VELAYUDHAN v. SECRETARY TO GOVT — 1985 DIGILAW 70 (KER)

Judgment :- 1. A question of considerable importance in service law arises for consideration in this case. A vacancy was notified to the Public Service Commission as, when the vacancy arose, under the Government Order governing appointments to the vacancy, nobody in service was entitled to be promoted and appointed in the vacancy. But before the candidate recruited by the Public Service Commission was actually appointed in the vacancy, the Government Order governing appointments to the vacancy was amended and persons in service became entitled for promotion to the post. The question is whether the appointment of the Public Service Commission recruit is bad in law and, on the basis of the subsequent amendment to the Government order, any person in service who has become entitled for promotion can insist that he should be given appointment in the vacancy. 2. The petitioner in the original petition is the appellant in the writ appeal. The appellant is an Electrician in the Government Transport and Equipment Organisation, Muvattupuzha. He is a Diploma Holder in Electrical Engineering and has experience in Automobile Workshop. A post of for man became vacant from 22-12-1976. As per G O. (MS) No.13/75/DD dated 29-1-1975 (Ext. RI), which governs the appointments in the establishment, nobody was entitled to be promoted and appointed in the vacancy. Hence, on 17-1-1977 the vacancy was notified to the Kerala Public Service Commission. Thereafter, by G.O (MS) No. 91/78/DD dated 14-6-1978 (Ext. P1) revised notifications and methods of appointments for the post of Foreman were fixed. After the issue of Ext. P1, the General Foreman of the establishment sent Ext. P2 communication to the Ist respondent-State pointing out that the appellant-petitioner can be promoted and appointed as Foreman in the vacancy. As the Ist respondent did not do anything in the matter, the appellant-petitioner approached this Court with the original petition claiming the vacancy of Foreman and also for staying the appointment, if any, of Foreman by direct recruitment. 3. Notice on the original petition was ordered on 2-8-1978 On the very same date, this Court ordered an interim stay of appointment to the post of Foreman which, according to the 1st respondent, was received only on the afternoon of 11-8-1978. Before that, on the forenoon of 11-8-1978 the 2nd respondent, advised by the Public Service Commission, was appointed as Foreman. Before that, on the forenoon of 11-8-1978 the 2nd respondent, advised by the Public Service Commission, was appointed as Foreman. The appellant then amended the original petition to challenge the appointment of the 2nd respondent (Ext. P3). 4. A counter-affidavit was filed on behalf of the Ist respondent-State justifying the appointment of the 2nd respondent and contending that the appellant has no right to claim the vacancy in question as on the date of occurrence of the vacancy the appellant was not entitled to be promoted and appointed in the vacancy and as the vacancy was already notified to the Public Service Commission before the appellant became entitled for promotion and appointment in the vacancy as per the Government Order dated 14-6-1978. 5. The learned judge who heard the original petition, dismissed the same holding: "Though the interview itself is subsequent to the amendment of the Rule, if appears to me that the Public Service Commission was perfectly right in issuing the advice on 4-7-1978 on the basis of the tests conducted by the Public Service Commission and the interview held on 20-6-1978. The second respondent having been so advised, I see no reason as to why the first respondent could not appoint him in the post for which the Public Service Commission has advised him." 6. It is the above judgment of the learned Single Judge that the appellant has challenged in this writ appeal. The learned counsel for the appellant contended that as the Government Order governing appointment to the post of Foreman was amended before the 2nd respondent advised by the Public Service Commission was actually appointed and, as the above appointment was against the rules of appointment as it stood on the date of appointment, the above appointment was bad in law and the learned judge ought to have set aside the appointment and found that the appellant was the person who ought to have been appointed in the vacancy of Foreman. It was also pointed out that, at any rate, the appointment of the 2nd respondent made when there was already a stay order from this Court against appointment in the vacancy is bad for that reason also. It was also pointed out that, at any rate, the appointment of the 2nd respondent made when there was already a stay order from this Court against appointment in the vacancy is bad for that reason also. The learned counsel for the 2nd respondent contended that the claim of the appellant for the post of Foreman has to be considered on the basis of Government order governing appointment to the post as it stood on the date of occurrence of the vacancy. It was also contended that the Government Order issued after the vacancy was notified to the Public Service Commission cannot affect the recruitment made by the Public Service Commission and the appointment of the candidate or candidates recruited. Hence, according to the learned counsel the appointment of the 2nd respondent is not hit by Ext. P1 Government Order which makes the appellant entitled to be promoted as Foreman. 