Mohammed Najim v. State of Kerala — 1993 DIGILAW 377 (KER)

Judgment :- Viswanatha Iyer, J. The Kerala Public Service Commission issued notification dated March 12,1985 inviting applications for the post of Amin in ten districts, including Kannur, Ernakulam and Idukky. Four vacancies were notified in Kannur, and one in Idukki, while the number of vacancies in Ernakulam remained to be ascertained. The petitioners in these five writ petitions applied for the post, for which an examination was held, and eventually select lists prepared and published in 1988, in which the petitioners were included, some of them with the topmost ranks. Petitioners were nevertheless not appointed, because of an amendment to the statutory rules by the government order dated December 6,1985, a copy of which is Ext.P2 in O.P.No.9879 of 1989. Petitioners have filed these Original Petitions with prayer for direction to the respondents to appoint them in the vacancies which existed on 12-3-1985, in accordance with the select lists prepared by the Public Service Commission. 2. The post of Amins is borne in category 7 of class I of the Kerala Judicial Ministerial Service governed by the Kerala Judicial Ministerial Service Rules, made under S.2 of the Kerala Public Services Act, 1968. Appointment of Amins was previously by promotion of qualified Attenders in Class II of the service, and in the absence of suitable and qualified attenders, by transfer of qualified last grade servants in the same unit; and by direct recruitment, a ratio of 1:1 being maintained between promotion/ transfer and direct recruitment. This was altered by the amendment Ext.P2 dated December 6,1985 with retrospective effect from February 24,1981. Amins were thereafter to be appointed by promotion of Attenders under Class II, or if no suitable or qualified attender was available by recruitment by transfer from the members of the Kerala Last Grade Service of the same district unit; or if no suitable and qualified hands were available in these categories, by direct recruitment. The consequence of this rule was that no Amin could be appointed by direct recruitment unless there was no suitable and qualified Attender to be promoted, or last grade servant in the same district unit to be transferred, and posted as Amin. It was because of this amendment which operated from February 24,1981 that the petitioners could not be appointed as Amins despite the high rank obtained by many of them in the select lists. 3. It was because of this amendment which operated from February 24,1981 that the petitioners could not be appointed as Amins despite the high rank obtained by many of them in the select lists. 3. Petitioners contend that the selection process having been set in motion, it had to be completed and appointments made from the select lists so prepared, to the vacancies which existed on the date of the notification namely March 12,1985. The retrospective effect given to the rules has to be ignored and the appointments made on the basis of the rules as they existed on the date of the notification. It is stated that the amendment cannot take away or impair vested or accrued rights, the premise being that the applicants have a vested right to have the appointments made from out of the select lists, when once the selection process has been set in motion. Support for these propositions is sought to be drawn from the decisions of this court in Velayudhan v. State of Kerala, 1985 KLT 793 =1985 KLJ 300 and of the Supreme Court in y. V. Rangaiah v. J, Sreenivasa Rao, AIR J983 SC 852, A A. Gallon v. Director of Education, AIR 1983 SC 1143, State of Gujarat v. Raman Lai Kesliav Lai Soni, (1983) 2 SCC 33, K.C.Arora v. State of Haryana, (1984) 3 SCC 281, 5. Govindaraju v. Karnataka S.R. T.C. (1986) 3 SCC 273, T.R. Kapur v. State of Haryana, (1986) Supp. SCC P. Mahendrah v. State ofKarnataka, AIR 1990 SC 405, N. T. Devinkatti v. Karnataka P.S.C. (1990) 3 SCC 157 and DR.P.K. Jaiswal v. Ms. DebtMukherjee, 1992 (1) SLR 593. 4. In Velayudhan's case, 1985 KLT 793 =1985 KLJ 300, the position was that none in the office of the Government Transport and Equipment Organisation, Moovattupuzha including the writ petitioner was qualified for promotion as foreman, in that office when the vacancy arose on December 22,1976, with the result the vacancy was notified to the Public Service Commission for direct recruitment. Pending the selection, the rules were amended changing the qualification for the post of foreman and thereby the petitioner became qualified for the post. But he was not appointed, and he moved this court for relief. Meanwhile the second respondent who had been selected by the Public Service Commission was appointed and his appointment was also challenged. Pending the selection, the rules were amended changing the qualification for the post of foreman and thereby the petitioner became qualified for the post. But he was not appointed, and he moved this court for relief. Meanwhile the second respondent who had been selected by the Public Service Commission was appointed and his appointment was also challenged. The position was that at the time the vacancy of the foreman arose, none including the petitioner was qualified for promotion and it was this which resulted in the process of recruitment being set in motion through the Public Service Commission. It was the subsequent amendment to the rule that led to the petitioner being qualified. The amendment was not retrospective. The court took the view that in the case of vacancies to be filled up by promotion, only those who were qualified as on that date of occurrence of the vacancy could claim the post. A person who became qualified subsequently had no legal right to insist that he should get the post. In that context the court observed that once the machinery for recruitment is set in motion, it cannot be brought to a grinding halt by amending the special rules, an observation on which counsel for the petitioners laid considerable emphasis. A reading of the decision however shows that the ratio behind it was that a vacancy had to be filled up with reference to the qualifications and state of affairs at the time of occurrence of the vacancy and not with reference to later developments. It may be noted here that the subsequent change of qualifications which rendered the petitioner qualified was not retrospective. Necessarily and on the basis of their view that the qualifications as on the date of occurrence of the vacancy decided the issue, the court could not allow the subsequent prospective amendment to the rules to override the selection made by the Public Service Commission. 