the zone of consideration. It is not as if the writ petitioners or similarly situated candidates were totally excluded. At best, they now had to compete with some more candidates. In any case, since there was no accrued right nor was there any mandate that vacancies must be filled invariably by the law existing on the date when the vacancy arose, the State was well within its rights to stipulate that the vacancies be filled in accordance with the Rules as amended. Secondly, the process to amend the Rules had also begun well before the Notification dated 24-11-2011.” **==> picture [468 x 33] intentionally omitted <==** 31. The next question advanced by the learned counsel is that since 2007, several persons falling in Division II and similarly placed as the petitioners with qualifications prescribed under the repealed rules have been recruited to the post of Library Assistant, and by bringing in the amendment, a classification is **W.P. (C) No.33690 of 2019** **: 49 :** created. It is contended by the petitioner that the amendment creates a classification that does not have an intelligible differentia, and there exists no rational nexus with the objects sought to be achieved by such classification. I have already detailed the reasons which persuaded the rule maker to bring about the amendment. The petitioners appear to believe that the sole responsibility of a Library Assistant is to return books to their shelves. As described above, the work of a Librarian has evolved throughout the years. Experienced staff is required to meet the demands of those who utilize the Library's resources. By using their understanding of library and information science concepts and best practices for the management and operation of the Library, a qualified individual can improve the functionality of a library. He can assist the Librarian in organizing and cataloging the collections in a manner that is logical, consistent, and user-friendly. The competent Library Assistant can assist in implementing methods and procedures for the acquisition, processing, and circulation of library materials, including electronic resources. Using a range of technologies, such as online databases and other electronic resources, the Library Assistant can give reference and research assistance to library visitors. The Library Assistant can also expand his expertise and keep abreast of changes and best practices in the **W.P. (C) No.33690 of 2019** **: 50 :** sector. It was looking into all these aspects that the Chief Justice came to the conclusion that the non-insistence of such qualification would affect the quality, efficiency, and betterment of the institution. The provisions of the Rules were followed in letter and spirit, and the amendment was carried out to ensure the full, effective, and speedy utilization of Library resources by all the stakeholders. 32. In **Sankara Narayanan v Gopinathan[ 15 ]** , a situation arose when certain employees of the University challenged the requirement of a University Degree for promotion to the post of Section Officer in the University. The post of Selection Grade Assistant was the feeder category post for promotion to the post of Section Officer. No Particular educational qualification was fixed for the post of Section Officer. It was when the qualification of having a University Degree was insisted that the provisions were challenged. Repelling the contentions, a Division Bench of this Court proceeded to hold as follows in paragraph 2 of the judgment. 