7. In James Thomas v. Chief Justice (1977 KLT. 622 FB.) one of the controversies that came up for consideration was whether the law to be applied was what was applicable on the date of occurrence of the vacancy or at the time of making the appointment. The Full Bench referred to the Government Order dated 28-9-1957 and held: "This contains a clear indication that the general rule is to decide promotions with respect to the time of the occurrence of the vacancy and not of the making of the appointment." The Full Bench then referred to another Government Order dated 20-4-1959 and further held: "In the light of these, we are of the view that there is no warrant to hold that eligibility for promotion must be judged with reference to the date of the appointment, and not of the occurrence of the vacancy. We think the general rule to be that promotions should be made vis a vis the date of occurrence of the vacancy and not of the date of making the appointment " In Murugan v State of Kerala (1982 KLT. Short Notes 45) Khalid J. as he then was, has held: "Therefore, appointment to the post is the last stage in a slow gradual process. The word 'recruitment' or recruited' has a connotation entirely different from the word 'appointment'. It is not necessary to seek the assistance of a dictionary for this purpose. Short Notes 45) Khalid J. as he then was, has held: "Therefore, appointment to the post is the last stage in a slow gradual process. The word 'recruitment' or recruited' has a connotation entirely different from the word 'appointment'. It is not necessary to seek the assistance of a dictionary for this purpose. Recruitment signifies enlistment, acceptance, selection or approval for appointment, all stages preceding appointment. The two words cannot be said to mean the same thing. Appointment takes effect when the person appointed for the first time discharges his duty. This is in contradistinction to the concept of the word 'direct recruitment'. One is the finale of the process that starts from the other. The direction contained in the note that direct recruitment to the categories mentioned therein need be resorted to only in the absence of suitable hands. This clearly postulates the initiation of recruitment process and not the appointment culminating in the said process; in other words, if all the necessary processes had been completed the amended Special Rules do not prevent the appointment of a candidate in the select list even to a vacancy that arises after the Special Rules". In K. G Gopalakrihsna Pillai and others v. Teddy Roy Perira (O. P. No. 879 of 1973) Eradi, J., as be then was, has held: "Even apart from the above aspect, after the qualifications and method of appoint ment to the posts of Foreman Instructors had been prescribed by Special Rules it was not open to the State Government to issue an executive direction that appointments for filling up the vacancies that had arisen prior to the coming into force of the Special Rules should be made not in accordance with the Special Rules but in accordance with the G. O. Ext. P-2 which is totally inconsistent with the Special Rules. Once the Special Rules had come into force any appointment could thereafter be effected only in conformity with the provisions contained in the Rules irrespective of the question as to the date of occurrence of the vacancy which is sought to be filled up. Any departure from this principle would manifestly contravene the principle of equality before law enshrined in Art.14 and 16 of the Constitution". In Gopalakrishna Pillai's case, on 21-12-1959 the Government issued Ext. Any departure from this principle would manifestly contravene the principle of equality before law enshrined in Art.14 and 16 of the Constitution". In Gopalakrishna Pillai's case, on 21-12-1959 the Government issued Ext. P-2 order insisting that for the post of Foreman Instructors in the Craftsman Training Scheme, Diploma in Engineering is an essential qualification instead of the qualification of a certificate in Engineering which was being insisted. On the basis of this, certain certificate holders were denied promotions to the posts of Foreman Instructors. They filed original petitions before this Court. A Diploma Holder who was given only provisional promotion also approached this Court complaining that he was not given a regular promotion even though he bad the qualification insisted by the G.O. dated 21-12-1959. The