5. This decision was explained by another Division Bench of this court in Sahadeva Valigan v. State of Kerala, 1988 (1) KLT 202 which related to the selection of Munsiffs in the Kerala Civil Judicial Service. The Public Service Commission which was the authority to make recruitment of Munsiffs invited applications for the post and held a written test. 5. This decision was explained by another Division Bench of this court in Sahadeva Valigan v. State of Kerala, 1988 (1) KLT 202 which related to the selection of Munsiffs in the Kerala Civil Judicial Service. The Public Service Commission which was the authority to make recruitment of Munsiffs invited applications for the post and held a written test. But before the selection was finalised, the rules were amended in March-April 1987 vesting the power in the High Court to recruit Munsiffs. Applicants who had appeared at the written test held by the Public Service Commission moved this court with the contention that in respect of vacancies notified by the Public Service Commission, the Commission alone and not the High Court could make the selection. Naturally reliance was placed on Velayudlian's case. This court explained the rationale behind Velayudhan's case and observed that the submission of applications for the post did not create any legal right in the applicants. The amendment to the rules did not thus affect any of their rights. VelayucUian's case did not consider the effect of an amendment to statutory rules nor go to the extent of holding that the power to make or amend rules which was possessed by the government, had been lost, simply because the selection process had commenced. This court thus affirmed the power of the government to make statutory rules governing a selection, which if applicable affected the selection process already initiated. 6. The case in Y. V. Rangaiah, AIR 1983 SC 852 was one in which Lower Division Clerks in Andhra Pradesh were entitled to be promoted and posted as Sub Registrars Grade II for which purpose the government was required to prepare panel in September every year. The panel due in September 1976 was however not prepared till 1977, by which time government amended the rules making the Upper Division Clerks the feeder category for Sub Registrars Grade II. On this being challenged, the Supreme Court held that vacancies which occurred prior to the amended rules (which were evidently not retrospective) had to be filled up under the old unamended rules, and not under the new rules. 7. The other case in the same volume namely Gallon's case, AIR 1983 SC 1143, was one on which counsel for the petitioners stressed greatly. 7. The other case in the same volume namely Gallon's case, AIR 1983 SC 1143, was one on which counsel for the petitioners stressed greatly. Selection to the post of Principal of a private Intermediate College had to be made following the procedure prescribed in S.16f of the Uttar Pradesh Intermediate Education Act, which eventually vested the power in the Regional Deputy Director to appoint any qualified person out of the list of applicants for the post if the regular mode of appointment of a candidate recommended by the selection committee failed. The procedure for selection of the Principal of an Intermediate College belonging to a minority community was thus initiated, but while it was pending, the Act was amended in 1975 taking away the power of the Deputy Director to make the appointment. Nevertheless an appointment was made by the Deputy Director as under the unamended law, which was promptly challenged. The Supreme Court, while upholding the appointment, observed that the process of selection from the stage of calling for applications upto the date on which the Deputy Director became entitled to make the selection was an integrated one, and at every stage in that process, certain rights were created in favour of one or other of the candidates. The Supreme Court then made the following observation, which constituted the mainstay of the submissions of counsel for the petitioners: "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." Counsel reads the first part to contend that retrospective effect shall not be given to any provision, as that will impair an existing right. But the Supreme Court has not stated any such thing. What they have laid down is that a provision which is not expressly retrospective should not be made to operate in such a way as to operate retrospective and to impair vested rights. This is evident from the provision which they dealt with which did not expressly provide that the amendment of 1975 would apply to pending proceedings. What they have laid down is that a provision which is not expressly retrospective should not be made to operate in such a way as to operate retrospective and to impair vested rights. This is evident from the provision which they dealt with which did not expressly provide that the amendment of 1975 would apply to pending proceedings. What the Supreme Court did was to caution against applying such a provision retrospectively when it was not otherwise retrospective. That this is all they intended will be clear from the latter part of the quote above where they have expressly saved those contingencies where the statute either expressly or by necessary implication directs that it shall have retrospective effect. All that the Supreme Court therefore meant was that you shall not interpret an Act or a Rule as to make it act retrospectively, without its being stated so, as that will impair vested or accrued rights, but if it is expressly made retrospective, the position is different. That according to us is the position in this case. This decision does not therefore advance the case of the petitioners in any manner. 