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1984 DIGILAW 250 (KER)

N. Udayan v. Kerala Public Service Commission

1984-08-24

K.BHASKARAN, M.P.MENON

body1984
JUDGMENT Ag. C. J. Bhaskaran, J. 1. The petitioner was an applicant for the post of Judicial Magistrate of the Second Class in response to Notification No. DCI (5) 3836/80/BW, dated February 30, 1980, issued by the 1st respondent, the Kerala Public Service Commission (the P.S.C.) published in the Kerala Gazette, dated February 19, 1980, Ext. P-1 being the relevant extract there from; and he was assigned rank No. 28 in Ext. B-2 ranked list prepared by the P.S.C. after holding a written examination and interview for the candidates in accordance with the said notification. 2. The Special Secretary, Home (C) Department, in his letter to the P.S.C., dated July 30, 1979, had requested the P.S.C. to advise 39 candidates for being appointed Judicial Magistrates of the Second Class alternatively by transfer and by direct recruitment from the Bar according to the provisions of R.6(3) of the Kerala Criminal Judicial Service Rules, 1973 (the Special Rules) which require that vacancies would be filled up alternatively by direct recruitment from the Bar, and by transfer. The petitioner being a member of the Bar, his application for selection and appointment was to the post in one of the 19 vacancies to be filled up by direct recruitment. It is the admitted case that if there were only 19 vacancies to be filled up by direct recruitment, the petitioner who ranked 28 in Ext. P-2 ranked list, prepared by the P.S.C. would not be entitled to be advised, as by the operation of rules 14-17 in Part II of the Kerala State and subordinate Services Rules, 1958 (the general rules), his turn could not have been reached. 3. When matters stood like this, the P.S.C. invited applications for appointment to the post of Judicial Magistrate of the Second Class by notification published in the Kerala gazette, dated November 19, 1982 (Ext. P-3). The number of vacancies notified was; (a) ten by direct recruitment from the members of the bar; and (b) ten by recruitment by transfer. A note under the head "Number of vacancies" reads as follows: "Note.- Direct recruitment and recruitment by transfer will be made in accordance with R.6(3) of the Kerala Criminal Judicial Service Rules, 1973, i.e., vacancies will be filled up alternatively by direct recruitment and by transfer, the first appointment being by transfer. A note under the head "Number of vacancies" reads as follows: "Note.- Direct recruitment and recruitment by transfer will be made in accordance with R.6(3) of the Kerala Criminal Judicial Service Rules, 1973, i.e., vacancies will be filled up alternatively by direct recruitment and by transfer, the first appointment being by transfer. (Only as many persons as there are vacancies notified shall be appointed from the ranked list to be prepared in pursuance of this notification.)" 4. The thrust of the contention raised in the writ petition and argued by Sri T.R.G. Warrier, the counsel for the petitioner, is that Ext. P-3 notification and R.7(a) of the Special rules are unconstitutional, illegal, void and discriminatory in as much as they violate R.13 of the Kerala Public Service Commission Rules of Procedure, 1976 (the Rules of Procedure), which says that the ranked lists published by the Commission shall remain in force, for a period of one year from the date on which it was brought into force provided that the said list will continue to be in force till the publication of a new list after the expiry of the minimum period of one year or till the expiry of two years whichever is earlier. It was pointed out that Ext. P-2 ranked list was brought into force on 6th October 1981, and in terms of R.13 of the Rules of Procedure, it was to remain in force till the publication of a new list or till the expiry of two years, whichever happens earlier. That would mean, according to the petitioner, that Ext. P-2 list would be in force till 6th October 1983 unless a new list was published, and vacancies arising during that period had to be filled up by the candidates from Ext. P-2 ranked list. The submission made by Sri Warrier was that Ext. P-3 notification published on November 19, 1982, was clearly against this rule. 5. It is not the case of the petitioner that the rules of Procedure have been made by the P.S.C. under any specific provision in the Constitution, or any statute. P-2 ranked list. The submission made by Sri Warrier was that Ext. P-3 notification published on November 19, 1982, was clearly against this rule. 5. It is not the case of the petitioner that the rules of Procedure have been made by the P.S.C. under any specific provision in the Constitution, or any statute. Those rules, we are told, have been made for regulating the internal working of the P.S.C. While it would be open to the P.S.C. to make rules for regulating the internal working of the Commission, it would be too much to say that R.7(a) of the special rules framed by virtue of the authority derived from Art.234 read with Article 237 of the Constitution and S.3 of the Public Services Act is bad, for the simple reason that it is not in accordance