2. First, we shall consider the argument that there is no nexus for the requirement of higher qualification. It is the admitted fact that the post of Section Officer is a supervisory post. The University is not only dealing with the under graduate students but also students who are studying for post-graduate and Doctorate courses. A large number of employees are working in the University. As per the new amendment even Assistant Grade II post requires degree. Therefore almost all the Assistants have degree. It is > 15 (2008 (4) KLT 377) **W.P. (C) No.33690 of 2019** **: 51 :** true that in the feeder category the appointments also are made from direct recruits and the promotion is at the ratio of 2:1. But once they are merged into one service, they became single category and therefore for their further promotion, only the required qualification in the promotion post need be looked into. Those who have not the required qualification is not entitled to be promoted. The employees who are in service also bound by valid amendments as there is no fundamental right or vested right for promotion. Of course, those who got promotion as per the existing rules cannot be reverted because of the subsequent change in the service rules. These matters were settled by the Hon'ble Supreme Court in _State of Jammu & Kashmir v. Triloki Nath Khosa_ (AIR 1974 SC 1) and _T.R.Kapur and others v. State of Haryana & Ors._ (AIR 1987 SC 415). Recently, the Supreme Court in _P.Venugopal v. Union of India_ [(2008) 5 SCC 1] held that a person entering into Government service is no doubt liable to be dealt with by the relevant Act or the Rules as amended but it ceases to be so in the event of his success in challenging the constitutional validity of the same. A person appointed in Government service acquires a status and his service conditions are determined by service rules or statutory rules and not by contrary or inconsistent terms of contract, and such terms and conditions of service can be unilaterally altered by the Government. However, such amendment should not be unconstitutional. A University degree is made compulsory for promotion to the post of Section Officer by service rules. It cannot be stated that the existing employees in the University when the amendment was introduced are not bound by the same. The contention that there is no nexus in fixing the qualification of University degree for the post of Section Officer also cannot be accepted by us. Only if the qualification fixed is arbitrary, this Court can interfere. The post of Section Officer is a supervisory post. It cannot be stated that the fixation of University degree for promotion is illegal or discriminatory, so as to violate Art.14 of the Constitution especially even for direct recruitment for Assistant Grade II itself graduation is made **W.P. (C) No.33690 of 2019** ## **: 52 :** compulsory. Considering the nature of duties of Section Officer and considering the availability of graduates in the feeder category, it cannot be stated that the fixation of University degree as a minimum qualification for promotion to the post of Section Officer is illegal so as to warrant interference of this Court. The fixation of qualification in the promotion post cannot be held to be discriminatory. Similar issue was considered by a Full Bench of this Court in _Subaida Beevi S. v. State of Kerala and others_ (2005 (1) KLT 426 (F.B.) after considering various Supreme Court decisions. Therefore, we are of the view that fixation of University degree as basic qualification cannot be faulted and it cannot be said that there is no nexus in fixing any such qualification for promotion to the post of Section Officer. The observations made by the Division Bench are pertinent and shall apply to the facts of the instant case. In view of the discussion above, the contention vehemently advanced by the learned counsel that the classification is irrational and has no rational nexus with the object sought to be achieved cannot be accepted. 