IN THE HIGH COURT OF KERALA AT ERNAKULAM
Chief Justice S.R.Bannurmath and Justice K.M.Joseph
W.P.(C) No. 2021 of 2009
Advocates appearing for the Parties : V.Chitambaresh, M. Pathros Mathai; K.P.Dandapani, K.R.B. Kaimal, P.Nandakumar, M.R.Rajendran Nair
J U D G M E N T
K. M. JOSEPH, J.
1. Several important and interesting questions arise for our consideration in this batch of Writ Petitions coming up by reference by a learned Single Judge, Justice T. R. Ramachandran Nair. What is the effect of the founding fathers providing for seven years experience as an Advocate to be eligible for appointment as a District Judge in Article 233(2)? Does the acceptance of the Report of the Shetty Commission by the Apex Court in the decision in All India Judges’ Association And Others v. Union of India And Others (2002) 4 SCC 247 (hereinafter referred to as the All India Judges case) amount to declaration of law ? What is the impact of the amendment in the Kerala Higher Judicial Service Rules, 1961 (hereinafter referred to as the Rules) prescribing the qualification of minimum age as thirty five and the maximum age as forty five for appointment as a District Judge on the rights of the writ petitioners, who had applied for selection and passed the written test prior to the amendment?
2. The Facts:
The High Court of Kerala issued a Notification dated 16.4.2007 inviting applications for appointment as District Judges. The last date for receipt of applications was fixed as 30.6.2007. The qualifications prescribed, inter alia, are as follows:
Qualifications for appointment:
A candidate for appointment as District Judge from the Bar shall satisfy the following conditions:
(a) He shall be a Citizen of Indian Union.
(b) He shall not have completed 47 years of age on the first day of January, 2007.
(c) He shall be of good character.
(d) He shall be of sound health and active habits and free from any bodily defect or infirmity which renders him unfit for such appointment.
(e) He shall not have more than one wife living unless exempted by the Government on special grounds.
(f) He shall be a practising Advocate and should have so practised for a period of not less than 7 (seven) years.
Note.-(1): Upper age limit shall be raised by five years in the case of candidates belonging to Scheduled Castes or adult members of such Castes and their children when such adult members are converted to other religion or Scheduled Tribes and by three years in the case of candidates belonging to any of the Other Backward Classes.
(2) For relaxation of age limit for other categories of persons, provisions in Rule 10 of the Kerala State and Subordinate Service Rules, 1958 may be referred to. Any one coming within the description in the Rules and who satisfies the other conditions can also apply.
(3) Save as otherwise provided, eligibility shall be determined with reference to the last date fixed for receipt of the applications.”
The petitioners filed applications pursuant to the Notification. The process of selection contemplated under the Notification comprises of a written examination and a viva voce. The written test was held from 27.10.2007 to 29.10.2007. After conduct of the written test, the Rules came to be amended. The amendment with which we are concerned, relates to the prescription of minimum and maximum age. The following is the amendment:
“(d): For clause (b) of sub-rule (2), the following shall be substituted, namely:-
“(b) He shall have attained the age of 35 years and shall not have completed 45 years of age on the first day of January of the year in which applications for appointment are invited:
Provided that the provisions in sub-rule (c) of Rule 10 of the Kerala State and Subordinate Service Rules, 1958 raising the upper age limit in the case of candidates belonging to Scheduled Castes, adult members of Scheduled Castes and their children when such adult members are converted to other religions, Scheduled Tribes and Other Backward Classes shall be applicable to such candidates for appointment under Rule (2) (c)(iii).”
After the substitution, the relevant Rule reads as follows:
“3.(2): A candidate for appointment to category (2) from the Bar shall satisfy the following general conditions, namely.-
x x x x
(b) He shall have attained the age of 35 years and shall not have completed 45 years of age on the first day of January of the year in which applications for appointment are invited.
Provided that the provisions in sub-rule (c) of Rule 10 of the Kerala State and Subordinate Service Rules, 1958 raising the upper age limit in the case of candidates belonging to Scheduled Castes, adult members of Scheduled Castes and their children when such adult members are converted to other religions, Scheduled Tribes and Other Backward Classes shall be applicable to such candidates for appointment under Rule (2)(c)(iii).”
The amendment which came into force “at once”, was published in the Official Gazette on 12.6.2008. Subsequently, the viva voce was held from 1.12.2008 to 12.12.1008.The petitioners (save one) were invited for the interview. The petitioner in W.P. (C).No.2302/09 came to be interviewed pursuant to the Judgment in W.A. No.229/08. It is subsequently that a select list came to be published. However, the complaint of the petitioners is that they stand excluded from selection on the basis of amendment to the Rules prescribing minimum and maximum age as aforesaid. That is to say, except for the petitioner in W.P.(C).No.3543/09, all the other writ petitioners being below thirty five years of age as on 1.1.2007, stand excluded from being considered for appointment. The petitioner in W.P.(C).No.3543/09 stands excluded by virtue of his being over aged in terms of the amended rule.
3. We heard the learned counsel for the writ petitioners, the learned senior counsel appearing on behalf of the High Court of Kerala as also the learned counsel appearing for the contesting parties including the State of Kerala.
4. Shri K. Jaju Babu, learned counsel for the petitioners in W.P.(C).No. 2282/09 would essentially raise two contentions before us. He would submit that the petitioners fulfilled the criteria which were stipulated in the Notification. The only stipulation as to age contained in the Notification as also the Rules was that the candidate should not have crossed forty seven years of age. He would submit that the Notification makes it clear that the question of qualifications and conditions would be judged with reference to the last day prescribed for receipt of applications. The last date was 30.6.2007. The petitioners could not, therefore, be eliminated with reference to the amendment incorporated in the Rules by publication in the Gazette dated 12.6.2008. He would submit that the amendment does not have any retrospective effect. The amendment is purely prospective as is evident from the words indicating that the amendment would come into effect at once. He would, therefore, submit that the amendment, even if it is valid, would not apply in respect of the writ petitioners. He would press into service the principle that once a recruitment process has commenced, the Rules of the game cannot be altered and even if there is an alteration, it will not affect the rights of those who had already applied and the matters must be decided in respect of the applicants with reference to the qualifications and conditions as they prevailed with reference to the relevant day which in this case, is the last day for receipt of the applications. In this regard, he relied on the case law, which we shall advert to.
5. Shri K. Jayakumar, learned counsel appearing for the petitioner in W.P.(C). No.19032/09 would, apart from adopting the contentions of Shri Jaju Babu, contend as follows:
The amendment to the Rules which is impugned by him is ultra vires of Article 233(2) of the Constitution. According to him, the prescription of a minimum age limit of thirty five years would be opposed to the prescription of the eligibility condition of seven years experience as an Advocate. He would submit that subordinate legislation cannot, if it does not square with the constitutional provisions, survive judicial scrutiny. He would submit that the prescription of eligibility to be appointed as a District Judge being only that the candidate should have seven years practice would impliedly exclude the fixation of the minimum age of thirty five years. He would expatiate and submit that if the candidate has seven years of practice and thus fulfills the requirement of Article 233(2), an age limit which is incompatible with the prescription of seven years as the eligibility condition is impermissible. He would contend that without an amendment to Article 233, the amendment was illegal.
6. Shri M. Pathros Mathai, learned senior counsel appearing for the petitioner in W.P.(C).No.14027/09, however, would contend that the petitioner in his case, in fact, complies with the condition that the candidate should be thirty five years of age. His argument is that in accepting the recommendations of the Shetty Commission, all that the Supreme Court has decided was that the candidate should have a minimum age of thirty five years to be appointed as District Judge. He does not dispute the fact that the petitioner was not thirty five years of age as on 1.1.2007. But, he would contend that there would be no transgression of the recommendation which stood accepted by the Apex Court that the candidate should be thirty five years of age when he is appointed as a District Judge, in the case of the petitioner. It is the petitioner’s case that he attained thirty five years of age before the cut off date, namely the last day for receipt of applications. He would also submit that the amendment in the Rule is only prospective and the amendment could not adversely affect the fate of the petitioner. The decision in Dipitimayee Parida v. State of Orissa Others 2008 (10) SCC 687 is an authority for the proposition that the question of qualification or extra qualification should be appreciated with reference to the last date for filing of the applications. It is in the same vein, that the decision of the Apex Court in Ashok Kumar Sonkar v. Union of India Others (2007) 4 SCC 54 was rendered. Shri M. Pathros Mathai also relied on the decision in Subhash Chand Jain v. Ist Additional District And Sessions Judge, Saharanpur And Others AIR 1989 SC 1070. Therein, the Court took the view that the employees who had been appointed before 1968 were entitled to be governed in the matter of seniority on the basis of the length of service and the Rule introduced in 1968 by which confirmation was made, the basis to determine that inter se seniority could not affect their rights. Thus, the proposition canvassed is that a vested right cannot be taken away retrospectively. In the same vein, he relied on the decision of the Apex Court in R. S. Ajara And Others v. State of Gujarat and Others 1997 3 SCC 641.
7. Shri S. Sreekumar, learned counsel appearing for the petitioner in W.P.(C). No.2302/09 would also essentially adopt the contentions of Shri K. Jaju Babu. He would further contend that in the facts of this case, the respondents are estopped from invoking the amendment against the petitioner. He would submit that the petitioner had fared exceedingly well in the examination, but was not called for the interview. The reason given was that though the petitioner was practising as an Advocate on the relevant day, subsequently he came to be selected as a Munsiff. He approached this Court by filing W.P. (C).No.34161/08. Though the learned Single Judge dismissed the Writ Petition, a Division Bench of this Court allowed his Writ Appeal in the decision in Muhammed Raees v. High Court of Kerala 2008 (4) KLT 916. He would draw our attention to the aforesaid Judgment. He would contend that the amendment came into force on 12.6.2008. It was certainly open to the respondents to have set up the amendment against him in the earlier Writ Petition, he contends. They failed to do so. The plea is, therefore, barred by res judicata or constructive res judicata, he contends. The High Court allowed him to participate in the interview. He would point out that the petitioner has secured 424 marks and he stood first. He would submit that in such circumstances, the official respondents are estopped from invoking the amendment to the Rule to defeat his cause. He would submit that the petitioner by mere reason of being below thirtyfive years of age should not be eliminated, having regard to the remarkable performance that he had shown.
8. Shri T. Sethumadhavan, learned counsel appearing for the petitioner in W.P.(C). No.3543/09 would contend that the petitioner in this case was not over-aged, going by the Rule as it stood prior to the amendment. He would also contend that the amendment cannot be invoked to defeat his rights as it stood crystallized on the date on which he applied. He would further point out that under Rule 10(c) of the KS SSR which is applicable, he was entitled to relaxation of three years being a member of the OBC. He would also point out that the petitioner will not get another chance and this is the last chance, which he has, to be considered for the post of District Judge. He does not dispute that the petitioner was forty nine years of age as on 1.1.2007.
9. Shri Jacob P. Alex, learned counsel for the petitioner in W.P.(C).No.4810/09 adopted the contentions of Shri Jaju Babu.
10. Shri K. R. B. Kaimal, learned senior counsel appearing for the High Court of Kerala would address the following contentions: Entry (41) of List II of the VIIth Schedule to the Constitution provides for legislative power with the State Legislature as follows:
“41. State Public Services; State Public Service Commission.”
Prior to the enactment of the Kerala Public Services Act, 1968, Article 309 of the Constitution provided for power with the State to frame law governing the conditions of service of a District Judge also and in the absence of a law made by the State Legislature, it was open to the Government to frame Rules. It was accordingly that the Rules have been framed in the year 1961. Subsequently, the Kerala Public Services Act, 1968 came to be enacted. The Act, inter alia, provides power with the Government of Kerala to frame Rules. The Judicial Service is one of the Services mentioned in the Act. Thus, he would submit that the Government of Kerala, after 1968 had power to frame Rules under the Kerala Public Services Act, 1968. He would submit that the Shetty Commission specifically recommended the prescription of minimum age of thirty five for appointment as District Judge, as much as it recommended the maximum age of forty five for the said post. The matter came up before the Apex Court and the Apex Court accepted the recommendations, except certain recommendations which were either not accepted or accepted in the modified form. As far as prescription of minimum age and maximum age to the post of District Judge was concerned, he would submit that it cannot be in the region of dispute that the recommendations stood accepted. He would submit that the Judgment of the Apex ourt was declaratory in nature. In other words, he would submit that after the Judgment of the Apex Court, unless the person is between the age of thirty five and forty five, he cannot be appointed as District Judge. It may be true, he contends, that on account of some delay in passing the amendment, the formal amendment to the Rules was gazetted only on 12.6.2008. He would submit that in view of the Judgment of the Apex Court, the petitioners cannot have any right to seek the relief they have sought. No doubt, he does not have quarrel with the proposition enunciated in a catena of decisions of the Supreme Court relating to the effect of an amendment made during the course of a selection process.
