W.P.(C). Nos. 7906 of 2012 and 19469 of 2012 (Kerala High Court) - Petitioners: Ramesh Babu C., Karthika, Babu Rajan Pillai S., Beeja S., Manoj G.N.; Respondents: State of Kerala, Kerala Public Service Commission, District Officers (KPSC) Kollam, Wayanad, Malappuram, and Kerala Water Authority

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **MONDAY, THE 10TH DAY OF JUNE 2013/20TH JYAISHTA 1935** ## **WP(C).No. 7906 of 2012 (K)** ## **---------------------------** ## **PETITIONER(S):** - **--------------------------** **1. RAMESH BABU.C., KARTHIKA, MUTHUPILAKKADU P.O., SASTHAMKOTTA, KOLLAM DISTRICT-690 520.** ## **2. BABU RAJAN PILLAI S.,** - **MANGALATHU PUTHEN VEEDU, ALTHARA MOODU, KADAKKAL P.O., KOLLAM-691 536.** **3. BEEJA S., BEEJA BHAVAN, VENGARA, THODIYOOR NORTH P.O., KARUNAGAPPALLY, KOLLAM.** **4. MANOJ G.N., MANOJ BHAVAN, PLAKKADU, KARUVELIL P.O., KOLLAM DISTRICT-691 505.** **BY ADV. SRI.UNNI. K.K. (EZHUMATTOOR)** ## **RESPONDENT(S):** - **----------------------------** **1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **2. THE KERALA PUBLIC SERVICE COMMISSION REPRESENTED BY ITS SECRETARY,PATTOM,** **THIRUVANANTHAPURAM - 695 004.** **3. THE DISTRICT OFFICER , KERALA PUBLIC SERVICE COMMISSION, KOLLAM-690 001.** **4. THE DISTRICT OFFICER , KERALA PUBLIC SERVICE COMMISSION, WAYANAD-673 121.** ## **5. THE DISTRICT OFFICER,** - **KERALA PUBLIC SERVICE COMMISSION, MALAPPURAM-676 505.** ## **6. THE MANAGING DIRECTOR,** - **KERALA WATER AUTHORITY,JALA BHAVAN,THIRUVANANTHAPURAM-695 033.** **R1 BY GOVERNMENT PLEADER SRI.NOUSHAD THOTTATHIL R2 TO R5 BY ADV. SRI.P.C.SASIDHARAN, SC, KPSC R6 BY ADV. SRI.GEORGE MATHEW, SC, KERALA WATER AUTHORITY** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10-06-2013 ALONG WITH WPC.NO.19469 OF 2012,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Kss** ## **WPC.NO.7906/2012 K** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXT.P1 : TRUE COPY OF THE NOTIFICATION IN THE EXTRA ORDINARY GAZETTE DTD.30.12.2006.** - **EXT.P2 : TRUE COPY OF THE RELEVANT PAGES OF THE RANK LIST NO.396/08/DOQ DTD.31.12.2008.** - **EXT.P3 : TRUE COPY OF THE RELEVANT PAGES OF THE RANK LIST NO.404/08/WYD DTD.1.1.2009.** - **EXT.P4 : TRUE COPY OF THE RELEVANT PAGES OF THE RANK LIST NO.411/08/ MLPM, DTD.31.12.2008.** - **EXT.P5 : TRUE COPY OF THE COMMUNICATION ISSUED BY THE 2ND RESPONDENT TO THE 6TH RESPONDENT.** - **EXT.P6 : TRUE COPY OF THE RELEVANT PAGE OF KERALA WATER AUTHORITY (ADMINISTRATIVE, MINISTERIAL AND LAST GRADE), SERVICE RULES,2011.** - **EXT.P7 : TRUE COPY OF THE INFORMATION GIVEN BY THE 6TH RESPONDENT ON 9.2.2012.** - **EXT.P8: TRUE COPY OF THE LETTER AND PERFORMA DTD. 5/07/2011 OF THE 6TH RESPONDENT.** - **EXT.P9: TRUE COPY OF THE LETTER DTD. 9/11/2011 OF THE 2ND RESPONDENT.** - **EXT.P10: TRUE COPY OF THE LETTER DTD. 14/10/2011 OF THE 2ND RESPONDENT TO 6TH RESPONDENT.** - **EXT.P11: TRUE COPY OF THE LETTER DTD. 28/10/2011 OF THE 2ND RESPONDENT TO 6TH RESPONDENT.** - **EXT.P12: TRUE COPY OF THE LETTER DTD. 1/03/2012 OF THE PRINCIPAL SECRETARY WATER RESOURCES DEPARTMENT.** - **EXT.P13: TRUE COPY OF LETTER DTD. 3.3.2012 OF THE 6TH RESPONDENT.** - **EXT.P14: TRUE COPY OF THE G.O.(P) NO.33/2011 /P&ARD DTD. 21/11/2011.** - **EXT.P15: TRUE COPY OF THE LETTER DTD. 3/3/2012 OF THE 6TH RESPONDENT TO THE 2ND RESPONDENT.** - **EXT.P16. TRUE COPY OF THE LETTER DTD.19/03/2012 OF THE 2ND RESPONDENT.** - **EXT.P17. TRUE COPY OF THE NOTIFICATION PUBLISHED IN THE WEBSITE OF THE PSC FOR THE CATEGORY NO.345/2012.** **..2/-** **Kss** **..2...** ## **WPC.NO.7906/2012 (K)** ## **RESPONDENTS' EXHIBITS:** **R1(A): COPY OF THE LETTER DTD. 1/03/2012.** **R1(B): COPY OF THE LETTER DTD. 3/3/2012.** **R1(C): COPY OF THE G.O.LETTER DTD. 6/.12/2011.** **R1(D): COPY OF THE G.O.(MS) DTD. 1/07/2011.** **R6(A): COPY OF LETTER DTD. 06/12/2011 ISSUED BY THE 2ND RESPONDENT. R6(B): COPY OF LETTER DTD. 01/03/2012 ISSUED BY THE 1ST RESPONDENT. R6(C): COPY OF LETTER DTD. 03/03/2012 ISSUED TO THE 2ND RESPONDENT.