Sahadeva Valigan v. State of Kerala — 1987 DIGILAW 658 (KER)

Judgment :- 1. A commendable stand by the Government, to assure independence of the judiciary, was taken in favour of an exclusive jurisdiction to be exercised by the High Court to select persons for appointment to the posts of Munsiffs in the Civil Judicial Service. The first step in the right direction in this regard was the amendment of the relevant regulations and rules to exclude the consultative jurisdiction of the Public Service Commission in respect of these officers and to regulate the process of selection only through the High Court. 2. The Supreme Court, on being informed about the transfer of jurisdiction from the Public Service Commission to the High Court, observed as follows: "We should record our sense of happiness at the said action so promptly taken by the State Government". (Vide Civil No. 2109/85 dated 20-4-1987 against the decision of this Court in ILR. 1985 (1) Kerala 516) 3. The petitioners in these two writ petitions, are aspirants for the posts of Munsiffs. Four of them are over-aged and are, therefore, not entitled to apply for selection pursuant to the notification issued by the High Court in 1987. But all of them had submitted applications to the Public Service Commission earlier when the Commission invited applications in July 1986. They were also allowed to sit for an examination conducted by the Commission on 6-12-1986. The results have not been published and possibly the Commission was not even bound to publish them. No further steps have, however, been taken by the Commission thereafter. The petitioners claim to be considered on the basis of those applications either by the Commission or by the High Court. 4. A learned single judge before whom these writ petitions came up for admission directed that these papers may be placed before the Chief Justice for orders regarding admission and the Chief Justice has directed that the two petitions be posted before us. 5. The Kerala Civil Judicial Service Rules, 1973 came into force on 18th September 1973. The service consisted of two categories of officers, Subordinate Judges and Munsiffs. All first appointments by direct recruitment or transfer to the category of Munsiffs are to be made from a list of approved candidates prepared by the Public Service Commission. 5. The Kerala Civil Judicial Service Rules, 1973 came into force on 18th September 1973. The service consisted of two categories of officers, Subordinate Judges and Munsiffs. All first appointments by direct recruitment or transfer to the category of Munsiffs are to be made from a list of approved candidates prepared by the Public Service Commission. These posts were not excluded from the purview of the Kerala Public Service Commission (Consultation) Regulation, 1957, though certain posts were expressly excluded in the Annexure to those rules. However, by an amendment dated 31-1-1987, published in the gazette on 24-2-1987, the posts of Munsiffs and Magistrates of the Second Class were not included in the Annexure. Thus, from 24-2-1987, "It shall not be necessary for the Commission to be consulted" for recruitment and appointment to the posts of Munsiffs and Magistrates of the Second Class. These posts went beyond the purview of the Commission. Following this amendment to these regulations, the Kerala Civil Judicial Service Rules, 1973 were amended by a notification dated 24th of March 1987 and published on 28th April 1987 under which the words 'The High Court' were substituted for the words The Public Service Commission' occurring in R.7 and 11. The result was that from that date the list of approved candidates for appointment to these two categories of posts, including Munsiffs, can be prepared only by the High Court and not by the Commission. The High Court, therefore, invited applications for appointment by direct recruitment from the Bar and for recruitment by transfer to the posts of Munsiffs, as per a notification published on 24th November ,1987. 6. Petitioners 1, 4, 5 and 6 in O. P. 10507/87 have either applied in pursuance of this notification or propose to apply before the last date, 24-12-1987. The other petitioners are ineligible to apply as they are over-aged on the 1st of July 1987. But all of them, as stated already had applied to the Commission earlier in 1986. 7. None of the petitioners challenge the validity of the amendment made to the Regulations or to the Civil Judicial Service Special Rules in 1987. Even though the amendment was challenged in OP. 10487/87, the counsel for that petitioner submitted before us that he was not pressing that contention. We shall, therefore, proceed to consider the contentions advanced and pressed before us. 8. Even though the amendment was challenged in OP. 10487/87, the counsel for that petitioner submitted before us that he was not pressing that contention. We shall, therefore, proceed to consider the contentions advanced and pressed before us. 8. The petitioners contend that the amendment to the Kerala Civil Judicial Service Special Rules made in 1987 does not have retrospective operation and, therefore, this amendment can take effect only from 28th of April 1987 and in respect of vacancies which arise thereafter. Consequently, it is said, that in respect of vacancies notified by the Public Service Commission, as early as 1986, and in respect of which steps have already been taken by the Commission, the Commission alone and not the High Court can process those applications and prepare the list of approved candidates. Thus when those applicants before the Commission, including the petitioners have already sat for the examination and an oral interview alone remains, the Commission itself should be compelled to complete the entire process and prepare the list of approved candidates. They plead further that even if the Commission cannot take any further steps now in view of the amendment divesting their jurisdiction, appropriate directions can be issued to the Commission to send the applications received by them to the High Court and the High Court should be compelled to consider those applications also from the stage at which they have reached. 