11. Shri Elvin Peter, learned counsel appearing on behalf of respondent No. 12 in W.P.(C).No. 2282/09 would raise the following submissions:
He would submit that the principle enunciated in the decisions of the Apex Court relied on by the petitioners may not apply to the facts of this case. He would submit that this Court is concerned in these cases with selection to the post of District Judge. The selection is sought to be made by direct recruitment. The appointees would be holding upon appointment, the post of District Judge, an entry post. He would contend that Article 233 of the Constitution specifically deals with the matter of appointment to the post of District Judge. Article 233(1) provides for appointment by the Government in consultation with the High Court. He would submit that in such circumstances, in view of the Judgment of the Apex Court by which the recommendations of the Shetty Commission regarding the minimum and maximum age stood accepted and what is more, the Government of Kerala stood directed to implement the same with the outer time limit of 30.9.2002 by which compliance reports were to be filed by the States as well as another, being fixed, if the High Court and the Government of Kerala decided that the minimum age should be thirty five and the maximum age should be forty five, an inroad could not be made into the same under any Rule framed by the Government. In this context, he relied on the Judgment of the Apex Court in State of Bihar And Another v. Bal Mukund Sah And Others (2000) 4 SCC 640. In the same, the Apex Court was dealing with the law made by the Legislature of the State of Bihar by which it provided for reservation for appointment to the post of District Judge. There was no consultation with the High Court. We will deal with it in detail later on. He would submit that in view of the Judgment in the All India judges’ case, these Writ Petitions are not maintainable. Shri Elvin Peter also would submit that there is no merit in the contention based on Article 233(2) of the Constitution, namely the complaint that the prescription of the age limit is ultra vires the eligibility condition declared in the same. Learned counsel relied on the decision of this Court in Sreekumar v. High Court of Kerala 1995 (2) KLT 88. He would further contend that what the petitioners are seeking in these cases, is a writ of mandamus. He would point out that writ of mandamus may not be issued in the light of the decision of the Apex Court in the All India Judges’ case (2002 (4) SCC 247). In this regard, he relied on the decision of the Apex Court in Delhi Development Authority v. Skipper Construction Co. (P) Ltd. And Another (1996) 4 SCC 622.
12. Shri P. C. Sasidharan, learned counsel appearing on behalf of the 6th and 26th respondents in W.P.(C). No. 2282/09 would adopt the contentions raised by the respondents.He would further rely on the Judgment of a learned Single Judge of this Court in Ajith v. State of Kerala 2007 (2) KLT 1044. Therein, the learned Single Judge was concerned with the appointment to the post of Munsiff. The complaint raised was that there was no consultation as contemplated in law with the High Court. The learned Single Judge found merit in the contention. However, the learned Single Judge took note of the decision of the Apex Court in the All India Judges’ case (supra) and proceeded to uphold the impugned Rule. Shri P.C. Sasidharan would also in the alternative, advance the following argument:
He would submit that even accepting the case of the petitioners, the principle regarding an amendment having prospective effect not adversely affecting the rights of those who have already applied, could not be pressed into service in respect of vacancies which arose after the date of the amendment. This principle is accepted by a Full Bench of this court in Mohanan v. Director of Homeopathy 2006 (3) KLT 641 FB, following the decision of the Apex Court. He would also submit that no relief may be granted in view of the developments culminating in the Judgment of the Apex Court in the All India Judges’ case (supra). The delay in amending the Rules on the part of the Constitutional Authorities, he submitted, could not be considered as of moment. He would submit that any appointment of the petitioners in the circumstances would be vulnerable and can be questioned in appropriately instituted proceedings.
13. Shri A. Mohamed Mustaque, learned counsel appearing for the fifth respondent in W.P.(C).No.2282/09 would make the following submissions:
He would contend that a distinction must be drawn between cases where a party has a vested right and cases where the party has accrued right. According to him, all that has happened is that pursuant to the Notification issued in the year 2007, an examination was held. Even prior to the date of the interview, the amendment in question was enacted vetoing any appointment unless the candidate fulfills the prescription as to the minimum and maximum age. He would submit that it is not a case where either any appointment has taken place or even the select list had been prepared in pursuance of the Notification. He would contend, therefore, that the principle which was pressed into service by the petitioners could not be applied in the facts situation present in these cases. He would further contend that in the facts of these cases, what the Court should enquire is whether it would be arbitrary for the official respondents to deny the right to be considered for appointment, in view of the indisputable fact that following the recommendation of the High Power Judicial Commission, the Apex Court itself accepted the prescription of minimum and maximum age. He would contend that it may be true that pursuant to the Notification, the candidates may have applied. They may have sat for the examination. But, they stood overtaken by the amendment to the Rule. They did not have any accrued right to appointment. In such circumstances, he contended that if the Court did not find any irrationality or arbitrariness in the actual decisions and the reasons for the decision to prescribe the minimum and maximum age, it may not be open to the writ petitioners to impugn their elimination. It is pointed out that the petitioners do not question the rationale of the amendment. He pointed out that there is a background to the lis and it essentially consisted of the felt necessity to vitalise the judiciary and the perceived distinction between the civil service on the one hand and judiciary on the other.
14. Shri A. Mohamed Mustaque would contend further that what the petitioners have is a legitimate expectation. He would point out that a legitimate expectation can be defeated, if there is a change in policy. (SeeMadras City Wine Merchants’ Association And Another v. State of T.N. And Another (1994) 5 SCC 509, Punjab Communications Ltd. v. Union of India and Others (1999) 4 SCC 727 and State of M.P. And Others v. Raghuveer Singh Yadav And Others (1994) 6 SCC 151 and Kuldeep Singh v. Govt. of NCT of Delhi (2006) 5 SCC 702. In the last decision, the Court dealing with the question relating to the grant of licence to vend liquor, took the view that there can be no vested right with the applicant on the basis of the applicant having made huge investments. He would, therefore, contend that when what existed is a legitimate expectation and there is a change of policy, it is to be tested on the anvil of Articles 14 and 16. He would further contend that Article 233 of the Constitution enables the High Court to recommend persons based on the policy which in turn, is based on the decision of the Apex Court. It is the prerogative power of the High Court which is available under Article 233, he contends. If it were a matter affecting selection process, the time factor may be relevant, he contends. But, it is not so. He further contended that the concern of the Apex Court for preserving independence in judiciary has been evinced by it from 1990 onwards, in a series of decisions. Referring to the decision of the Apex Court in Indra Sawhney v. Union of India And Others (2000) 1 SCC 168, he would contend that a mandamus cannot be issued to override the direction of the Supreme Court. He further relied on the decision of the Apex Court in Dr. Chanchal Goyal (Mrs). v. State of Rajasthan 2003 (3) SCC 485 and Jitendra Kumar And Others v. State of Haryana And Another (2008) 2 SCC 161. The last was a case where the question was of legitimate expectation. There was a change of government. The new Government decided not to act on the select list which had been published by the previous Government. The decision was to not appoint for valid reasons. Then, he relied on the decision of the Apex Court in High Court of Judicature at Bombay through Registrar And Another v. Brij Mohan Gupta (Dead) through Lrs. And Another (2003) 2 SCC 390.We shall notice the said case in greater detail, as it may be crucial for a proper decision in this matter. Shri R.K. Muraleedharan, learned counsel appearing for the 14th respondent in W.P.(C). No.2282/09 adopted the contentions of the respondents.
15. Shri Nandakumar, learned Government Pleader made the following submissions:
He contended that in some cases, Rules were not challenged and in W.P.(C).No.3543/09, the prayer is for a writ of certiorari which is misconceived. (Subsequently proper prayers stand incorporated by amendment). He submitted that the Government could not make a Rule governing the selection to the post of District Judge by itself. The proposal from the High Court came on 26.8.2006 and, therefore, he would contend that the intention of the High Court was to amend the Rule fixing the age limit in tune with the Supreme Court Judgment prior to the Notification. No doubt, he would take the stand that the Judgment of the Apex Court in the All India Judges’ case (supra) was not a completely declaratory Judgment. But, he would submit that it is binding on the State and the High Court. He referred to R.L. Bansal And Others v. Union of India And Others ((1992) 2 Suppl. SCC 318) and Karnataka Bank Limited v. State of A.P. Others ((2008) (2) SCC 254) for the proposition that candidates have no legal right to be appointed. He also relied on Mani Subrat Jain And Others v. State of Haryana And Others (1977) 1 SCC 486 and Shankarsan Dash v. Union of India (1991) 3 SCC 47 in this regard. As regards the validity of the Rule is concerned, he would submit that no ground has been made out to invalidate the Rule. He said that none of the vitiating factors as laid down by a Division Bench of this Court to unsettle a Rule were present in this case. (See Pankajaksy Others v. George Mathew Others (1987 (2) KLT 723).
16. Shri K. P. Dandapani, learned senior counsel for respondents 4 and 16 in W.P.(C). No.2021/09 and for the same respondents in the connected cases, adopted the contentions of the other respondents. In addition, he contended that the amendment in question which was brought on 09.6.2008 was a curatory amendment, and it would have effect in respect of the petitioners also. In this regard, he relied on the decision of the Apex Court in S.S. Grewal v. State of Punjab And Others (1993 Suppl. (3) SCC 234), S. B. Bhattacharjee v. S. D. Majumdar And Others (2007) 10 SCC 513 Paragraph 36 and Renganatha Pai v. DIG of Police (1994 (2) KLT 366).
17. Shri S. Sreekumar, learned counsel for the petitioner, in reply, would refer us to the decision in Comptroller And Auditor General of India, Gian Prakash, New Delhi And Another v. K. S. Jagannathan And Another ((1986) 2 SCC 679) in regard to the scope of a writ of mandamus. He also relied on the decision in Ashok Kumar Sonkar v. Union of India And Others ((2007) (4) SCC 54) which related to the question of cut off date.
18. Shri K. Jayakumar, in his reply, submits that the principle enunciated in K. Manjusree v. State of Andhra Pradesh And Another (2008) 3 SCC 512 has been accepted as laying down the correct law in Hemani Malhotra v. High Court of Delhi (2008 (7) SCC 11. He also sought to draw support from certain recent decisions of the Apex Court in Amlan Jyoti Borooah v. State of Assam And Others ((2009) 3 SCC 227), and Mohd. Sohrab Khan v. Aligarh Muslim University And Others ((2009) 4 SCC 555). He would contend that the decision of the Division Bench of this Court in Sahadeva Valigan v. State of Kerala (1988 (1) KLT 202) was not applicable to the facts and that was a case where initially the power of selection of Munsiff’s was lodged with the Public Service Commission and a conscious decision was taken to vest the power with the High Court. He would submit that it may be different, if it was decided not to proceed with the Notification issued in 2007, to cancel the same and to proceed afresh in which case the amendment in question may apply. He would contend that the argument of the respondent based on the need for maintaining independence in judiciary equally involved the need for the judiciary to follow the rule of law and he invoked the principle established by the Apex Court in Maharashtra State Judges’ Association And Others v. Registrar General, High Court of Judicature At Bombay and Another ((2009) 1 SCC 569) and contended that the Apex Court itself contemplated the need for an amendment and, therefore, there is no merit in the argument of the Apex Court decision in the matter operating as an amendment of the Rule itself. Reliance was placed on the decision of the Apex Court in Civil Appeal No.1867/2006.
19. Shri K. Jaju Babu, learned counsel, would apart from reiterating the contentions, submit that the amendment of the Rule being purely prospective, it could not interfere with the destiny of the applicants pursuant to the Notification of the year 2007. Learned counsel appearing in W.P.(C).No.14027/09 would reiterate that the petitioner in his case had completed thirty five years of age prior to the last date for receipt of applications as per the Notification and accepting that the amendment was having retro-active operation, in the wake of the decision of the Apex Court in so far as the Apex Court had not stipulated the time at which the candidate must fulfill the requirement of minimum age, he would submit that it is a principle incorporated in the Notification also, namely the fulfillment of the conditions must be with reference to the last date of receipt of applications, which binds. He also points out that in regard to the vacancies which arose prior to the amendment, it is the Rule in force prior to the amendment which must hold good. In this context, he relied on the decision of the Apex Court in Y.V. Rangiah And Others v. J. Sreenivasa Rao (1983) 3 SCC 284 at paragraph 9).Of course, he would submit that if the Court accepts the principle that the amendment has no effect on the petitioners, the petitioner is entitled to succeed on that score. In reply to the aforesaid submissions, Shri K.R. B. Kaimal would submit that the Clause in the Notification provided that the last date shall be relevant save as otherwise provided. The relevance of the first day of the year is justified with reference to the Public Services (Date for Determination of Age for Eligibility For Appointment) Rules, 1977, he contended. He would submit that even the Notification as issued, contemplated the fixation of age with reference to 1.1.2007 in keeping with the said Rules. However, Shri P. B. Suresh Kumar would submit that the said Rules cannot apply as the Rules providing for selection to the post of District Judge did not contemplate any minimum age and, therefore, the question of the Rules relied on by Shri K. R. B. Kaimal operating on the Rules, would not arise.
20. Whether the Amended Rule is valid And Whether it is ultra vires Article 233(2) of the Constitution ?
Article 233 reads as follows:
“233. Appointment of District Judges.-(1) Appointments of persons to be, and the posting and promotion of, District Judges in any State shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such State.