** **/TRUE COPY/** **P.A.TO JUDGE** **Kss** ## **A.M. SHAFFIQUE, J** ## **---------------------------------------** ## **W.P.(C). NO. 7906 OF 2012 & 19469 OF 2012** **----------------------------------------** Dated this 10[th] day of June, 2013 ## **JUDGMENT** Petitioners are persons who are included in the rank list furnished by Kerala Public Service Commission with respect of Lower Division Clerk in terms of Ext. P1 notification. The Kerala Water Authority reported vacancies of 142 Lower Division Clerks as per Exts. P3, P4 and P5 in W.P.(C). No. 19469/2012. The qualification prescribed for the post was Degree in any discipline and other specific criteria. 2. Prior to Ext. P3, P4 and P5 issued the minimum qualification for Lower Division Clerks in Kerala Water Authority was pass in SSLC. It was on that basis that Ext. P1 notification was issued by the Kerala Public Service Commission and after conducting the selection procedure the rank list was prepared. W.P.(C). NO. 7906 OF 2012 & 19469 OF 2012 **2** 3. In the meantime Special Rules was replaced by which qualification criteria was also amended and graduation was stipulated as a basic qualification for appointment to the post of Lower Division Clerks. The amendment had come into effect on 01.03.2011. It was subsequent to the amendment that the posts were reported in terms of Exts. P3, P4 and P5. The contention of the petitioners is that in so far as the selection process had been completed and the rank list is prepared on the basis of qualification prescribed in Ext. P1 notification and since the amendment has no retrospective operation, the amended Special Rules will apply only in respect of posts which are reported and for vacancies which are notified subsequently by PSC and a selection process conducted in terms of said amended Rules. 4. Reference is also made to the Division Bench judgments of this Court in **Stalin v. State of Kerala [2006 (1) KLT 493], Kunju Kunju v. State of Kerala [2005 (1) KLT 364]** and a Supreme Court judgment in **P. Mahendran and Others v. State of Karnataka and Others [(1990) 1** W.P.(C). NO. 7906 OF 2012 & 19469 OF 2012 **3** ## **SCC 411]** . 5. The PSC as well as the Kerala Water Authority has filed separate counter affidavit. In the counter affidavit filed by PSC it is stated that after the amendment to the Special Rules no advice could be made in respect of candidates who does not have the qualification as prescribed under the Special Rules. The Kerala Water Authority in their counter affidavit also supports the stand taken by the PSC. 6. The learned Standing Counsel appearing for the PSC also relies upon the Full Bench judgment of this Court in ## **Mohanan v. Director of Homeopathy [2006(3) KLT 641** ## **(F.B.)].** 7. Heard the learned Senior Counsel for the petitioner in W.P.(C). No. 19469/2012 and the learned counsel appearing for the petitioner in W.P.(C). No. 7906/2012 and the learned counsel appearing for the respondents. 8. The short question that requires to be considered in the above writ petition is whether the petitioners have a legal right to call upon PSC to advice them to the vacancies W.P.(C). NO. 7906 OF 2012 & 19469 OF 2012 **4** reported by the Kerala Water Authority in terms of Exts. P3, P4 and P5. The learned Senior Counsel for the petitioner in W.P.(C). No. 19469/2012 seeks support from the judgment of the Supreme Court in **P. Mahendran's** case (supra) and also the Division Bench judgment of this Court in **Kunju Kunju 's** and **Stalin's** case (supra). 