9. We think that these aspects are concluded against the petitioners by two decisions of the Supreme Court. 10. In I.J. Divakar v. Govt. of A.P., (1982) 3 SCC. 341), in practically identical circumstances, the Supreme Court held thus: "The only contention urged was that at the time when the advertisement was issued the post of Junior Engineer was within the purview of the Commission and even if at a later date the post was withdrawn from the purview of the Commission it could not have any retrospective effect. There is no merit in this contention and we are broadly in agreement with the view of the Tribunal that inviting the applications for a post does not by itself create any right to the post in the candidate who in response to the advertisement makes an application. He only offers himself to be considered for the post. His application only makes him eligible for being considered for the post. He only offers himself to be considered for the post. His application only makes him eligible for being considered for the post. It does not create any right in the candidate to the post. If therefore, on September 14, 1979, when G.O. No. 646 was issued the appellants had no right to the post, at least they cannot be heard to contend that it was improper for the first respondent to withdraw the post of Junior Engineer from the purview of the Commission", 11. In State of Andhra Pradesh v. T. Ramakrishna Rao. (AIR. 1972 SC. 2175), it is necessary to advert to the short facts to understand the purport of the decision. In November 1968, the Commission invited applications under R.5 of the State Judicial Service Rules for appointment to sixty notified vacancies. Applications were received. But the rule itself was struck down by the High Court. Thereafter, a new rule was inserted. The Commission invited fresh applications, for 200 notified posts instead of the 60 notified earlier. The Commission desired to hold examination for the applicants who submitted applications under the new rule. The High Court turned down these proposals and directed the Commission to hold a separate examination for those who bad applied in 1968 under the old rule in respect of the original 60 vacancies and to call for separate applications and hold separate examination for the remaining 140 vacancies. It was this direction that was challenged by the State of Andhra Pradesh before the Supreme Court. The Supreme Court set aside the judgment of the High Court and held thus: "12. We fail to see either the justification or the necessity for such a direction. The unamended R.S, as it stood in 1968, having been held invalid, the notice issued thereunder by the Commission calling for applications, the applications received in pursuance of that notice and the examination sought to be held thereunder and indeed all actions taken by the Commission thereunder fell through and must be regarded as invalid. The rule having then been struck down, the only way the Commission could prepare a list for appointment would be under the amended R.5. Obviously, that could only be done by calling for fresh applications and holding an examination under the amended rule, there being no other rule available to the Commission after Rule S bad been struck down. The rule having then been struck down, the only way the Commission could prepare a list for appointment would be under the amended R.5. Obviously, that could only be done by calling for fresh applications and holding an examination under the amended rule, there being no other rule available to the Commission after Rule S bad been struck down. In these circumstances, there was no question of any breach of Art.16, firstly, because there were no valid applications before the Commission since the applications filed by the respondents and others in 1968 were bad as they had been called and made under an invalid rule. Secondly, the respondents had not acquired any right by merely applying for the posts either under that rule or otherwise, to be selected for the posts. The Commission, therefore, was perfectly justified in treating the earlier applications of the respondents as invalid on the ground that they had been invited under an illegal rule, and calling for fresh applications and holding a fresh examination in respect of all the 200 vacancies. There was thus no question of any breach of Art.16, nor of any violation of any right of the respondents as none was acquired by them. Equally, there was no question of the amended Rule S being prospective or retrospective as the Commission had to act afresh under the amended rule, the unamended rule having been struck down and there being, therefore, no basis on which the applications of the respondents made in 1968 could be treated as valid applications' 13. The directions given by the High Court being thus unsustainable have to be set aside. In our view, the Commission and the State were perfectly justified in fixing a date for the examination and calling for fresh applications for all the vacancies to enable the Commission to prepare as approved list under and in accordance with the provisions of the amended R.5," 12. The petitioners were only candidates for appointment, who offered themselves for selection. They have not been selected by any authority; nor were they advised by the Commission for appointment before the amendment was made in April 1987. The submissions of applications for the posts do not create any legal right in the applicants. They do not create any right to the post either. The amendment thus does not affect any of their rights. The submissions of applications for the posts do not create any legal right in the applicants. They do not create any right to the post either. The amendment thus does not affect any of their rights. The question whether the amended rule is retrospective or not does not arise for consideration. 