(2) A person not already in the service of the Union or of the State shall only be eligible to be appointed as District Judge, if he has been for not less than seven years an Advocate or a Pleader and is recommended by the High Court for appointment.”
As far as the contention that the prescription of age limit is ultra vires of Article 233(2), we are of the view that there is no merit in the contention. Article 233(2) undoubtedly provides that in order that a person be considered eligible, he should have seven years of experience as an Advocate. It is quite clear that the founding fathers only intended to incorporate the requirement as to practice, i.e. the number of years of standing that an Advocate should possess to render him eligible. We find it inconceivable that the founding fathers would have considered it not being open to the appropriate authority to prescribe qualifications which do not directly conflict with the constitutional mandate. Take for instance: the prescription of good character as a qualification. The prescription of good character is an objective and universal prescription for appointments in all situations. In fact, the possession of good character would be of the utmost importance for a person who is to hold the judicial post. We find, in fact, that good character is prescribed in the Rules as one of the qualifications for appointment as District Judge. Can it be said that prescription of character by the appropriate authority in consultation with the High Court is liable to be found incompatible with the dictate of Article 233(2) ? We certainly think not. It is to be further noted that it is not as if by the prescription of the age limit, the law giver is providing for a qualification contrary to what is provided in Article 233(2) of the Constitution. If for instance, the Rule was amended to provide for a qualifying period of less than seven years, it would be in the teeth of the constitutional embargo. Apart from the fact that this is an amendment which is necessitated by reason of the acceptance of the Shetty Commission in the All India Judges’ case by the Apex Court, on an interpretation of the provision, we do not see any warrant for the contention that Article 233(2) will not brook any prescription as to age as is sought to be done. The legislative power is undoubtedly present. In fact, if we were to accept the case of the petitioners, then it would rob the legislative body of power to provide for many of the other indispensable qualifications for appointment to a post of vital importance, namely the post of a District Judge. We do not think that an amendment to Article 233(2) was indispensable to sustain the validity of the amended Rule. We do not think that the petitioners have made out any case to declare the amendment to the Rule as bad. Certainly, the amendment which is based on the recommendation of the Shetty Commission and accepted by the Apex Court and also recommended by the High Court, cannot be found to be irrational or arbitrary in any manner. We also do not find any merit in the contention that it is ultra vires Article 233 of the Constitution.
21. Whether the Amendment is curative, clarificatory and declaratory in nature and hence retrospective ?
We are of the view that the amendment cannot be considered to be declaratory or curatory or clarificatory. The Rules as they stood at the time of issuance of the Notification did not provide for any minimum or maximum age. All that it declared was that the candidate should not have crossed fortyseven years of age. Thus, any person who was below fortyseven years of age was considered eligible as per the Rules, to be selected and appointed as a District Judge. About this, we cannot hold that the matter could be said to be in the region of any doubt. There was no room for any ambiguity. There was no omission in the Rules as they stood. It is no doubt true that the High Court and the State of Kerala were bound to implement the prescription of age limit. But, the delay in amending the Rules and finally deciding to amend the Rules without retrospective effect only expressly (the Rules as amended were to come into force at once, spelling out prospectivity alone), cannot have the effect of the amendment bearing operation into the past.
22. In S.S. Grewal v. State of Punjab And Others (1993 Supp.(3) SCC 234), the Apex Court was dealing with the question relating to inter se seniority between direct recruits drawn from general quota and the reserve quota as also the question of sub-reservation and sub-roster. Letter dated April 8, 1980 gave certain clarifications on certain doubts created by some Departments in the matter of implementation of the instructions contained in an earlier letter. It is in this context that the Court took the view that the clarifications contained in the later letter must be read as part of the instructions contained in the earlier letter and in this context, it was, inter alia, held as follows:
“In this context, it may be stated that according to the principles of statutory construction, a Statute which is explanatory or clarificatory of the earlier enactment is usually held to be retrospective (See Craies on Statute Law, 7th Edition, Page 58.)”
In S.B. Bhattacharjee v. S. D. Majumdar And Others ((2007) 10 SCC 513), the Court was dealing with the interpretation of an Office Memorandum relating to the manner in which the ACRs are to be considered for promotion to the post of Executive Engineer. Government issued a clarification pending the Writ Petition filed before the Court regarding the said provision. The Court after repelling the contention that the clarification was in the teeth of the illustration given in the Office Memorandum and after adverting to S.S. Grewal’s case (supra), held that the clarification being explanatory and/or clarificatory, will have a retrospective effect. In Devadas v. Dy. Labour Commissioner (1995 (2) KLT 366), the facts were as follows:
This Court had held that a Secretary or Branch Manager of a Co-operative Society will not be entitled to claim subsistence allowance under the Payment of Subsistence Allowance Act. A proviso was added in rule 198 (6) of the Co- operative Societies Rules, to the effect that an employee not coming under the purview of the Payment of Subsistence Allowance Act, 1972 shall be entitled to subsistence allowance at the rate admissible to State Government employees under the Kerala Service Rules. The proviso was introduced on 26.6.1990. The contention of the employee based on the said proviso was sought to be overcome by pointing out that the claim was for various periods prior to the introduction of the proviso. The Court held, inter alia, as follows:
“4. The newly added proviso was introduced into the Rules in exercise of the powers conferred by S. 109 of the Co-operative Societies Act read with S. 80(3) thereof. The Explanatory Note states that as per the provisions in the Kerala Payment of Subsistence Act, 1972 an employee in a managerial cadre or an administrative capacity is not entitled to subsistence allowance and so, the proposal is to amend the rules so as to enable payment of subsistence allowance to an employee not covered by the above said Act. As the amendment has been introduced in the wake of the decisions of this Court holding that Secretary or Branch Manager of a Co- operative Society will not be entitled to claim subsistence allowance as provided under the Payment of Subsistence Allowance Act, it can only be construed as retrospective as it is declaratory in nature. Presumption against retrospective operation is not applicable to declaratory statutes. As the proviso has been introduced to the Rules with a view to declare that an employee in a managerial cadre or having administrative capacity is also entitled to subsistence allowance under the Payment of Subsistence Allowance Act, 1972, its effect is certainly declaratory and so cannot be but retrospective. It cannot be doubted that the introduction of the newly added proviso was really for removal of doubts and also for a definite and positive clarification. It is settled law that if a statute is curative or merely declaratory of the previous law retrospective operation is generally intended. (See Channan Singh v. Jai Kour AIR 1970 SC 349 para.5). As the proviso has been added to get over the difficulty encountered by an employee in a managerial cadre or administrative capacity of the society being not entitled to subsistence allowance under the Payment of Subsistence Allowance Act and as it can be construed only as declaratory in nature, we hold that it has retrospective operation.”
23. We have already noted that the extant Rules prevailing on the date of the Notification as also the Notification clearly provided for restriction as to age only by declaring that the candidate should not exceed forty seven years of age. In Shri Chaman Singh And Another v. Srimathi Jaikaur ((1969) 2 SCC 429), the Court considered whether the Punjab Pre-emption Amendment Act 1964 was clarificatory or declaratory. The Suit was based on the right of pre-emption. The Suit was brought by a daughter of one Santa Singh who died leaving behind him a widow who sold certain lands. The respondent/plaintiff was daughter from another wife. The Court, inter alia, held in paragraphs 5 and 6 as follows:
“5. It appears to us that the Amendment Act of 1964 was merely of a clarificatory or declaratory nature. Even in the absence of the words which were inserted by the Amendment Act of 1964 in Section 15(2)(b), the only possible interpretation and meaning of the words “in the son or daughter of such female” could have reference to and cover the son or daughter of the husband of the female.
6. If the above discussion is kept in view, there is no difficulty in attributing a retroactive intention to the Legislature when the Amendment Act of 1964 was enacted. It is well settled that if a statute is curative or merely declares the previous law retroactive operation would be more rightly ascribed to it than the legislation which may prejudicially affect past rights and transactions.”
In Statute Law by Craies, which has been approved in Central Bank of India v. Their Workmen (AIR 1960 SC 12), the learned Author would state as follows:
“For modern purposes, a declaratory Act may be defined as an Act to remove doubts existing as to the common law, or the meaning or effect of any statute. Such Acts are usually held to be retrospective.”
24. The unamended Rules as also the terms of the Notification created legal rights in favour of all those who were within the age limit of fortyseven years, to apply and to be considered for selection. There can be no room for any ambiguity, nor can there be any room for invoking the principle of the amendment being a declaratory Statute.
25. Whether there is an axiomatic amendment of the statutory Rule by virtue of the decision of the Apex Court in the Judges’ case (supra) ? Whether the aforesaid Judgment amounts to a declaration of law ? The amendment of a statutory rule is a legislative exercise.No doubt, the legislative power is normally exercised by the Legislative Bodies. But, legislative power is also exercised by the other Organs of the State. The Rules were originally framed under the provisions of Article 309 of the Constitution. On the enactment of the Kerala Public Services Act, 1968, the source of legislative power can be said to be the said enactment. It is professedly under the said Act that the amendment in question has been enacted. The proposal for the amendment emanating from the High Court in the year 2006, for some reason, the matter did not receive the immediate attention it truly deserved and it is only in the middle of 2008, as already noticed, that the amendment came into force. Thus, both the High Court and the Government are privy to the Rule making process in amending the Rule in question.
26. The Shetty Commission undoubtedly did recommend the prescription of a minimum age for appointment as a District Judge at thirtyfive years. So also, it recommended the maximum age of fortyfive years. Nobody can have a case that the mere recommendation of the Shetty Commission had the effect of amending the Statutory Rule. Undoubtedly, the Supreme Court must be treated as having accepted the recommendation of the Shetty Commission as regards the prescription of the minimum and the maximum age for the post of District Judge. A perusal of the Judgment in the All India Judges’ case (supra), would make it clear that the Apex Court has directed the implementation of the recommendations. Equally, the Apex Court had in its contemplation, amendment to the Rules wherever they were necessary. A perusal of paragraph 38 is necessary in this regard. It reads as follows:
“38. We are aware that it will become necessary for service and other rules to be amended so as to implement this judgment.
Firstly, with regard to the pay scales, the Shetty Commission has approved the pay scales with effect from 1-1-1996 but has directed the same to be paid with effect from 1-7-1996. The pay scales as so approved by us are with effect from 1-7-1996. However, it will take some time for the States to make necessary financial arrangements for the implementation of the revised pay scales. The Judicial Officers shall be paid the salary in the revised pay scales as approved by this Court with effect from 1-7-2002. The arrears of salary between 1-7-1996to 30-6-2002, will either be paid in cash or the States may make the payment by crediting the same in the provident fund account of the respective Judicial Officers. Further more, the payment by credit or otherwise should be spread over between the years 1-7-1996 to 30-6-2002 so as to minimise the income tax liability which may be payable thereon. In calculating the arrears, the Government will, of course, take into account the interim relief which had been granted and drawn by the Judicial officers. The amount to be credited in the provident fund account would also be after deducting the income tax payable.”
The Apex Court has not declared that from the date of the Judgment, the minimum age of a person to be appointed as a District Judge will be thirty five years of age or that the maximum age cannot exceed fortyfive years. It is not directed that the age limit as aforesaid shall come into force from the date of the Judgment. It is also not directed that the age limits recommended by the Shetty Commission will come into force on a specified future date. No doubt, it has in paragraph 39 directed as follows:
“39. The States as well as the Union of India shall submit their compliance report by 30-9-2002. Case be listed thereafter for further orders.”
27. It is necessary also to advert to certain decisions in this context. In High Court of Judicature at Bombay v. Brij Mohan Gupta (Dead) through Lrs. and Another (2003) 2 SCC 390, relied on by Shri A. Mohamed Mustaque, the question which arose for consideration arose as follows:
The appellant was a member of the Judicial Service. The Statutory Rule provided that a direct recruit could continue so as to have a minimum service of ten years so as to draw pension. Of course, there was an outer limit of sixty years for such continuance. The Apex Court had in its decision directed that the District Judges could continue till they attain the age of sixty years. However, it was hedged in with the limitation that the High Court was to screen such candidates for the purpose of deciding as to whether they could be permitted to continue till they attain the age of sixty years. Efficiency, integrity and other aspects were to be looked into. The High Court found that the appellant should not be permitted to continue. It was in this context that the Apex Court proceeded to hold as follows:
“11. In our view, the exercise of setting up a committee by the Chief Justice, the recommendation made by the Committee and also finally the administrative order passed by the High Court, were strictly in terms of Judges’ case I and Judges’ case II. In fact, by virtue of Judges’ case I and Judges’ case II, Rule 10(3)(c) stood subrogated. We are, therefore, of the view that the judgment under challenge is not in conformity with the aforesaid decisions and is liable to be set aside.”