9. Having regard to the law laid down by the Full Bench judgment of this Court, I am unable to accept the contentions raised by the petitioners. The Full Bench after considering in detail the impact of the judgments relied upon by the learned counsel for the petitioners opined under in paragraph 21, 23 and 24 is as under:- - “21. It is worth noting that these decisions recognize a right in those persons who have applied pursuant to the selection process initiated prior to the date of coming into force of the Special Rules, for being considered for selection in accordance with the rules in force at that time. By the same coin, an equally enforceable right has to be recognised in those persons who possess the new/amended qualifications as per the Special Rules to get recruitments made in accordance with the new/amended rules, in which they also can compete to the vacancies which have W.P.(C). NO. 7906 OF 2012 & 19469 OF 2012 **5** arisen subsequent to the coming into force of the new/amended rules. Apart from consistency in applying law, failure to concede such right would amount to violation of the fundamental rights of those who have the new/amended qualifications, under Articles 14 and 16 of the Constitution of India. In other words, both the rights should mutually coexist and in that view also our conclusion is perfectly in accord with the constitutional principles which cannot be negated to both sets of people. xxx 23. A contention was also raised before us based on R. 14 of the Kerala Public Services Commission Rules of Procedure. Although, these Rules have not been promulgated in exercise of any rule making power conferred by any statute, by judicial precedents, it has been accepted that these rules have statutory force. R. 14 reads thus: “14. The Commission shall advise candidates for all the vacancies reported and pending before them and the vacancies which may be reported to them for the period during which the ranked lists are kept alive in the order of priority, if any, and in the order of merit subject to the rules of reservation and rotation, wherever they are applicable: Provided that the advice of candidates by the Commission from the ranked lists kept alive under the fifth proviso to R. 13, shall be confined to the vacancies that actually arose during the normal period of validity of the ranked lists under rule 13 and certified to be as such by the W.P.(C). NO. 7906 OF 2012 & 19469 OF 2012 **6** appointing authorities reporting vacancies to the Public Service Commission. Note:- The prolongation under the fifth proviso to rule 13 shall not be deemed to be part of the normal period of validity of the ranked list under rule 13.” The argument is that none of the decisions available on the subject related to recruitment rules based on a rule akin to R. 14. In so far as Rule 14 specifically states that vacancies which may be reported to the PSC during the period of currency of the rank list shall also be filled up from the persons included in the rank list. In fact, in Murugan's case (supra), the learned Single Judge had relied upon this Rule also to come to the conclusion he reached. Counsel also specifically invited our attention to Ext. P6 gazette notification issued for the recruitment, which is the subject matter of O.P. No. 27117/2002, namely, for the post of Pharmacist (Homeo). In that notification, apparently, based on R.14 of the Kerala Public Service Commission Rules of Procedure, it has been specifically laid down that for the vacancies mentioned in the notification and the vacancies which may be reported during the currency of the list, appointments would be made from the list. 24. We do not think that either R.14 of the Kerala Public Service Commission Rules of Procedure or the stipulation in the notification can make any difference to the law laid down by us as above. If such a contention is accepted, we would have to necessarily concede a power on the PSC to postpone the coming W.P.