with certain provisions contained in the rules of Procedure. The rules of procedure, to the extent they are inconsistent with the provisions of the Special Rules, have to give way to it (the Special Rules), and therefore the argument advanced by Sri Warrier that R.7(a) of the Special Rules is liable to be struck down for the reason that it offends R.13 of the Rules of Procedure has to be rejected, and we do so. 6. It was then submitted that the provisions of R.7(a) of the special rules is violative of Article 14 of the Constitution, inasmuch as in the corresponding rules pertaining to the Kerala State Civil Judicial Service, which in all other respects contain provision similar to those in the special rules, does not contain a restrictive clause as is found in R.7(a) of the special rules. In this contention also, we do not find any merit. For one thing, our approach should not be to compare one rule with the other and to reach a conclusion that the presence of a provision, which is absent in the other, would render the former violative of Article 14 of the constitution on the ground of discrimination or arbitrariness. It is certain open to the rule making authority to lay down that only as many persons as there are vacancies notified shall be appointed from the ranked list to be prepared in pursuance of the notification. It is certain open to the rule making authority to lay down that only as many persons as there are vacancies notified shall be appointed from the ranked list to be prepared in pursuance of the notification. There is a salutary purpose behind this restriction, and that is, such a restriction would enable to prevent progressively inferior and older candidates getting into the service keeping back younger and superior candidates who might be available for selection, if fresh applications are called for and selection made. In fact, that restriction would operate with respect to the selection and appointments to be made under the Kerala Civil Judicial Service Rules also unless by a positive action the High Court and the Government require the P.S.C. to advise from the ranked list candidates for filling up the vacancies not covered by the notification, pursuant to which the selection was made. Moreover, the Government appears to have appreciated the stand taken by the High Court with respect to the restrictions under the Special Rules and is found to be responsive to the suggestion made by the High Court that similar restrictions, as are found in R.7(a) of the special rules, should be introduced in the corresponding provisions of the Kerala Civil Judicial Service Rules. In paragraph 5 of the counter affidavit filed by the 2nd respondent, it is stated as follows:- "5. R.7(a) of the Criminal Judicial Service Rules is not arbitrary or illegal. It is framed in exercise of the powers conferred under Art.23A read with Art.237 of the Constitution of India. The High Court has proposed to amend the Civil Judicial Service Rules, 1973 by adding such a clause as second sentence in R.7(a) of the Criminal Judicial Service Rules to R.7(a) of the Civil Judicial Service Rules also to the effect that 'only as many persons as there are vacancies notified shall be appointed from the ranked list to be prepared in pursuance of the Notification'. When the amendment to the Civil Judicial Service Rules as proposed by the High Court is issued by the Government, the difference between the Kerala Civil Judicial Service Rules and the Kerala Criminal Judicial Service Rules will cease to exist............." 7. When the amendment to the Civil Judicial Service Rules as proposed by the High Court is issued by the Government, the difference between the Kerala Civil Judicial Service Rules and the Kerala Criminal Judicial Service Rules will cease to exist............." 7. Though Sri Warrier drew our attention to rules 4, 7 and 8 of the Madras State Judicial Service Rules, R.6(b) and 8 of the Kerala Subordinate and Magisterial Service Rules, 1962 and R.7 of the Kerala State Judicial Service Rules, 1966, we are not persuaded to hold that the restrictive provisions contained in R.7(a) of the special rules is either arbitrary or discriminatory, so as to violate Article 14 of the Constitution for the simple reason that restrictive provisions similar to those are not found or were not there in any of the rules mentioned above. 8. Adverting to grounds G and H in the writ petition, Sri Warrier submitted that there is no rationale behind the special provisions contained in R.7(a) of the special rules and that candidates for appointment to the Criminal Judicial Service have been singled out for hostile and discriminatory treatment. We do not think that there is any force in this contention. In the absence of any constitutional inhibition, it is always open to the Government to restrict the number of candidates to be advised by the Public Service Commission to the number of vacancies notified at the request of the High Court, in accordance with the provisions contained in the special rules in that behalf. For the foregoing reasons, we find no merit in the writ petition and it is accordingly dismissed; however, in the circumstances of the case, without any order as to costs.