State Government in the counter-affidavit filed took up the position that they were soon issuing special rules which will enable certificate holders also to be promoted as Forman Instructors and the promotions challenged in the original petitions were only temporary promotions and regularisation of those promotions will be made only after the issue of the special rules. Accordingly, this Court did not interfere with the promotions challenged in the original petitions and the original petitions were disposed of with a direction that special rules should be framed before 31-5-1970. Accordingly, special rules were framed and issued as per notification dated 29-11-1971. But, thereafter, on 23-11-1972 a Government Order was issued directing that the special rules would come into effect from 29-11-1971 and vacancies which arose before that should be filled up in accordance with the G.O. dated 21-12-1959 It was under the above circumstances that O.P.No. 879 of 1973 was filed. The judgment in O. P. No. 879 of 1973 was confirmed in Writ Appeal No. 413 of 1975. But the facts of that case being different from the facts of this case, the decision in O. P. No 879 of 1973 affirmed in Writ Appeal No. 413 of 1975 cannot be applied in this case as the same is not applicable to the facts of this case. 8. A vacancy which arises in a higher cadre in a service has to be filled up either by promotion from the lower cadre in the same service or by direct recruitment. This depends upon the rules governing the matter. 8. A vacancy which arises in a higher cadre in a service has to be filled up either by promotion from the lower cadre in the same service or by direct recruitment. This depends upon the rules governing the matter. If it is a vacancy which has to be filled up by promotion from the lower cadre the eligibility has to be determined in accordance with the rules. Only those who were eligible on the date of occurrence of the vacancy can claim the post. Nobody who has no right to be promoted in that vacancy on the date of occurrence of the vacancy, even if he subsequently becomes entitled for the post, can have a legal right to insist that he should get the post. In the case of direct recruitment, the relevant date for determining whether a candidate is qualified or not is that which will be mentioned in the notification inviting applications. The date of occurrence of the vacancy will not at all be relevant as in the case of a promotion from the lower cadre in the same service. In Government service, filling up of a vacancy by direct recruitment in the normal course is through the Public Service Commission. The Government will notify the vacancy to the Public Service Commission and. the Public Service Commission will invite applications, conduct the tests, interview the candidates, make the selection and advise the required number of candidates. The Government or the Appointing Authority, if the Appointing Authority is different, will issue appointment orders to the candidates advised by the Public Service Commission. In this case, the vacancy was notified to the Public Service Commission on 17-1-1977 and the Public Service Commission made the recruitment. The Public Service Commission advised the appointment of the 2nd respondent as per their letter dated 4-7-1978. Before that, by GO. (MS) No. 91/78/DD dated 14-6-1978 a revised method of appointment was fixed. As per this G.O. the appellant-electrician could be promoted and appointed as Foreman. This is a right which the appellant had not at the time when the vacancy arose and when it was notified to the Public Service Commission. The Public Service Commission is a constitutional functionary which is invested with the responsibility of making recruitment to the State Government service. This is a right which the appellant had not at the time when the vacancy arose and when it was notified to the Public Service Commission. The Public Service Commission is a constitutional functionary which is invested with the responsibility of making recruitment to the State Government service. Once the machinery for recruitment has been set in motion by notifying the vacancy to the Public Service Commission it cannot be brought to a grinding halt by amending the special rules and making the recruitment a futile exercise. So, the Government Order dated 14-6-1978 which makes the appellant-electrician entitled for promotion as Foreman cannot stand in the way of the recruitment made by the Public Service Commission. The vacancy in question has to be filled by appointing the 2nd respondent who was advised by the Public Service Commission in spite of the fact that the Government Order dated 14-6-1978 provided for appointment by promotion of electricians as Foreman. 9. In this view of the matter, the judgment of the learned Single Judge dismissing the original petition does not call for any interference in this writ appeal. The Writ Appeal is hence dismissed. There will be no order as to costs.