(C). NO. 7906 OF 2012 & 19469 OF 2012 **7** into force of the amended rules promulgated by the Government. In so far as the rule making authority is the Government, the power to fix the date of commencement of the Rules also shall be exclusively with the Government unless the statute otherwise prescribes. When the Government issues notification amending the Rules either with retrospective effect or with effect from the date of commencement of the Rule (which would be the date of commencement of the notification unless the notification itself expressly or by necessary implication stipulates otherwise), the operation of the Rules should commence on that day only and not other date. If the PSC is given the liberty to make advice from the list in force prepared in accordance with the unamended rules in respect of vacancies which arose subsequent to the commencement of the amended rules, necessarily, that would amount to the PSC changing the date of commencement of the amended rules, which cannot be permitted by any stretch of imagination. R.14 of the Kerala Public Service Commission Rules of Procedure also cannot change the date of commencement of the amended Rules promulgated by the Government. Therefore, R. 14 can only be subservient to the powers of the Government to frame or amend Special Rules with or without retrospective affect and cannot be relied upon to enable the PSC to make advise from current rank list for appointment to vacancies which arose subsequent W.P.(C). NO. 7906 OF 2012 & 19469 OF 2012 **8** to the framing or amendment of the Special Rules. Therefore, we do not find any merit in this contention also. Consequently, we have to overrule the decision in C. Murugan & Ors. v. State of Kerala & Ors., reported in 1982 (2) ILR 74 which goes to the effect that even after the amendment of the recruitment rules, advice can be made from the current list even in respect of vacancies which arose subsequent to the amendment of the rules. We do so.” 10. There is a clear finding by the Full Bench that once an amendment regarding qualification and method of appointment 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, the selection of which was initiated prior to the amendment of the rules. 11. The very same position has arisen in the present case also. The vacancies reported in Exts. P3, P4 and P5 had arisen subsequent to the amendment to the Special Rules and therefore the law laid down by the Full Bench squarely applies. W.P.(C). NO. 7906 OF 2012 & 19469 OF 2012 **9** 12. The learned counsel for the petitioners however relied upon the opinion expressed by the Government as well as the Kerala Water Authority calling upon PSC to appoint persons from the rank list prepared and to consider the amendment only with reference to the notification issued by PSC after 01.03.2011. Though such a view is possible, in the light of the Full Bench judgment, I do not think that there will be any justification for the Government to pass executive orders or for that reason the Kerala Water Authority to issue any relaxation of qualification once rules have come into effect. Therefore any clarification issued by the Government by way of executive instructions or by the Managing Director of Kerala Water Authority giving concessions in respect of the qualification in respect of persons presently in the rank list can only be termed as bad in law in view of the law laid down by the Full Bench judgment in **Mohanan's** case (supra). 13. It is also argued that certain persons who did not have the requisite qualification were appointed subsequent W.P.(C). NO. 7906 OF 2012 & 19469 OF 2012 **10** to the amended Rules coming into force. It is clarified by the Kerala Water Authority in the counter affidavit that 7 persons were appointed with the SSLC qualification in respect of vacancies which had arisen prior to the amendment. That being the situation I do not think that the petitioners are entitled for any reliefs in these writ petitions and hence the above writ petitions are dismissed. Sd/- **A.M. SHAFFIQUE JUDGE** DCS