13. Moreover, there is no power vested in the Commission to make any selection for appointment to the post of Munsiffs after 28-4-1987. The power is vested only in the High Court and the High Court alone can, therefore, invite applications and make the selection. The applications made earlier to the Commission and all steps taken by the Commission "fell through and must be regarded as invalid". The applications cannot be revived by the High Court. 14. The Commission has become functus officio so far as these posts are concerned, as they have been withdrawn from the purview of the Commission. In this view, even though the petitioners had submitted applications to the Public Service Commission pursuant to the notification in 1986, the Commission can no longer legally and validly proceed with those applications and cannot conduct an interview based on the results of the written examination they held. 15. When the amendment to the rule is not in challenge; when the Commission is no longer the authority to make selection for the appointment of Munsiffs, the Commission cannot proceed with any stage in that process of selection. The fact that a selection process had commenced earlier does not give jurisdiction to the Commission, when under the statutory rule, no such power exists. 16. The provisions of the Civil Judicial Service Rules, as amended also lead to the same conclusion. R.7 states that the High Court shall from time to time hold examinations, written and oral, after notifying the number of vacancies to be filled up and shall make separate lists of persons considered suitable For appointment by direct recruitment and by transfer and shall forward the lists for the approval of the Governor. Rule H prescribes the eligibility for applying when applications are invited by the High Court. The statutory scheme is that it is for the High Court to invite applications, to hold examinations and consider the suitability of persons for being appointed. The statutory duty is thus cast on the High Court alone. Rule H prescribes the eligibility for applying when applications are invited by the High Court. The statutory scheme is that it is for the High Court to invite applications, to hold examinations and consider the suitability of persons for being appointed. The statutory duty is thus cast on the High Court alone. The rule does not envisage any power being exercised by the Commission in respect of these posts withdrawn from its purview. The High Court is the sole repository of selection and preparation of list of approved candidates for appointment to the posts of Munsiffs and Magistrates of the Second Class. Therefore, it is difficult to accede to the petitioners' contentions that the Public Service Commission may be directed to continue with the selection process which they have commenced earlier. 17. When the Public Service Commission does not have the power to continue with the process of selection commenced earlier, after April 1987, there is no question of a direction being given to the Public Service Commission to send the applications received by them to the High Court. There is no power, statutory or otherwise, vested in the High Court to issue any direction to another constitutional authority to transfer applications received by them for being processed by the High Court now. The High Court can consider the claims based on a valid application. The valid applications under the rule can only be those submitted pursuant to a notification of the High Court. The High Court cannot accept applications received pursuant to notification issued by other authorities. This will violate R.7 and 11 of the Special Rules. When the constitutional exercise of power under Art.226 is to keep every authority within the bounds of law, no direction can be issued which plainly violates the provisions or of any Statute or rule made thereunder. 18. Considerable reliance was, however, placed on a Division Bench ruling of this Court in V. R. Velayudhan v. The Secretary to the Government, ILR 1985 (2) Kerala 81. In the light of the clear pronouncements of the Supreme Court in the two decisions referred to above, we are afraid that this decision cannot help the petitioners. We are also of the view that this decision does not apply to the facts and circumstances of these cases. In the light of the clear pronouncements of the Supreme Court in the two decisions referred to above, we are afraid that this decision cannot help the petitioners. We are also of the view that this decision does not apply to the facts and circumstances of these cases. The counsel for the petitioners, however, stressed that this Court has held that 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". In that case the Commission had advised the appointment of a candidate and the direction by the High Court was to appoint that man already advised. That decision did not consider the effect of an amendment made pursuant to the constitutional mandate contained in Art.234 of the Constitution. Art.234 provides thus: "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." When appointments of persons other than District Judges to the judicial service of the State can be made only in accordance with the rules so made under Art.234 after consulting the Public Service Commission and the High Court and when such rules are made accordingly, it cannot be said that this Court has ruled that an appointment has to be made disregarding those rules or that no such rules could be made. This Court has not held that the power to make rules or amend rules under Art.234 of the Constitution has been lost, even temporarily, simply because the selection process has already commenced. 19. The second point urged is that the notification issued by the High Court prescribes the eligibility to apply with reference to 1st July 1987, the year in which the applications are invited by the High Court, as enjoined by R.11 of the Special Rules. The petitioners contend that 1st July 1987 be read as 1st January 1987. Reliance is placed on Public Services (Date for determination of age for eligibility for appointment) Rules, 1977. R.2 thereof reads thus: "2. Date for determination of age for eligibility for appointment to public services. The petitioners contend that 1st July 1987 be read as 1st January 1987. Reliance is placed on Public Services (Date for determination of age for eligibility for appointment) Rules, 1977. R.2 thereof reads thus: "2. 