In this regard, we must at once notice what the Apex Court had decided and directed in All India Judges’ Association v. Union of India ((1993) 4 SCC 288). It is relevant to extract paragraphs 30 and 31 which we do as follows:
“30. There is, however, one aspect we should emphasise here. To that extent, the direction contained in the main judgment under review shall stand modified. The benefit of the increase of the retirement age to 60 years, shall not be available automatically to all Judicial Officers irrespective of their past record of service and evidence of their continued utility to the judicial system. The benefit will be available to those who, in the opinion of the respective High Courts, have a potential for continued useful service. It is not intended as a windfall for the indolent, the infirm and those of doubtful integrity, reputation and utility. The potential for continued utility shall be assessed and evaluated by appropriate Committees of Judges of the respective High Courts constituted and headed by the Chief Justices of the High Courts and the evaluation shall be made on the basis of theJudicial Officer’s past record of service, character rolls, equality of judgments and other relevant matters.
31. The High Court should undertake and complete the exercise in case of Officers about to attain the age of 58 years well within time by following the procedure for compulsory retirement as laid down in the respective Service Rules applicable to the judicial Officers. Those who will not be found fit and eligible by this standard should not be given the benefit of the higher retirement age and should be compulsorily retired at the age of 58 48 by following the said procedure for compulsory retirement. The exercise should be undertaken before the attainment of the age of 58 years even in cases where earlier the age of superannuation was less than 58 years. It is necessary to make it clear that this assessment is for the purpose of finding out the suitability of the concerned Officers for the entitlement of the benefit of the increased age of superannuation from 58 years to 60 years. it is in addition to the assessment to be undertaken for compulsory retirement and the compulsory retirement at the earlier stage/s under the respective Service Rules.”
A perusal of paragraphs 30 and 31 would make it clear that the Apex Court clearly had given unambiguous and specific directions. To the extent that the Statutory Rule did not square with the aforesaid directions, it was clear that the Rule had died a natural death.
28. Now, we would turn to the decision which is brought to our notice by Shri K. Jayakumar, reported in Maharashtra State Judges’ Association And Others v. Registrar General, High Court of Judicature at Bombay And Another ((2009) 1 SCC 569). It is at once necessary to refer to paragraph 24 and extract the same as follows:
“24. Shetty Commission, as a corollary to its pay scale recommendation, recommended that there should be only three cadres:District Judges, Civil Judge (Senior Division) and Civil Judge (Junior Division), and multiple categories should be avoided. But, the recommendation made in the report dated11-11-1999 was not binding, until it was accepted by this Court and rules were framed in terms of it. The said recommendation was accepted in all India Judges’ Assn.(III) by judgment dated 21-3-2002. By the said order, this Court granted time up to 31-3-2003 to implement the said recommendations. Until the recommendation was accepted and rules were framed, the integration/caderisation was a nebulous concept inapplicable of being claimed or enforced as a right.”
It is also necessary to bear in mind at this juncture paragraph 38 of the All India Judges’ case (supra), which we have already extracted. Therefore, the aforesaid view taken by the Apex Court does appear to clearly probabilise and reinforce the case of the petitioners that the Apex Court itself contemplated appropriate amendments to the Statutory Rules to breathe life into certain recommendations made by the Shetty Commission which it had accepted. In other words, in the absence of any specific directions indicating that the Apex Court intended that the prescription of age limits came into force without anything more, to be done by the legislative body, we are of the firm view that the decision of the Apex Court did not amount to an amendment of the Statutory Rule. No doubt, the Court accepted the recommendation and directed the implementation of the same. But, we are of the view that the Judgment of the Apex Court did not amount to a declaration of law in the sense that the Court did not intend that its acceptance of the restriction as to age contained in the Shetty Commission Report is to be effective without an amendment to the Rules, or that it was to operate from the date of the Judgment or from any specified future date. The fact that no such perception was entertained either by the High Court or the State Government, is clear from two circumstances:
In the first place, the Notification was issued by the High Court in the year 2007, without prescribing the minimum or maximum age limit as was contained in the Shetty Commission and was accepted by the Supreme Court. The prescription was strictly in tune with the Rules as they stood prior to the amendment in the year 2008. If the Rules had stood amended, by virtue of the decision of the Apex Court in the All India Judges’ case, certainly, such an indication would have been reflected in the Notification. Still further, the fact of an amendment actually being carried out to the Rules to effectuate the decision of the Apex Court and bringing it into force prospectively only, indicates that the contemplation of both the High Court and the State Government was that an amendment was inevitable. We cannot also overlook the argument of the learned counsel for the petitioners that if the Judgment of the Apex Court must be understood as having amended the Rules, every selection made subsequent to it would have to satisfy every aspect which was recommended by the Shetty Commission and which was accepted by the Apex Court.
29. Finding on the Contentions of Shri P.C. Sasidharan, learned counsel for the party respondents:
We are not impressed by the contention of Shri P.C. Sasidharan on the basis of the decision of the learned Single Judge in Ajith v. State of Kerala 2007 (2) KLT 1044. Therein, the learned Single Judge held, inter alia, as follows:
“39. By the directions in All India Judges’ Association 2002, the State Governments and the High Courts stood directed to amend their Rules. The constitutional support for those directions emanate, particularly, out of Arts. 32 and 141 of the Constitution. Along with that, those directions get the plenary power of the Apex Court, supported by the law laid in All India Judges’ Association 1993 regarding the scope and authority of the Apex Court to issue directions commanding the making
53 of the Rules as dictated by the Apex Court, in so far as it relates to the field of judiciary. Therefore, notwithstanding the procedure provided for in Art. 234, the State Government and the High Courts were obliged by the directions of the Apex Court to have the Rules relating to judicial services of the respective “States modified in accordance with the directions contained in paragraph 32 of All India judges’ Association 2002, as noticed above. Hence, any opinion rendered by the High Court under Art. 234 and any aid and advice, on the subject, to the Governor in terms of Art. 163 of the Constitution, would be of no avail, unless such opinions are in conformity with the directions of the Apex Court as noticed above. Therefore, notwithstanding the question whether there was a complete consultation following the mandate of Art. 234, the State Government and the High Court were obliged to amend the Service Rules as noticed above, in terms of the directions in paragraph 32 of the All India Judges’ Association 2002.”
In that case, the learned Single Judge was concerned with the vires of a provision on the score that there was no consultation in its enactment with the High Court. It is in the context of the decision of the Apex Court that it was found that though there was no consultation, the Rule need not be overturned, as it would be a futile exercise. This was for the reason that even if consulted, it was inconceivable as to how the High Court could have offered anything different or useful in the light of the decision of the Apex Court. In other words, even if there was consultation, it would have been a futile exercise. Thus, on the one hand, it was found that there was no consultation, but it is, on the other hand, found that any consultation would be of no use. It was in such circumstances that the learned Single Judge took the view that the decision of the Apex Court removed the shadow over the validity of an otherwise invalid Rule. We do not see how the said Judgment can apply in the facts of the present cases.
30. As far as the contention based on the amendment being relevant to vacancies which arose after the amendment is concerned, it is to be noted that as is clear from the Notification in question issued in 2007, there were six vacancies prior to the amendment. Learned counsel for the petitioners also would contend that their claim is in respect of the six vacancies. As regards vacancies which have arisen after the amendment is concerned, it would appear to be beyond the pale of the controversy raised in these cases.
31. Finding on the Contentions of Shri Elvin Peter P.J., learned counsel for the party respondents:
The argument of Shri Elvin Peter, learned counsel appearing on behalf of the party respondents based on the decision in State of Bihar And Another v. Bal Mukund Sah And Others ((2000) 4 SCC 640), at first blush sounds attractive. But, on a deeper scrutiny, we are of the view that the learned counsel may not be justified in canvassing for the wide proposition that the High Court and the Government are totally free from the trammels of legislative power. As already noted, the question which arose for consideration was the validity of the law made by the Legislature of the State of Bihar, providing for reservation for direct recruitment. As we have already noted, the Apex Court took the view that the general sweep of Article 309 has to be read subject to the complete code regarding appointment of the District Judges and Judges in the Subordinate Judiciary. A candidate unless he was recommended by the High Court under Article 233, could not be validly appointed as a District Judge. In this context, we must refer to paragraphs 26, 29, 30, 37 and 45 which read as follows:
“26. So far as recruitment to the District and Subordinate Judiciary is concerned, we have therefore, to turn to the twin articles found in Chapter VI of Part VI dealing with “subordinate courts”. The relevant two articles read as under:
“233. Appointment of District Judges.- (1) Appointment of persons to be, and the posting and promotion of, District Judges in any State shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such State.
(2) A person not already in the service of the Union or of the State shall only be eligible to be appointed a District Judge if he has been for not less than seven years an advocate or a pleader and is recommended by the High Court for appointment.
* * *
234. Recruitment of persons other than District Judges to the Judicial Service.- Appointments of persons other than District Judges to the Judicial Service of a State shall be made by the Governor of the State in accordance with rules made by him in that behalf after consultation with the State Public Service Commission and with the High Court exercising jurisdiction in relation to such State.”
Article 233 dealing with appointment of District Judges, on its own express terminology projects a complete scheme regarding the appointment of persons to the District Judiciary as District judges. In the present appeals, we are concerned with direct recruitment to the cadre of District Judges and hence sub-article (2) of Article 233 becomes relevant. Apart from laying down the eligibility criterion for candidates to be appointed from the Bar as direct District judges the said provision is further hedged by the condition that only those recommended by the High Court for such appointment could be appointed by the Governor of the State. Similarly, for recruitment of judicial Officers other than District Judges to the Judicial Service at lower level, a complete scheme is provided by Article 234 wherein the Governor of the State can made such appointments in accordance with the rules framed by him after consulting with the State Public Service Commission and with the High Court exercising jurisdiction in relation to such State. So far as the Public Service Commission is concerned, as seen from Article 320, the procedure for recruitment to the advertised posts to be followed by it is earmarked therein. But, the role of the Public Service Commission springs into action after the posts in a cadre are required to be filled in by direct recruitment and for that purpose due intimation is given to the Commission by the State authorities. They have obviously to act in consultation with the High Court so far as recruitment to posts in the Subordinate Judiciary is concerned. Of course, it will be for the High Court to decide how many vacancies in the cadre of District Judges and Subordinate Judges are required to be filled in by direct recruitment so far as the District Judiciary is concerned and necessarily only by direct recruitment so far as the Subordinate Judiciary is concerned. This prime role of the High Court becomes clearly discernible from article 235 which deals with the control of the High Court over the Subordinate Judiciary and also of subordinate courts. The said article provides as under:
“235: Control over subordinate courts – The Control over District Courts and courts subordinate thereto including the posting and promotion of, and the grant of leave to, persons belonging to the Judicial Service of a State and holding any post inferior to the post of District Judge shall be vested in the High Court, but nothing in this article shall be construed as taking away from any such person any right of appeal which he may have under the law regulating the conditions of his service or as authorising the High Court to deal with him otherwise than in accordance with the conditions of his service prescribed under such law.”
It is in the light of the aforesaid relevant scheme of the Constitution that we now proceed to tackle the main controversy posed for our consideration.
29. The first part of Article 235 itself lays down that it is for the High Court to control the District Courts and courts subordinate thereto and in exercise of that control vesting in the High Court, regulation of posting and promotions and granting of leave to persons belonging to the Judicial Services has to be done by the High court. It is, of course, true that in the second part of Article 235 judicial Officers already appointed to the service have their statutory right of appeal and the right to be dealt with regarding other service conditions as laid down by any other law for the time being in force, expressly protected. But, these provisions of the second part only enable the Governor under Article 309, in the absence of any statutory enactment made by the competent Legislature for regulating the conditions of service of judicial Officers who are already recruited and have entered and become part and parcel of the State service, to promulgate appropriate rules on the subject. But, so far as the entry points are concerned, namely recruitment and appointment to the posts of Presiding Officers of the courts subordinate to the High Courts, only Articles 233 and 234 would govern the field. Article 234 lays down the procedure and the method of recruiting judicial Officers at grass-root level being Subordinate Judges and Munsiffs as laid down by the 1955 Rules. These Rules are also framed by the Governor of Bihar in exercise of his powers under Article 234 obviously after the consultation of the High Court and the Public Service Commission. Rules regarding the procedure of selection to be followed by the State Public Service Commission as found in Rules 4 to 17 deal with the method to be adopted by the Public Service Commission while selecting candidates who offer their candidature for the posts advertised to be filled in. These Rules obviously require consultation with the Commission on the procedural aspect of selection process. But, so far as the High Court is concerned, its consultation becomes pivotal and relevant by the thrust of Article 233 itself as it is the High Court which has to control the candidates, who ultimately on getting selected, have to act as Judges at the lowest level of the Judiciary and whose posting, promotion and grant of leave and other judicial control would vest only in the High court, as per Article 235 first part, once they enter the Judicial Service at grass-root level. Thus, consultation of the Governor with the High Court under Article 234 is entirely of a different type as compared to his consultation with the Public Service Commission about the procedural aspect of selection. So far as direct recruitment to the posts of District Judges is concerned, Article 233 sub-article (2) leaves no room for doubt that unless the candidate is recommended by the High Court, the Governor cannot appoint him as a District Judge. Thus, Articles 233 and 234, amongst them, represent a well-knit and complete scheme regulating the appointments at the apex level of the District Judiciary, namely, District Judges on the one hand and Subordinate Judges at the grass- root level of the Judiciary subordinate to the Distrct Court. Thus, the Subordinate Judiciary represents a pyramidical structure. At the base level, i.e. grass- root level are the Munsiffs and Magistrates whose recruitment is governed by Article 234. That is the first level of the Judiciary. The second level represents already recruited judicial Officers at grass-root level, whose working is controlled by the High Court under Article 235 first part. At the top of this pyramid are the posts of District Judges. Their recruitment to these posts is governed by Article 233. It is the third and the apex level of the Subordinate Judiciary.