33. I conclude that the change to Rules, 2007 was enacted for the overall good and for improving the functioning of the institution. It was to ensure that the Chief Librarian obtains assistance from qualified and capable Library Assistants. I conclude that the petitioners have failed to demonstrate that the Rules are manifestly unjust, oppressive, unreasonable, or in violation of any rights guaranteed to the petitioners under the Constitution, or that it exceeds the **: 53 :** ## **W.P. (C) No.33690 of 2019** authority granted to the Chief Justice of the Court by Article 229 of the Constitution. I also hold that the petitioners have not acquired any vested rights, and there is no legal impediment preventing the Chief Justice from amending the Rule with retrospective effect. Finally, I hold that an employee has the right to be evaluated in accordance with the Rules in effect on the date of the evaluation, and not on the basis of the unamended Rules. In view of the findings above, I conclude that the petitioners have not made out any grounds for interfering with Exhibits P1 and P2 notifications and Exhibit P5 order. This writ petition will stand dismissed. There will be no order as to costs. All pending interlocutory applications will stand closed. Sd/- **RAJA VIJAYARAGHAVAN V, JUDGE** PS /29/12/2022. **W.P. (C) No.33690 of 2019** **: 54 :** ## **`APPENDIX OF WP(C) 33690/2019`** ``` PETITIONERS’ EXHIBITS: ``` - `EXHIBIT P1 TRUE COPY OF THE NOTIFICATION DATED 17.10.2019 BY WHICH SUB-RULE (6) OF RULE 20 OF KERALA HIGH COURT SERVICE RULES 2007 WAS AMENDED BY EXCLUDING THE POST OF LIBRARY ASSISTANT.` - `EXHIBIT P2 TRUE COPY OF THE NOTIFICATION DATED 23.10.2019 VIDE A6-14110/2018(2) FOR TWO VACANCIES OF LIBRARY ASSISTANT WITH QUALIFICATIONS PRESCRIBED BY KERALA HIGH COURT SERVICE RULES 2007.` - `EXHIBIT P3 TRUE COPY OF THE REPRESENTATION DATED 7.11.2019 BY THE EMPLOYEES BEFORE THE CHIEF JUSTICE OF HIGH COURT OF KERALA.` - `EXHIBIT P4 TRUE COPY OF THE OFFICIAL MEMORANDUM DATED 3.12.2019 BY WHICH EXHIBIT P3 IS REJECTED BY THE CHIEF JUSTICE OF HIGH COURT OF KERALA.` - `EXHIBIT P5 TRUE COPY OF THE ORDER DATED 3.12.2019 BY WHICH 2ND AND 3RD RESPONDENTS ARE APPOINTED TO THE POST OF LIBRARY ASSISTANT.` ``` EXHIBIT P6 TRUE COPY OF THE OFFICIAL MEMORANDUM DATED 10/06/2020 INVITING WILLINGNESS FROM PROSPECTIVE CANDIDATES. ``` **W.P. (C) No.33690 of 2019** ## **: 55 :** ## `RESPONDENTS’ EXHIBITS:` ``` EXHIBIT R1(A) TRUE COPY OF THE RELEVANT EXTRACT OF THE MINUTES IN ITEM NO.6 OF THE COMMITTEE FOR FRAMING HIGH COURT RULES HELD ON 03.12.2018. ``` ``` EXHIBIT R1(B) TRUE COPY OF THE ITEM NO.1 OF THE MINUTES OF THE COMMITTEE FOR FRAMING HIGH COURT RULES HELD ON 18.02.2019. ``` ``` EXHIBIT R1(C) TRUE COPY OF THE RELEVANT EXTRACT OF THE MINUTES IN ITEM NO.3 OF THE COMMITTEE FOR FRAMING HIGH COURT RULES HELD ON 19.06.2019. ``` ``` EXHIBIT R1(D) TRUE COPY OF THE MINUTES IN ITEM NO.1 OF THE COMMITTEE FOR FRAMING HIGH COURT RULES HELD ON 29.07.2019. EXHIBIT R1(E) TRUE COPY OF THE JUDGMENT IN SANKARA NARAYANAN V. GOPINATHAN (REPORTED IN 2008 (4) KLT 377). EXHIBIT R1(F) TRUE COPY OF THE HIGH COURT OFFICE CIRCULAR NO.2/2015 DATED 16.04.2015. EXHIBIT R1(G) TRUE COPY OF THE OFFICIAL MEMORANDUM DATED 23.10.2019. EXHIBIT R1(H) TRUE COPY OF THE OFFICIAL MEMORANDUM NO.A6-14110/2018, DATED 7.1.2020. EXHIBIT R1(I) TRUE COPY OF THE APPOINTMENT ORDER NO.A6-14110/2018 DATED 14.01.2020. ``` ## **W.P. (C) No.33690 of 2019** ## **: 56 :** ``` EXHIBIT R3(a) THE TRUE COPY OF THE OFFICIAL MEMORANDAM NO.A6-14110/2018 DATED 04.9.2018 ISSUED BY IST RESPONDENT. ``` - `EXHIBIT R3(b) THE TRUE COPY OF THE OFFIICAL MEMORANDUM NO.A6-14110/2018 DATED 17-09-2018 ISSUED BY IST RESPONDENT` - `EXHIBIT R3(c) THE TRUE COPY OF THE NOTIFICATION NO A6-14110 OF 2018 DATED 17.10.2019 BY WHICH SUB RULE-6 OF RULE 20 OF KERALA HGH COURT SERVICE RULES 2007 WAS AMENDED BY EXCLUDING THE POST OF LIBRARY ASSISTANT` ``` EXHIBIT R3(d) THE TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE 3R RESPONDENT THROUGH PROPER CHANNEL BEFORE THE COMMITTEE DATED 28.09.2018 ``` ``` EXHIBIT R3(e) THE TRUE COPY OF THE ORDER NO.A6-14110/2018 DATED 3.12.2019 ISSUED BY IST RESPONDENT Exhibit R6 A TRUE COPY OF THE ORDER NO.A6-14110/2018 DATED 20/7/2021 Exhibit R8(a) TRUE COPY OF THE ORDER NO.A6-14110/2018 DATED 19/9/2021. ```