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 Service, 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." 20. It is, therefore, contended that the reference to 1st day of July in rule II of the Special Rules stands modified as 1st day of January in view of the above general rule. We cannot agree. This rule relating to the determination of the age for eligibility for appointment to Public Service was made in exercise of the powers conferred by sub-section (1) of S.2 of the Kerala Public Services Act, 1968. It does not show that it was issued in exercise of the powers conferred under Art.234 of the Constitution. The consultation enjoined under Art.234 is a constitutional dictate which applies not only when the rule is made under that constitutional provision but also every time when that rule is amended. In other words, the amendment of a rule under Art.234 of the Constitution also requires that it is preceded by a consultation with the Public Service Commission and with the High Court This general rule relating to the determination of age for eligibility for appointment to Public Services cannot, therefore, apply to appointment of persons in the judicial service of the State as it is not made in conformity with the requirements insisted under Art.234. This general rule cannot, therefore, be pressed into service as a modification of the rule made under Art.234 in respect of the civil judicial service of the State. 21. This general rule cannot, therefore, be pressed into service as a modification of the rule made under Art.234 in respect of the civil judicial service of the State. 21. It is, however, contended by counsel for the petitioners that this general rule regarding determination of age in all cases has been made by the State Government and, therefore, it should be presumed that they were aware of the relevant provisions of the Constitution and that it should be assumed that consultation required under Art.234 has been made. It is not possible to accept this contention for the simple reason that in the gazette publication, it is specifically stated that these rules are made in exercise of the powers conferred by sub-section (1) of S.2 of the Public Services Act, 1968. There is no mention that this was issued in exercise of the powers conferred by Art.234 of the Constitution whereas the other amendments to the civil judicial service roles specifically mention that they are in exercise of the powers under Art.234 of the Constitution. As we see it, in all cases where the power to make rules is invoked under Art.234 of the Constitution, there is a specific mention of this constitutional provision when the rules are so made. We are aware that if in truth, there is power to make rules, the fact that the source of power is mentioned wrongly will not affect the legitimacy of the rules. If the source of power to make rules is expressly mentioned by the rule making authority, it can be assumed, until the contrary is shown that the conditions necessary for the exercise of that power have also been satisfied, When the power can be exercised only under certain conditions, the non-mention of that source of power by the rule making authority, indicates that the said power was not exercised and that those conditions for the exercise of that power were not fulfilled. In the present case this general rule regarding determination of age in all cases did not mention that the rule was made under Art.234 of the Constitution, while it referred to the Public Services Act alone. It is, therefore, clear that this rule was not made under Art.234 and cannot amend the Kerala Civil Judicial Service Rules. 22. In the present case this general rule regarding determination of age in all cases did not mention that the rule was made under Art.234 of the Constitution, while it referred to the Public Services Act alone. It is, therefore, clear that this rule was not made under Art.234 and cannot amend the Kerala Civil Judicial Service Rules. 22. Art.245 of the Constitution, empowering the legislature to make laws, and Art.309, providing for regulating the conditions of services of persons appointed to public services, are themselves subject to the provisions of the Constitution. Art.234 applies to recruitment of persons other than District Judges to the judicial service. Naturally therefore, Art.245 and Art.309 have to yield to Art.234 of the Constitution. No law or rules made under Art.245 or 309 of the Constitution can affect the rules made under Art.234. The rule made under S.2 of the Kerala Public Services Act has to give place to the rules made under Art.234. On this ground also, the contention that the words "1st of July" in the special rules should be read as 1st of January has to be rejected. 23. On this aspect, there was yet another contention raised by the counsel for the petitioners based on R.11 (1) of the Special Rules which reads thus: "No person shall be eligible for appointment to category 2 but direct recruitment unless be is a graduate in Law or Barrister-at-Law and an advocate having practice at the Bar for a period of not less than five years and has not completed 35 years of age on the first day of July of the year in which applications are invited by the High Court". 24. The contention is that the Ist day of July of the year in which applications are invited should be understood as the year in which valid applications are invited. It is submitted that applications were received by the Commission in 1986 and the 1st day of July of that year should have been taken as the crucial date for fixing eligibility with reference to age. 25. R.11 only prescribes the qualifications of the applicants who respond to the notification issued by the High Court and the eligibility clause applies with reference to the year in which those applications are invited. 