30. It has also to be kept in view that neither Article 233 nor Article 234 contains any provision of being subject to any enactment by the appropriate Legislature as we find in Articles 98, 146, 148, 187, 229(2) and 324(5). These latter articles contain provisions regarding the rule-making power of the authorities concerned subject to the provisions of the law made by Parliament or the Legislature. Such a provisions is conspicuously absent in Articles 233 and 234 of the Constitution of India. Therefore, it is not possible to agree with the contention of learned counsel for the appellant State that these articles only deal with the rule-making power of the Governor, but do not touch the legislative power of the competent Legislature. It has to be kept in view that once the Constitution provides a complete code for regulating recruitment and appointment to the District Judiciary and to the Subordinate Judiciary, it gets insulated from the interference of any other outside agency. We have to keep in view the scheme of the Constitution and its basic frame work that the Executive has to be separated from the Judiciary. Hence, the general sweep of Article 309 has to be read subject to this complete code regarding appointment of District Judges and Judges in the Subordinate Judiciary.
36. It becomes, therefore, obvious that no recruitment to the post of a District Judge can be made by the Governor without recommendation from the High Court. Similarly, appointment4s to the Subordinate Judiciary at grass-root level cannot be made by the Governor save and except according to the rules framed by him in consultation with the High Court and the Public Service Commission. Any statutory provision bypassing consultation with the High Court and laying down a statutory fiat as is tried to be done by enactment of Section 4 by the Bihar Legislature has got to be held to be in direct conflict with the complete code regarding recruitment and appointment to the posts of the District Judiciary and the Subordinate Judiciary as permitted and envisaged by Articles 233 and 234 of the Constitution. The impugned Section 4, therefore, cannot operate in the clearly earmarked and forbidden field for the State Legislature so far as the topic of recruitment to the District Judiciary and the Subordinate Judiciary is concerned. That field is carved out and taken out from the operation of the general sweep of Article 309.
37. It is, of course, true as laid down by a catena of decisions of this Court, that topics of constitution of courts and services, laying down of rules regarding the conditions of service other than those expressly placed within the jurisdiction of the High Court by Articles 233 and 235, providing for age of superannuation or other recruitment benefits to judicial Officers, fixing pay scales, diversification of cadres may form part of the general recruitment and conditions of services falling within the spheres of the Governor’s rule-making power under Article 309 read with the second part of Article 233 or may even be made the subject-matter of legislation by the competent Legislature in exercise of its legislative powers under Entry 41 of List II or for that matter Entry 11-A of List III of the Seventh Schedule. But, save and except this permitted field, the State Legislature cannot enter upon the forbidden field expressly reserved for consultation with the High Court by the thrust of Articles 233 and 234 so far as the initial entry point of recruitment to the Judicial Service at grass-root level or at the apex level of the District Judiciary is concerned. A three-Judge Bench of this Court in the case of A. Panduranga Rao v. State of A.P. speaking through Untwalia, J., considered the question whether anyone can be appointed by the Governor as a District Judge without being recommended by the High Court. Relying on the Constitution Bench decision of this Court in Chandra Mohan case in para 7 of the Report, observations were made as under: (SCC p.712):
“There are two sources of recruitment, namely, (i) service of the Union or the State, and (ii) Members of the Bar. The said Judges from the first source are appointed in consultation with the High Court and those from the second source are appointed on the recommendation of the High Court.”
And thereafter the following pertinent observations were made in para 8, which read as under: (SCC p.712):
“8. A candidate for direct recruitment from the Bar does not become eligible for appointment without the recommendation of the High Court. He becomes eligible only on such recommendation under clause (2) of Article 233. The High Court in the Judgment under appeal felt some difficulty in appreciating the meaning of the word “recommended”. But, the literal meaning given in the Concise Oxford Dictionary is quite simple and apposite. It means “suggest as fit for employment”. In case of appointment from the Bar, it is not open to the Government to choose a candidate for appointment until and unless his name is recommended by the High Court.”
It is, therefore, obvious that the State Legislature has no role to play while controlling appointments of District Judges under Article 233 or appointment of Civil Judges to the Subordinate Judiciary at grass-root level under the District Judiciary and it is only the Governor who is entrusted with the said task which he has to undertake after consultation with the High Court and by framing appropriate rules for recruitment to the Judiciary at grass-root level as enjoined by Article 234 and can only act on recommendation by the High Court for direct recruitment from the Bar for being appointed as District Judges as laid down by Article 233 sub-article (2). There is no third method or third authority which can intervene in the process or can have its say, whether legislative authority or executive authority, as the case may be, independently of the complete scheme of such recruitment as envisaged by the aforesaid two articles. It is, therefore, difficult to appreciate the contention of learned Senior Counsel for the appellant State that paramount legislative power of the State Legislature stands untouched by the scheme of the aforesaid two articles of the Constitution.”
It is also necessary to refer to the following passage in paragraph (45):
“That shows the clear intention of the Constitution-makers that so far as question of recruitment and appointment to available vacancies in the cadre of District Judges and Judges of the Subordinate Judiciary is concerned, neither the Legislature, nor the Governor dehors any consultation with the High Court, can have any independent say.”
32. A perusal of paragraphs 36 and 37 would show that there is legislative power to prescribe the relevant conditions of service as sanctioned by law. Undoubtedly, there must be consultation with the High Court in this regard. If a Rule is made in consultation with the High Court, we feel that it will be straining the constitutional provisions, to hold that there is no rule making power, either or that the High Court can be free from its trammels. We have already held that the Judgment of the Apex Court in the All India Judges’ case does not amount to a declaration of law in the sense that without an amendment of the existing Rules, the relevant restrictions in this regard were born of their own. In fact, neither the High Court, nor the Government of Kerala have a case that the amendment prescribing the age is contrary to the constitutional scheme or is impermissible. It was the High Court which made the move in 2006 to amend the Rules. As far as the argument of Shri Elvin Peter based on the decision of the Apex Court in Delhi Development Authority v. Skipper Construction Co. (P). Ltd. And Another (1996) 4 SCC 622 is concerned, we do not think that the dicta in the said case have any application to the facts of the present cases. That was a case where the Apex Court had to deal with the conduct of a party before it, namely a builder who did not abide by certain orders. The relevant paragraphs are as follows:
“18. The above principle has been applied even in the case of violation of orders of injunction issued by civil courts. In Clarke v. Chadburn Sir. Robert Megarry V-C observed:
“I need not cite authority for the proposition that it is of high importance that orders of the court should be obeyed. Wilful disobedience to an order of the court is punishable as a contempt of court, and I feel no doubt that such disobedience may properly be described as being illegal. If by such disobedience, the persons enjoined claim that they have validly effected some charge in the rights and liabilities of others, I cannot see why it should be said that although they are liable to penalties for contempt of court for doing what they did, nevertheless those acts were validly done. Of course, if an act is done, it is not undone merely by pointing out that it was done in breach of the law. If a meeting is held in breach of an injunction, it cannot be said that the meeting has not been held. But, the legal consequences of what has been done in breach of the law may plainly be very much affected by the illegality. It seems to me on principle that those who defy a prohibition ought not to be able to claim that the fruits of their defiance are good, and not tainted by the illegality that produced them.”
19. To the same effect are the decisions of the Madras and Calcutta High Courts in Century Flour Mills Ltd. v. s. suppiah and Sujit Pal v. Prabir Kumar Sun. In Century Flour Mills Ltd. it was held by a Full Bench of the Madras High Court that where an act is done in violation of an order of stay or injunction, it is the duty of the court, as a policy, to set the wrong right and not allow the perpetuation of the wrongdoing. The inherent power of the court, it was held, is not only available in such a case, but it is bound to exercise it to undo the wrong in the interest of justice. That was a case where a meeting was held contrary to an order of injunction. The Court refused to recognise that the holding of the meeting is a legal one. It put back the parties in the same position as they stood immediately prior to the service of the interim order.” We do not see how it can be of any assistance to the respondents in the facts of these cases. Learned counsel for the party respondent then relied on paragraph 40 of the Judgment in the All India Judges’ case. It reads as follows:
“40. Any clarification that may be required in respect of any matter arising out of this decision will be sought only from this Court. The proceedings, if any, for implementation of the directions given in this Judgment shall be filed only in this Court and no other court shall entertain them.”
He would contend that in the light of the said decision, the Writ Petitions are to be dismissed. We see no merit in the said contention. We cannot hold that this case is one which was in the contemplation of the Court within the meaning of paragraph 40. It cannot be said that what the petitioners are seeking is a clarification in respect of a matter arising out of the decision.
33. Finding on the contentions of Shri T. Sethumadhavan based on Rule 10(c) of the KS SSR in W.P.(C).No.3543/09:
The date of birth of the petitioner is 28.11.1957. He is a member of Other Backward Community. As per the Notification and in terms of the Rule then in force, the candidate should not have completed fortyseven years of age, as on 1st January, 2007. The petitioner had not completed fifty years of age as on 1.1.2007. Rule 10(c) of the KS SSR in so far as it relevant is extracted hereunder:
“10(c): The upper age limit prescribed in the Special Rules shall, unless otherwise stated, be raised by 5 years in the case of a candidate belonging to any of the Scheduled Castes or adult members of such castes and their children when such adult members are converted to other regions or Scheduled Tribes and by 3 years in the case of a candidate belong to any of the Other Backward Classes:”
In terms of this Rule, as the petitioner was entitled to relaxation of upper age limit by three years, the petitioner was considered eligible. However, the argument based on Rule 10(c) to the effect that even after the amendment, he would be eligible is misconceived. After the amendment, a person who is above forty five years of age as on 01.01.2007, will not be considered eligible. However, under the Rule, the petitioner being a member of OBC, is entitled to relaxation of three years. Applying the said Rule, it can be seen that the petitioner will not be eligible. This is for the reason that as per the amended Rule, the petitioner cannot be considered eligible for the reason that he had completed fortynine years of age as on 28.11.2006 and had, therefore, completed fortynine years as on 1.1.2007. The age relaxation being only for three years and the maximum age being fortyfive years, the petitioner being fortynine years, it is clear that the petitioner cannot claim the benefit of Rule 10(c) and hence his claim is rejected.
34. Finding on the contentions of the petitioner in W.P.(C).No.14027/09 based on the petitioner having completed thirtyfive years of age as on the last date for receipt of applications: We see no merit in the aforesaid contention of the petitioner. It may be true that the petitioner has become thirtyfive years of age before the last date for receipt of application. The argument is based on the Clause in the Notification which provides that eligibility shall be determined with reference to the last date fixed for receipt of the applications, as also the decisions of the Apex Court, for the proposition that what would be relevant is the last day for receipt of applications. The Apex Court in Rekha Chaturvedi (Smt). v. University of Rajasthan And Others ((1993) Supp.(3) SCC 168), after referring to the perils of uncertainty of date to determine possession of qualification, held as follows:
“Hence, in the absence of a fixed date indicated in the advertisement/notification inviting applications with reference to which the requisite qualifications should be judged, the only certain date for the scrutiny of the qualifications will be the last date for making the applications.”
This principle is approved in Bhupinderpal Singh And Others v. State of Punjab And Others ((2000) 5 SCC 262) and Ashok Kumar Sonkar v. Union of India And Others (2007) 4 SCC 54. Per contra, Shri K.R.B. Kaimal, learned senior counsel appearing for the High Court relies on the actual provision contained in the Notification in this regard. Note 3 to clause (2) of the Notification reads as follows:
“Save as otherwise provided, eligibility shall be determined with reference to the last date fixed for the receipt of the applications.”
Clause (3)(b) provides that the candidate should not have completed forty seven years of age as on the first day of January, 2007. Therefore, learned senior counsel appearing for the High Court would contend that even the Notification clearly contemplates that as regards the question of age, it has to be determined with reference to the first day of January, 2007. He submits that this exception made is in conformity with the Kerala Public Services (Date for Determination of Age for Eligibility for Appointment) Rules, 1977. Rule 2 reads as follows:
77 “Date for determination of age for eligibility for appointment to Public Services.-
With effect on and from the commencement of these Rules, the Special Rules for the various State Services and Subordinate Services, in force at such commencement, shall stand modified as if the date specified in those Special Rules for determination of the age for eligibility for appointment to posts included in the various services had been modified as the 1st January of the year in which applications for appointment to such posts are invited;
Provided that nothing in this Rule shall apply to any appointment to be made in pursuance of any notification inviting applications, published before the commencement of these Rules.”
Clearly the Rule contemplates eligibility condition as to age being determined with reference to the first day of the year in which applications are called for, which in this case is 01.01.2007. Admittedly, as on the said date, the petitioner has not completed thirtyfive years of age. The determination of eligibility with reference to the last day fixed for receipt of applications assumes relevance only if no other date is indicated by the Rules and the Notification. The general rule aforesaid operates and it is the first day of the year in which applications are invited which is relevant. Thus, it is not open to the petitioner to contend that the amendment applies, but the petitioner has completed thirtyfive years as provided in law and as per the Notification. W.P.(C).No.2302/09:
35. Whether there is res judicata or constructive res judicata by virtue of the Judgment in 2008(4) KLT 916 ?
The contention of res judicata or constructive res judicata does not appeal to us. There is no written plea as such. The Writ Petition culminating in the Judgment of the Division Bench arose out of the refusal by the High Court to call the petitioner for interview on the ground that the petitioner had been selected as a Munsiff. Therefore, what fell for decision was whether the refusal to call the petitioner for interview could be justified on the said ground. No occasion arose for the Court to consider whether the petitioner could be called for interview on the basis of the amendment in question. In fact, the High Court has apparently called all the other petitioners for the interview. We also notice that the Judgment of the Division Bench itself has not become final especially when S.L.P. is pending consideration before the Apex Court. Further more, actually there was no specific pleading as such about the plea based on the amendment being barred by res judicata or constructive res judicata.
36. What is the effect of the amendment on the rights of the petitioners ? This is the most crucial question which arises. We will advert to the decisions referred to by Shri K. Jaju Babu, the arguments based on which are adopted by the counsel appearing for the other petitioners also. In A.A. Calton v. Director of Education and Another ((1983) 3 SCC 33), the appellant called in question the appointment of the second respondent as the Principal of an IntermediateCollege, a minority Institution. The selection commenced in the year 1973. The Selection Committee recommended the name of the appellant also. The Regional Deputy Director did not approve the selection. There was a remit to the Selection Committee. Thereafter, the second respondent was assigned a higher rank than the appellant. There was yet another remit and the Selection Committee made a third recommendation. The appellant questioned the selection on the third occasion and the High Court quashed the same and the Director of Education was directed to make appointment. The second respondent was appointed. This was challenged. It was this Writ Petition which was dismissed by the High Court. There was an amendment which came into force on 18.8.1975, taking away the power of the Director to make an appointment. It is in this context that the Court held as follows:
“At every stage in that process certain rights are created in favour of one or the other of the candidates. Section 16-F of the Act cannot, therefore, be construed as merely a procedural provision. It is true that the legislature may pass laws with retrospective effect subject to the recognised constitutional limitations. But, it is equally well settled that no retrospective effect should be given to any statutory provision so as to impair or take away an existing right, unless the statute either expressly or by necessary implication directs that it should have such retrospective effect. In the instant case admittedly, the proceedings for the selection had commenced in the year 1973 and after the Deputy Director had disapproved the recommendations made by the Selection Committee twice the Director acquired the jurisdiction to make an appointment from amongst the qualified candidates who had applied for the vacancy in question. At the instance of the appellant himself in the earlier writ petition filed by him, the High Court had directed the Director to exercise that power. Although the Director in the present case exercised that power subsequent to August 18, 1975 on which date the amendment came into force, it cannot be said that the selection made by him was illegal since the amending law had no retrospective effect. It did not have any effect on the proceedings which had commenced prior to August 18, 1975.”
In P. Mahendran And Others v. State of Karnataka And Others ((1990) 1 SCC 411), the Karnataka General Service (Motor Vehicles Branch) (Recruitment) Rules, 1962 prescribed Diploma in Automobile Engineering or Mechanical Engineering as the minimum qualification for appointment of Motor Vehicle Inspectors. In 1983, the Commission invited applications from holders of Diploma in Automobile Engineering or Mechanical Engineering. Interview letters were issued and the Commission commenced the interview. The High Court of Karnataka issued orders of stay and the interviews could be completed only by June, 1987 and the result was published in July, 1987 in the Gazette. However, the Recruitment Rules were amended in May, 1987 omitting Diploma in Mechanical Engineering from the prescribed qualifications. The Administrative Tribunal quashed the select list as well as the relevant advertisement on the basis of the amendment. The Apex Court, inter alia, after referring to the decision in Calton’s case (supra) also, held as follows:
“In view of these facts the sole question for consideration is as to whether the amendment made in the Rules on May 14, 1987 rendered the selection illegal. Admittedly, the amending Rules do not contain any provision enforcing the amended Rules with retrospective effect. In the absence of any express provision contained in the amending Rules, it must be held to be prospective in nature. The Rules which are prospective in nature cannot take away or impair the right of candidates holding Diploma in Mechanical Engineering as on the date of making appointment as well as on the date of scrutiny by the Commission, they were qualified for selection and appointment. In fact, the entire selection in the normal course would have been finalised much before the amendment of Rules, but for the interim orders of the High Court. If there had been no interim orders, the selected candidates would have been appointed much before the amendment of Rules. Since the process of selection had commenced and it could not be completed on account of the interim orders of the High Court, the appellants’ right to selection and appointment could not be defeated by subsequent amendment of Rules.
It is well settled rule of construction that every statute or statutory rule is prospective unless it is expressly or by necessary implication made to have retrospective effect. Unless there are words in the statute or in the Rules showing the intention to affect existing rights the rule must be held to be prospective. If a rule is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only. In the absence of any express provision or necessary intendment the rule cannot be given retrospective effect except in matter of procedure. The amending Rules of 1987 do not contain any express provision giving the amendment retrospective effect nor there is anything therein showing the necessary intendment for enforcing the rule with retrospective effect. Since the amending Rules were not retrospective, it could not adversely affect the right of those candidates who were qualified for selection and appointment on the date they applied for the post, moreover as the process of selection had already commenced when the amending Rules came into force, the amended Rules could not affect the existing rights of those candidates who were being considered for selection as they possessed the requisite qualifications prescribed by the Rules before its amendment moreover construction of amending Rules should be made in a reasonable manner to avoid unnecessary hardship to those who have no control over the subject matter.”
In N.T. Devin Katti And Others v. Karnataka Public Service Commission And Others (1990) 3 SCC 157, the Karnataka Public Service Commission issued Notification on 23.5.1975, published on 29.5.1975, inviting applications from inservice candidates for recruitment to fifty posts of Tahsildars. The Notification specified the details of the posts reserved for various categories. The appellants were applicants. The written examination and the interview being over, a final list of successful candidates was published. The Commission also notified an additional list of candidates in accordance with the 1975 Rules. The Commission had followed the directions in the Government Order dated September 6, 1969 in regard to the reservation to various categories. The Government, however, refused to approve the list on the basis that reservation should have been made in accordance with Order dated July 9, 1975. The appellants before the Apex Court did not figure in the revised list of candidates prepared pursuant to the direction of the Government. The Apex Court found that the Government interpretation was erroneous, as the conditions precedent contemplated under paragraph 11 of the order were fulfilled and, therefore, the selections which were pending were saved. Thereafter, it was proceeded to hold as follows:
“11. There is yet another aspect of the question. Where advertisement is issued inviting applications for direct recruitment to a category of posts, and the advertisement expressly states that selection shall be made in accordance with the existing rules or government orders, and if it further indicates the extent of reservations in favour of various categories, the selection of candidates in such a case must be made in accordance with the then existing rules and government orders. Candidates who apply, and undergo written or viva voce test acquire vested right for being considered for selection in accordance with the terms and conditions contained in the advertisement, unless the advertisement itself indicates a contrary intention. Generally, a candidate has right to be considered in accordance with the terms and conditions set out in the advertisement as his right crystallises on the date of publication of advertisement, however, he has no absolute right in the matter. If the recruitment Rules are amended retrospectively during the pendency of selection, in that event selection must be held in accordance with the amended Rules. Whether the Rules have retrospective effect or not, primarily depends upon the language of the Rules and its construction to ascertain the legislative intent. The legislative intent is ascertained either by express provision or by necessary implication; if the amended Rules are not retrospective in nature, the selection must be regulated in accordance with the rules and orders which were in force on the date of advertisement. Determination of this question largely depends on the facts of each case having regard to the terms and conditions set out in the advertisement and the relevant rules and orders. Lest there be any confusion, we would like to make it clear that a candidate on making application for a post pursuant to an advertisement does not acquire any vested right of selection, but if he is eligible and is otherwise qualified in accordance with the relevant rules and the terms contained in the advertisement, he does acquire a vested right of being considered for selection in accordance with the rules as they existed on the date of advertisement. He cannot be deprived of that limited right on the amendment of rules during the pendency of selection unless the amended rules are retrospective in nature.” (Emphasis supplied)
In Gopal Krushna Rath v. M.A.A.Baig (Dead) by Lrs. And Others (1999) 1 SCC 544, applications were invited for appointment to the post of Professor on 01.6.1991. On the basis of the assessment chart, candidates applied and after conducting interviews, the Committee prepared select list. The interview had taken place on 11.5.1992. The Writ Petition was filed challenging the appointment of the appellant on the ground that guidelines prescribed by the UGC were changed with effect from 19.9.1991 and as the appellant did not possess the newly prescribed qualification of ten years experience in teaching in the Post Graduate level, his appointment was bad. It is in this context that the court held, inter alia, as follows:
“5. It is an accepted position that on the date of the advertisement and on the last date prescribed for the receipt of applications, the qualification prescribed by the University Grants Commission was 10 years’ experience of teaching and/or research. Therefore, the advertisement also prescribed the same qualification. The appellant possessed that qualification. Even on the date when the Syndicate prepared an assessment chart, the position was the same. It was only thereafter, on 19.9.1991, that the new qualification regarding ten years’ teaching experience at the postgraduate level came into effect.”
It is also held that the appellant possessed the necessary qualifications as advertised on the last date for receipt of applications and accordingly, the Appeal filed by the appellant was allowed. In Maharashtra State Road Transport Corpn. and Others v. Rajendra Bhimrao Mandve And Others ((2001) 10 SCC 51), advertisement was issued on 20.9.1995 for the post of Drivers in the appellant Corporation. According to the writ petitioners, the selection was bad for the reason that the Selection Committee had allotted twentyfive per cent marks for interview on the basis of Circular dated 24.6.1996. According to them, they were governed by Circular dated 4.4.1995 which assigned twelve and a half marks for the oral test as also Circular dated 23.1.1995. The High Court allowed the Writ Petition and set aside the selection and declared that the claim of the ten petitioners are also to be considered. The Apex Court found that the High Court was not correct in holding that Circular dated 24.6.1996 is illegal or arbitrary. Thereafter, it is proceeded to hold as follows:
“Instead, it would have been well open to the High Court to have declared that the criteria sought to be fixed by the Circular dated 24.6.1996 as the sole determinative of the merit or grade of a candidate for selection long after the last date fixed for receipt of application and in the middle of the course of selection process (since in this case, the driving test was stated to have been conducted on 27.11.1995) cannot be applied to the selections under consideration and challenged before the High Court. It has been repeatedly held by this Court that the rules of the game, meaning thereby, that the criteria for selection cannot be altered by the authorities concerned in the middle or after the process of selection has commenced. Therefore, the decision of the High Court, to the extent it pronounced upon the invalidity of the circular orders dated 24.6.1996, does not merit acceptance in our hand and the same are set aside.”
In Secretary, A.P. Public Service Commission v. B. Swapna And Others ((2005) 4 SCC 154), the appellant Commission advertised fifteen posts in all of Assistant Public Relations Officer. There was an amendment on 30.7.1997 of the Rules. It read as follows:
“The list of the candidates approved/selected by the Commission shall be equal to the number of vacancies only including those for reserve communities/categories notified by the unit officers/Government. The fallout vacancies if any due to relinquishment and non-joining, etc., of selected candidates shall be notified in the next recruitment.”
The Apex Court in Appeal against the order of the tribunal as confirmed by the High Court, inter alia, held as follows:
“14. The High Court has committed an error in holding that the amended rule was operative. As has been fairly conceded by learned counsel for respondent 1 applicant, it was the unamended rule which was applicable. Once a process of selection starts, the prescribed selection criteria cannot be changed. The logic behind the same is based on fair play. A person who did not apply because a certain criterion e.g. minimum percentage of marks can make a legitimate grievance, in case the same is lowered, that he could have applied because he possessed the said percentage. Rules regarding qualification for appointment if amended during continuance of the process of selection do not affect the same. That is because every statute or statutory rule is prospective unless it is expressly or by necessary implication made to have retrospective effect. Unless there are words in the statute or in the rules showing the intention to affect existing rights the rule must be held to be prospective. If the rule is expressed in a language which is fairly capable of either interpretation, it ought to be considered as prospective only…………………The selection from the ranking list from amongst the posts advertised was limited to the cases where the selected candidates had relinquished the selection or who had not joined the duties within the given time and also new requisitions sent by the appointing authority. The Commission did not think it appropriate to make appointment from the new requisitions. The fact that the Commission had directed that fresh advertisements were to be made is clearly indicative of the fact that the Commission did not want the new requisitions to be filled up by appointing from the ranking list in force. The Tribunal and the High Court were therefore not justified in holding by referring to the amended rule that the fallout vacancies were to be filled up from the ranking list. The fallout vacancies in terms of the amended notification were to be notified in the next recruitment. Case of the applicant all through has been that her claim was relatable to the 14 vacancies indented on 14.4.1997 and in particular the open category. It is not her case that the Commission had directed fresh advertisement though it had not frozen the rank list. It is not disputed that there cannot be direction for fresh advertisement unless the rank list is frozen. The materials placed on record clearly show that before directing fresh advertisement, the Commission had in fact, for reasons recorded directed freezing. Unfortunately, the Tribunal did not grant adequate time to the Commission to produce relevant records and the High Court proceeded on erroneous premises that the amended Rules applied. Therefore, looked at from any angle, the High Court’s judgment affirming the Tribunal’s judgment cannot be maintained. The same is set aside.”