25. R.11 only prescribes the qualifications of the applicants who respond to the notification issued by the High Court and the eligibility clause applies with reference to the year in which those applications are invited. In the present case the applications were called for by the High Court in 1987 and applying R.11 therefore, the eligibility clause should relate to the first day of July 1987. We cannot, therefore, accede to the contention of the petitioners that all persons who have crossed the age of 35 years on the 1st day of July 1987 but was within that age on the 1st January 1987 will be entitled to apply for the post of Munsiffs pursuant to the notification by the High Court in 1987. 26. The next contention urged is that in the notification issued by the High Court the scheme of written and oral examination is contained in Para.10. The written examination is to consist of three papers carrying a maximum of 100 marks each. The time for each paper shall be three hours. There shall be an oral examination carrying maximum of 50 marks for deciding the candidate's general knowledge, grasp of general principles of law, analytical ability and suitability for appointment as Munsiff. There is another clause which reads thus: "Only candidates who secure not less than 45% marks in each of the papers of the written examination and 30% of the marks for the oral examination shall be eligible for appointment; provided that the minimum marks required for pass in each paper of the written examination shall be 35% for candidates belonging to Scheduled Castes/Scheduled Tribes. Fraction, of half or more than half shall be regarded as full mark. Less than half shall be ignored." The complaint is only regarding clause (3) extracted above. There is no complaint that the marks fixed for the written and oral examinations are on the high side. The grievance is only regarding the 30 per cent, i. e.15 marks insisted for the oral interview for eligibility for appointment. 27. Considerable reliance was placed by the counsel for the petitioners on the latest decision of the Supreme Court in Durga Charm v. State of Orissa (AIR. 1987 SC. The grievance is only regarding the 30 per cent, i. e.15 marks insisted for the oral interview for eligibility for appointment. 27. Considerable reliance was placed by the counsel for the petitioners on the latest decision of the Supreme Court in Durga Charm v. State of Orissa (AIR. 1987 SC. 2267) and on a decision of this court in State Bank of Travancore v. Soumini (1984 KLT.135) to contend that the minimum mark in an oral interview can only be fixed by the rules. We think that it is premature now for this court to consider this question. At the moment it is only an academic exercise. We do not think that the petitioners themselves have only low estimate of themselves and do not expect to reach at least the minimum standards demanded. The High Court is in search of the best talent to serve the judiciary and in this search for excellence, the petitioners who apply, can, of course try to reach that grade. As we see it, when the rules have empowered the High Court to hold examinations both written and oral and make a list of approved candidates, what the High Court did was to inform all the candidates the procedure to be adopted for making the selection. This is so done in advance and communicated to all the candidates so that there is no reason for complaint that adhoc principles were followed resulting in arbitrariness. When the object is to select the best, subject to the reservations available to certain backward communities and Scheduled Castes, and Scheduled Tribers where the principles of selection are prepared and published in advance for the information of all concerned, it cannot be said that the High Court has adopted an arbitrary procedure. In any case, it is unnecessary to express any further when some of the petitioners have yet to submit their applications and some cannot even apply. 28. It is lastly contended that the dates of birth of petitioners 2 and 3 in OP. No. 10507 are 1-5-1949 and 17-6-1949, that they were within the age limit when they submitted applications before the Public Service Commission and as they are now over-aged they are ineligible to make fresh applications. The counsel submitted that the seventh petitioner is also in the same category. No. 10507 are 1-5-1949 and 17-6-1949, that they were within the age limit when they submitted applications before the Public Service Commission and as they are now over-aged they are ineligible to make fresh applications. The counsel submitted that the seventh petitioner is also in the same category. The counsel, therefore, prayed that a direction similar to those issued by the Supreme Court in 1982 may be issued in these two cases as well. The Supreme Court bad in that decision in State of Andhra Pradesh v. T. Ramakrishna Rao, (AIR. 1972 SC. 2175) issued a direction that if any candidate who have applied earlier become age barred later by reason of the delay in holding the examination, he should not be disqualified from writing the examination if he bad the certified age at the time of the application. The Supreme Court was dealing with the same authority who invited applications twice. In the cases before us, we are dealing with applications received by two authorities, the Commission and the High Court. A direction cannot, therefore, be issued that the age should be fixed with reference to the date of application to the Commission. That will do violence to the rule itself. When the eligibility for applying is fixed under the rule there cannot be a direction from this court that the rule may be violated. 29. The petitioner in O. P. No. 10487 of 1987 contended that he is an handicapped person who was entitled to an age relaxation till be attained 38 years and that the present notification does not grant any such concession in favour of that class. It is not for this Court sitting on the judicial side to decide whether handicapped persons should have some special privileges regarding the age limit. That is beyond the judicial power of review by this Court at this stage. There is thus no merit in the two writ petitions and we dismiss the same. Dismissed.