In Mohanan Pillai v. State of Kerala (2007 (2) KLT 551 (SC)), applications were invited for twelve posts of Watchman/Messenger/Attender and a written test was held on 18.1.2001. Only thirtysix candidates who got the highest marks were called for the interview, appellant being one among them. A policy decision was taken to call only those candidates who had come within the zone of three times the number of posts. The minimum mark thereafter was reduced to 46 marks and eleven more persons were permitted to appear for the interview. The appellant who was not selected, challenged the selection on the ground that respondents 4 and 5 were called for the interview only one day prior to the holding thereof. The stand of the Public Sector Company was, inter alia, that it was decided to enlarge the zone of consideration to 1:4 and accordingly call letters were issued. The Apex Court held as follows:
“9. Why such a decision had been taken after the publication of the result of the written examination and after calling 36 candidates for interview is not known. Why the Company intended to enlarge the zone of consideration from 1:3 to 1:4 has also not been disclosed. Why the cut-off mark was also lowered remained a mystery.
10. It may be that in a given situation, a decision of the State may be changed, but therefor good and sufficient reasons must be assigned. The Company failed to do so. The decision taken in this behalf smacks of arbitrariness. It prejudiced the candidates like the appellant.
11. It is now well-settled that ordinarily rules which were prevailing at the time, when the vacancies arose would be adhered to. The qualification must be fixed at that time. The eligibility criteria as also the procedures as was prevailing on the date of vacancy should ordinarily be followed.”
The Court allowed the Appeal and set aside the selection of respondents 4 and 5. The Court in the said case noted that the allocation of marks for interview was in fact misused and drew an inference of favouritism. Also it was noticed that the power was exercised for an unauthorised purpose and it constituted malice in law.
37. In K. Manjusree v. State of Andhra Pradesh And Another ((2008) 3 SCC 512), the Andhra Pradesh State Higher Judicial Service Rules did not prescribe any criteria for selection. However, as per the Resolutions, twentyfive marks were earmarked for interview. By Resolution dated 30.11.2004, it was resolved to conduct the written examination for seventyfive marks and oral examination for twentyfive marks. The written test was held on 30.1.2005 and 1026 candidates appeared for the examination. Results were declared on 24.2.2005. There was some litigation as a result of which the interviews were delayed. Thereafter, interview was held in March, 2006. A consolidated merit list of eightythree candidates was prepared in the order of aggregate merit. It contained, inter alia, marks secured in the written examination out of 100 marks and marks secured in the interview out of twentyfive marks and the total marks secured in the written examination and interview out of one hundred and twentyfive.
When the matter came up before the Full Court, it did not agree with the select list as approved by the Administrative Committee. It authorised the Chief Justice to constitute a Committee and the said Committee was of the view that the candidates should be evaluated with reference to the written examination marks of seventyfive and interview marks of twentyfive. It scaled down the marks with reference to the total marks in the written examination with reference to the total of hundred. It also was of the view that there should be the same cut off percentage for interview marks and those who failed to secure such minimum marks in the interview should be considered having failed. Smt. Manjusree whose name was found in the first list contended that the prescription of minimum marks which was not sanctioned by the Rules or the Resolution dated 30.11.2004 and the Full Court was changing the Rules of the game, not only after the game was started, but the game played. The Court after referring to the case law held, inter alia, as follows:
“33. The Resolution dated 30-11-2004 merely adopted the procedure prescribed earlier. The previous procedure was not to have any minimum marks for interview. Therefore, extending the minimum marks prescribed for written examination, to interviews, in the selection process is impermissible. We may clarify that prescription of minimum marks for any interview is not illegal. We have no doubt that the authority making rules regulating the selection, can prescribe by rules, the minimum marks both for written examination and interviews, or prescribe minimum marks for written examination but not for interview, or may not prescribe any minimum marks for either written examination or interview. Where the rules do not prescribe any procedure, the Selection Committee may also prescribe the minimum marks, as stated above. But, if the Selection Committee wants to prescribe minimum marks for interview, it should do so before the commencement of selection process. If the Selection Committee prescribed minimum marks only for the written examination, before the commencement of selection process, it cannot either during the selection process or after the selection process, add an additional requirement that the candidates should also secure minimum marks in the interview. What we have found to be illegal, is changing the criteria after completion of the selection process, when the entire selection proceeded on the basis that there will be no minimum marks for the interview.” (Emphasis supplied)
In Stalin v. State of Kerala (2006 (1) KLT 493), the question was whether the Commission was justified in refusing to advise the petitioners on the ground that they did not possess the qualifications in terms of the amended Special Rules after the commencement of the selection process. The Commission had issued Notification on 27th October, 1998. The selection process was completed and separate District-wise rank lists were prepared on various days between April 22nd and January, 2003. On 12th April, 1999, the Rules were amended, prescribing a qualification different from the qualification earlier prescribed. The Court referred to Mahendran’s case (supra) and held that the amendment would not have any impact on the rights accrued to the petitioners as on the date of the Notification issued by the Commission. It is also relevant to note that the Court also drew support from Ext.P4 G.O. clarifying that changes in qualifications, etc. after the issuance of a Notification by the Commission will be given effect to in future selections only. There was no retrospective effect, either. In Mohammed Najim v. State of Kerala (1993 (2) KLT 721), a Division Bench of this Court was considering selection to the post of Amins. The Court held that the Government had the power to amend the Rules even after the selection process have started with retrospective effect provided it did not affect the constitutional rights of a person. It was held as follows, inter alia,:
“Though an applicant has a right to be considered for the post in accordance with the law as it existed at the time of commencement of the selection process, that right is not so sacrosanct or inviolable as not to be affected by a retrospective amendment to the rules. Such an amendment will operate and impair the right of consideration for appointment in a vacancy which alone inheres in an applicant. The government’s power to make rules regulating conditions of service, with retrospective effect is undeniable, whether under art. 309 of the Constitution or under S. 2 of the Kerala Public Services Act, 1968. A retrospective amendment naturally affects vested right. To say as suggested by the petitioners that any rules made with retrospective effect, shall not affect any vested rights, will thus be self-contradictory. Even if any right had vested in the petitioners, by the initiation of the selection process, that could be divested by a retrospective amendment provided it does not impinge upon any of their constitutional rights.” (Emphasis supplied)
It further held that the only right that is vested on the petitioners on their making the applications was the right to be considered for selection in accordance with the Rules as they existed on the date of the advertisement of which they could be deprived by a retrospective amendment. In Mohanan v. Director of Homeopathy (2006 (3) KLT 641 (FB)), a Full Bench of the Kerala High Court was considering the following facts, inter alia:
Applications were invited in 1995 to the post of Pharmacists Gr. II, the last date being 29.11.1995. Following the written test and interview, a rank list was published on 27.6.2003. In 1999, the Government issued Special Rules changing the qualifications with effect from 12.4.1999. The question arose whether in view of the amendment, persons could be appointed from persons in the list prepared on the basis of the pre-revised qualifications. The Court referred to the case law which we have already referred to and proceeded to hold as follows:
“It is worth noting that these decisions recognise a right in those persons who have applied pursuant to the selection process initiated prior to the date of coming into force of the Special Rules, for being considered for selection in accordance with the rules in force at that time. By the same coin, as equally enforceable right has to be recognised in those persons who possess the new/amended qualifications as per the Special Rules to get recruitments made in accordance with the new/amended rules, in which they also can compete to the vacancies which have arisen subsequent to the coming into force of the new/amended rules. Apart from consistency in applying law, failure to concede such right would amount to violation of the fundamental rights of those who have the new/amended qualifications, under Arts. 14 and 16 of the Constitution of India. In other words, both the rights should mutually co- exist and in that view also, our conclusion is perfectly in accordance with the constitutional principles which cannot be negated to both sets of people. When the position that the Government is empowered to amend recruitment rules even retrospectively is unquestionable, it cannot also be forgotten that after the amended rules have come into force, if appointments are allowed to be made from the list prepared in accordance with the unamended rules, notwithstanding the amendment, that would amount to postponing of the date of commencement of the amended rule itself, which no authority other than the Government can do. once an amendment regarding qualifications and method of appointment etc., in respect of a particular post comes into force any vacancy which arises subsequent to the commencement of the amended rules can be filled up only in accordance with the amended rules notwithstanding the currency of any rank list published by the PSC, selection of which was initiated prior to the amendment of the rules.”
38. We further notice that the decision in Manjusree’s case (supra) came to be affirmed, though a contention was taken that it was rendered without noticing certain earlier decisions. The decision in Hemani Malhotra v. High Court of Delhi ((2008) 7 SCC 11) related to the Delhi Higher Judicial Service. This case also related to the prescription for the minimum marks for the viva voce by the Full Court on the basis of the matter being placed before it by the Selection Committee. The candidates sat for the written test. They were called for the interview on various dates, but the interview was being deferred and it was thereafter that the Full Court took its decision fixing minimum qualifying marks on 13.12.2006. Thereafter, the interview was held. The complaint taken by the petitioners was that they have been excluded from being considered for appointment to the post of Higher Judicial Service exclusively on the basis of the cut off marks prescribed for the viva voce test which was illegal being contrary to the decision of the Apex Court in Lila Dhar v. State of Rajasthan ((1981) 4 SCC 159). It was also contended that minimum marks could not be prescribed after the selection process has commenced. In this context of the facts and after referring to Manjusree’s case, the Court, inter alia, held as follows:
“From the proposition of law laid down by this Court in the above mentioned case, it is evident that previous procedure was not to have any minimum marks for viva voce. Therefore, prescribing minimum marks for viva voce was not permissible at all after the written test was conducted………There is no manner of doubt that the authority making rules regulating the selection can prescribe by rules the minimum marks both for written examination and viva voce, but if minimum marks are not prescribed for viva voce before the commencement of selection process, the authority concerned, cannot either during the selection process or after the selection process add an additional requirement/qualification that the candidate should also secure minimum marks in the interview. Therefore, this Court is of the opinion that prescription of minimum marks by the respondent at viva voce test was illegal.” (Emphasis supplied)
In Amlan Jyoti Borooah v. State of Assam and Others ((2009) 3 SCC 227), the Apex Court frowned upon the change in the order in which written test, physical test and interview for selection as Sub Inspector of Police was held and the Court took the view that the deviation could not have been done from the advertised order by holding the written test and interview first and then the physical test. In Mohd. Sohrab Khan v. Aligargh Muslim University And Others ((2009) 4 SCC 555), the Court held that recruitment must be held in accordance with the qualifications prescribed in the advertisement. In Y.V. Rangaiah And Others v. J. Sreenivasa Rao and Others (1983) 3 SCC 284, the Court held as follows:
“8. The contention on behalf of the appellants herein is that by the time the list was prepared in May, 1977 Rule 5 of the Andhra Pradesh Registration and Subordinate Service Rules was amended and the list prepared was in accordance with the rules then prevailing at the time of preparation, and therefore, there was nothing wrong with the preparation of the panel. It was further contended that the petitioners in the two representation petitions having not challenged the validity of the amendment to Rule 5 of the Andhra Pradesh Registration and Subordinate Service Rules, it was not open to them to challenge the list prepared in May, 1977 which is in accordance with the rules prevailing at that time.
9. Having heard the counsel for the parties, we find no force in either of the two contentions. Under the old rules a panel had to be prepared every year in September. Accordingly, a panel should have been prepared in the year 1976 and transfer or promotion to the post of Sub-Registrar Grade II should have been made out of that panel. In that event, the petitioners in the two representation petitions who ranked higher than respondents 3 to 15 would not have been deprived of their right of being considered for promotion.
The vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules. It is admitted by counsel for both the parties that henceforth promotion to the post of Sub-Registrar Grade II will be according to the new rules on the zonal basis and not on the State-wide basis and, therefore, there was no question of challenging the new rules. But, the question is of filling the vacancies that occurred prior to the amended rules. We have not the slightest doubt that the posts which fell vacant prior to the amended rules would be governed by the old rules and not by the new rules.”
In A. Manoharan And Others v. Union of India And Others ((2008) 3 SCC 641), the Apex Court took the view that the Regulations which were amended and having a prospective effect could not be applied retrospectively and any vacancy which had arisen prior to the coming into force of the said Amended Regulations must be filled up in terms of the law as was in force earlier.
39. In Dr. K. Ramulu And Another v. Dr. S. Suryaprakash Rao and Others (1997) 3 SCC 59, the question arose in the following factual matrix: Government took a decision not to fill up vacancies pending amendment of the Rules which had been repealed. After referring to Shanker San’s case (supra) and various other cases, the Court took the view that in view of the Rules and the facts of the case, it was open to the Government to have taken a decision not to make any appointment till the amendment of the Rules. Even there, the Court approved of the view that in regard to vacancies which were existing, eligible candidates were required to be considered in accordance with the prevailing Rules.
40. We have already referred to the decision in Maharashtra State Judges Association And Others v. Registrar General, High Court of Judicature at Bombay And Another ((2009) 1 SCC 569). The petitioner which was the State Judges Association, contended that unification of posts was to be made effective from 13.11.1991, which was the date on which the All India Judges’ Association (I) case ((1992) 1 SCC 119) was decided. Alternatively, it was contended that the unification into three categories should be from 31.3.1994. The Court took the view that what was directed in the All India Judges’ Association (I) case was that uniformity should be brought about in the designation of Judicial Officers. In the All India Judges’ Association’s case (II), namely (1993) 4 SCC 288, by order dated 24.8.1993, implementation of Law Commission recommendations to bring about uniformity in hierarchy, designations and jurisdiction of Officers both on the Civil and Criminal side, was ordered. It was held that only when the Shetty Commission recommended, there should be only three categories with pay scales, it became necessary to unify the multiple categories into three categories. Shetty Commission recommended applicability to the new pay scales with effect from 1.7.1996. Further, the Court took note of the fact that the Apex court in the All India Judges’ case, directed acceptance of the Shetty Commission recommendation for three cadres with effect from 1.7.1996. In the course of the Judgment, the Apex Court, inter alia, held as follows:
“24. Shetty Commission, as a corollary to its pay scale recommendation, recommended that there should be only three cadres: District Judges, Civil Judge (Senior Division) and Civil Judge (Junior Division), and multiple categories should be avoided. But, the recommendation made in the report dated 11-11-1999 was not binding, until it was accepted by this Court and Rules were framed in terms of it. The said recommendation was accepted in All India Judges’ Assn.(III) by Judgment dated 21-3-2002. By the said Order, this Court granted time upto 31-3-2003 to implement the said recommendations. Until the recommendation was accepted and Rules were framed, the integration/caderisation was a nebulous concept incapable of being claimed or enforced as a right.”
41. There can be no manner of doubt that the petitioners are justified in contending that their right to be considered for appointment in accordance with the qualifications as to age as were prescribed under the Rules and consequently their rights under the Notification, cannot be imperiled by the amendment in question. It is true that the right which the petitioners have is only a right to be considered for selection in accordance with the Rules and the Notification following the Rules.
42. This is the inevitable result of applying a doctrine which has evolved over a period of nearly three decades of judicial exposition of the legal principle applicable in such cases. We are unable to accede to the contention raised on behalf of the respondents that the said principle may not be available to a judicial post. Apart from the fact that the applicability of the doctrine must be decided on the basis of the rationale behind the doctrine and there is nothing to detract from the universality of its sweep, we also agree with the petitioners that any deviation from the law laid down by an unbroken line of decisions of the Apex Court would be at the expense of endangering the very concept of the rule of law. At the heart of the rule of law lies the concept of fairness. If we set our face against recognising a right with the petitioners, we would be doing so by recognising a point of difference between the aspirants for judicial service and applicants for other posts in respect of a matter where the distinction is irrelevant. In essence, we would end up being open to criticism validly levelled, we would think, of breaching the command of equality. We are fortified in the view we take in this matter by the decision of the Apex Court in Manjusree’s case (supra) which also related to judicial service.
43. We also see no merit in the contention raised by Shri A. Mohamed Mustaque that the doctrine has no application unless there has been an appointment or a select list has been drawn and at the end of the selection. While it may be true that in many of the cases cited, the amendment was enacted after the selection is over, in some cases, the amendment was brought about before the interviews were held. Also, we note that in these cases, the written test was conducted in October, 2007. The amendment is in June, 2008. That apart and more importantly, the principle which has been laid down is apposite even when an amendment is enacted after the selection process has begun and before the selection process has ended. This is the view which has been expounded by the Apex Court as is clear from the view taken by it which we have adverted to earlier. If we take a different view, we also cannot overlook the possibility of the doctrine being frustrated at the hands of the concerned bodies by timing the amendment by delaying the selection process.
44. We cannot overlook the fact that the High Court and the State Government must be aware of the legal principle which is established in this regard and were aware of the device open to the law giver, to deal with the situation in question. In a Republic governed by rule of law, it is important that the constitutional bodies observe the law and adopt methods which are available in law to deal with various situations that may arise. Knowing the law, as we must presume that they did, when the constitutional authorities still do not exercise the legislative power to apply the amendment retrospectively, we feel that we will be acting in the teeth of the law laid down by the Apex Court itself, if we were not to recognize the right of the petitioners to be considered for selection, ignoring the amendment in question.
45. We also do not see merit in the contention of Shri A. Mohamed Mustque that the grant of relief to the petitioners should be refused on the basis of the principle established in Indira Sawhney v. Union of India ((1992) Supp. 3 SCC 217). It is necessary to notice the facts of the case which arose in Indra Sawhney v. Union of India and Others (2000) 1 SCC 168. After the Judgment in the Ist Indra Sawhney’s case, all the States were obliged to identify the creamy layer. The Government of Kerala took time. There were contempt proceedings. However, instead of appointing a Commission, it passed an Act in the year 1995 which declared that there was no creamy layer in the State of Kerala. It was this declaration which was complained of as being contrary to the law laid down in the Ist Indra Sawhney’s case and also Asok Kumar Thakur’s case. In deciding the question, the Court, inter alia, considered as to what is the law declared and the directions given in the Indra Sawhney’s case. It also considered whether the declaration could be undone by the legislature by a retrospective validating Act containing a declaration, the effect of which was to say that there was no creamy layer in the State of Kerala. The Court after referring to the Judgments in the Ist Indra Sawhney’s case as also in Asok Kumar Thakur’s case, took the view that identification of the creamy layer was needed and the norms laid down by the Central Government or State Governments must apply not only for the immediate present, but also for the future. This was found to be the declaration of the law made in Indra Sawhney’s case and in Asok Kumar Thakur’s case. It was in this context that the Court took the view that the Court found that the declaration by the Legislature of the State was a mere cloak unrelated to the facts in existence and also contrary to the principles laid down by the Courts in both Indira Sawhney’s case and in Asok Kumar Thakur’s case. Various facts and circumstances are stated in the Judgment in support of the same. They included the fact that the Government requested the Court for time to appoint a Commission to identify the creamy layer. Thus, this was a case where the legislative exercise was specifically challenged as being contrary to the declaration of the law by the Apex Court. It also noted that the law violated Articles 14 and 16 of the Constitution and, therefore, it is constituted violation of the basic structure of the Constitution of India.
46. We have already noted that the acceptance of the Report of the Shetty Commission by the Apex Court would not amount to declaration of a law in the sense that the Court did not contemplate that without any amendment to the Rules, the qualification in question would come into play from the date of the Judgment or from a prospective date. We do not think that by conforming to the principles enunciated by the Apex Court itself, that a candidate has a right to be considered in accordance with the qualifications prevalent when the Notification is issued and with reference to the relevant date mentioned therein, we would be in any manner violating any principle of law declared by the Apex Court.
47. As far as the decision in Sahadeva Valigan v. State of Kerala 1988 (1) KLT 202, that was a case where the power to select the Munsiffs which was originally located with the Public Service Commission, was made over to the High Court. The petitioners who had applied pursuant to the Notification issued by the Public Service Commission and sat for the test, sought a direction to be considered either by the Commission or by the High Court. It was in such circumstances that the Court took the view that the applications submitted by the petitioners could not be revived by the High Court, and that the Commission had become functus officio in so far as those posts were concerned, as they had been withdrawn from the purview of the Commission, and that the High Court was the sole repository of selection. The Court took the view that it did not have the power to direct another constitutional authority to transfer the applications received by them to be processed by the Court. It was noted that the Court could not accept the applications received pursuant to the Notification issued by other authorities, as it would violate Rules 7 and 11 of the Special Rules. Of course, the Court took the view that the petitioners were only candidates who had not been selected or advised and that the applications did not create any legal right. We would think that it may not be appropriate to treat the said decision as apposite to deal with the facts situation in these cases. Further more, we would think that in the light of various decisions of the Apex Court which we have already referred to, no assistance can be drawn by the respondents from the said decisions.
48. The decision in State of M.P. And Others v. Raghuveer Singh Yadav and Others ((1994) 6 SCC 151) is relied on to contend that what the petitioners have, is a legitimate expectation which can be defeated by a change of policy or the amendment of the Rules. That was a case where after the conduct of the written examination for selection as Inspector in the Weight and Measures Department and pending interview, the Government amended the Rules and altered the qualification for eligibility. On the basis of the amended Rules, the Government withdrew the earlier Notification and intended to proceed with the recruitment afresh. The respondents had successfully challenged the amended Rules on the ground that the Rules could not be amended retrospectively. It was in this context that the Court held as follows:
“The candidates who had appeared for the examination and passed the written examination had only legitimate expectation to consideration of their claims according to the rules then in vogue. The amended rules have only prospective operation. The Government is entitled to conduct selection in accordance with the changed rules and make final recruitment. Obviously, no candidate acquired any vested right against the State. Therefore, the State is entitled to withdraw the notification by which it had previously notified recruitment and to issue fresh notification in that regard on the basis of the amended rules.”
But, in fact, the Court in paragraph (6) referred to P. Mahendran’s case (supra) and distinguished it as follows:
“6. The ratio in P. Mahendran v. State of Karnataka has no application to the facts in this case. In that case, for the posts of Motor Vehicles Inspector, apart from the qualifications prescribed, they issued additional qualifications and selection was sought to be made on the basis of additional qualifications. It was held that since recruitment was sought to be made on the basis of the qualifications prescribed, the additional qualifications prescribed thereafter have no retrospective effect to the recruitment already set in motion. Under those circumstances, additional qualifications were directed not to be taken into account for considering the claims of the candidates on the basis of the original advertisement. The ratio therein is clearly inapplicable to the facts in this case.”
Therefore, the Court reiterated the principle in Mahendran’s case. In fact, even the petitioners do not have a quarrel with the proposition that if the Notification itself had been withdrawn in this case in the light of the amendment and a fresh recruitment was resorted to, there may not be any room for complaint. In fact, this decision advances the case of the petitioners than the respondents. The facts of these cases attract the principle in Mahendran’s case and the other decisions of the Apex Court and of this Court on the same lines.
49. We also do not think that Shri A. Mohamed Mustaque is justified in contending that neither a writ of certiorari or mandamus would lie. No doubt, he would contend that judicial review of administrative action is not to be confused with appellate jurisdiction and it is concerned with finding out whether the impugned action is afflicted with illegality, irrationality or procedural impropriety. (See the decision in 1984 (3) All Eng. Reports Page 935). But, if the action is illegal, undoubtedly, interference may be justified. Also, a reference to the decisions leave us in no doubt that the Apex Court has evolved a principle of law that a person who has applied for a post, has a right to be considered for appointment on the strength of the conditions prescribed when he applied. The right which the candidate has, cannot be taken away by virtue of an amendment which purports to introduce qualifications, changes in qualifications or disqualifications without doing so with retrospective effect. It is clear that the amendment to the Rule prescribing the qualifications as to age came into force only in the year 2008. The words “at once” unambiguously convey the legislative intention of prospective operation. There is no retrospectivity intended or expressed.
50. No doubt, there is no right to be appointed, that is to say, it is always open to the appointing authority to justify a decision not to proceed with the selection process. But, that is not the position here. In this case, the process which was commenced by the issuance of the Notification pursuant to which the petitioners applied and successfully underwent the written examination, is not being terminated without appointments being made. On the contrary, the official respondents have very much drawn upon the very same Notification and candidates who have applied pursuant thereto, to complete the selection process on the strength of the amendment to the Rules by excluding the petitioners solely for non-fulfillment of the command of the amended provisions. This we consider, is plainly impermissible.
51. The upshot of the discussion is as follows:
We hold that the amendment to the Rules is prospective and will not affect the right of the petitioners to be considered in accordance with law, for the post of District Judge in respect of the six vacancies notified in the Notification. The decision to exclude the petitioners on the basis of the amendment is illegal. The petitioners have a right to be considered on the basis of their performance in the written test and interview.
52. There will be a declaration that the amendment to the Rule in question is prospective and does not affect the selection process initiated under the Notification issued in 2007 and the exclusion of the petitioners as per the said amendment is illegal. Consequently, we issue a writ of mandamus directing the High Court of Kerala and the State of Kerala to consider the claim of the petitioners also in accordance with law, for appointment as District Judge as against the six vacancies for which the Notification was issued. The appointments which have already been made being subject to the final decision in these Writ Petitions, will depend upon the decision to be taken in regard to the petitioners pursuant to this Judgment. The select list will be recast on the basis of the decision. A decision as aforesaid shall be taken within one month from the date of receipt of a copy of this Judgment.
The Writ Petitions are allowed as above.