8. Counsel then went on to rely on another decision of the Supreme Court in State of Gujarat v. Raman Lai Keshav Lai Soni, (1983) 2 SCC 33, where the Gujarat Panchayats Act, 1961 was amended in 1978 with retrospective effect extinguishing the status of secretaries, officers and servants of Gram and Nagar Panchayats, who had earlier become government servants, on being allocated to the Panchayat Service in 1961. That was a clear case of violation of Articles 14 and 311 of the Constitution. It was stated: "Their status as government servants could not be extinguished, so long as the posts were not abolished and their services were not terminated in accordance with the provisions of Art.311 of the Constitution. Nor was it possible to single them out for differential treatment. That would offend Art.14 of the Constitution." The position that obtained after the amendment was that these constitutional safeguards of Arts.14 and 311 were wiped out by reverting to a situation that existed seventeen years ago in 1961. Nor was it possible to single them out for differential treatment. That would offend Art.14 of the Constitution." The position that obtained after the amendment was that these constitutional safeguards of Arts.14 and 311 were wiped out by reverting to a situation that existed seventeen years ago in 1961. Chinnappa Reddy, J. poignantly and eloquently spoke as follows: - "The legislature is undoubtedly competent to legislate with retrospective effect to take away or impair any vested right acquired under existing laws but since the laws are made under a written Constitution, and have to conform to the do's and don'ts of the Constitution, neither prospective nor retrospective laws can be made so as to contravene fundamental rights. The law must satisfy the requirements of the Constitution today taking into account the accrued or acquired rights of the parties today. The law cannot say, 20 years ago the parties had no rights, therefore, the requirements of the Constitution will be satisfied if the law is dated back by 20 years. We are concerned with today's rights and not yesterday's. A legislature cannot legislate today with reference to a situation that obtained 20 years ago and ignore the march of events and the constitutional rights accrued in the course of the 20 years. That would be most arbitrary, unreasonable and a negation of history." It is clear from these and other observations in the judgment that the Supreme Court did not strike down the amendment of 1978 on the mere ground of impairment of a vested right, but on the ground that it violated the constitutional rights under Arts.14 and 311 of the Constitution. 9. Similar is the position in Ex.Capt. K.C. Arora v. State of Haryana (1984) 3 SCC 281, where the seniority of certain officers of the Haryana Government, accrued by taking in to account their period of military service, was deprived with a stroke of the pen by an amendment of 1976 made retrospective from November 1, 1966. The Supreme Court held that the decision in Ramanlal keshavlal soni completely covered the case, and declared the amendment "ultra vires of the constitution". The constitutional provisions violated could, in the circumstances, be only Arts.14 and 16. Be it noted that the invalidity was not founded on mere infraction of any vested rights, but because such infraction violated the constitutional provisions. 10. The constitutional provisions violated could, in the circumstances, be only Arts.14 and 16. Be it noted that the invalidity was not founded on mere infraction of any vested rights, but because such infraction violated the constitutional provisions. 10. The other decisions relied on also do not advance the case of the petitioners in any manner and really do not brook elaborate discussion, except one namely T.R. Kapur. In S. Govindaraju v. Karnataka S.R.T.C. (1986) 3 SCC273 the position was that the petitioner was included in the select list of conductors prepared for appointment in the Karnataka State Road Transport Corporation. He did not however get any regular appointment and was working on a temporary basis, when his services were terminated, forfeiting his chance of further appointment, on the ground that he was found unsuitable for the post. This termination was effected without affording any opportunity of explanation to the petitioner and was plainly in violation of the principles of natural justice. On the termination being challenged, the Supreme Court did not express any opinion on its validity under S.25f of the Industrial Disputes Act, 1947, as they were inclined to quash the termination as one made without complying with the principles of natural justice. In that context, the Court observed that once a person is selected and included in the select list, he gets a right to be considered for appointment as and when vacancy arises, and therefore the rules of natural justice should be followed before he is removed from the list. This was the sole basis of the decision and we do not find anything in it supporting the view propounded by counsel for the petitioners. 11. Nor do we find anything in the subsequent decisions in P. Mahendran v. State of Karnataka, AIR 1990 SC 405, N.T. Devinkatti v. Karnataka P.S.C. 1990 (3) SCC 157 and Dr.P.R. Jaiswal v. Ms. Debi Mukherjee, 1990 (2) SLR 593 Advancing the case of the petitioners. In Mahendran's case, the rules were amended prospectively after the selection process commenced and therefore, it was held, following Gallon that the selection process had to be completed in accordance with the law as it stood at its commencement. At the same time, the court held that the position will be otherwise, if the amendment was retrospective in nature, as is evident from the following statement in paragraph 11. At the same time, the court held that the position will be otherwise, if the amendment was retrospective in nature, as is evident from the following statement in paragraph 11. "It is true that a candidate does not get any right to the post by merely making an application for the same, but a right is created in his favour for being considered for the post in accordance with the terms and conditions of the advertisement and the existing recruitment rules. If a candidate applies for a post in response to an advertisement issued by the Public Service Commission, in accordance with recruitment rules, he acquires right to be considered for selection in accordance with the then existing rules. This right cannot be affected by amendment of any rules, unless the amending rule is retrospective in nature." 12. The same view was reiterated in Devinkatti (1990) 3 SCC 157 (paragraphs 11 and 13). Both these decisions therefore affirm the principle that 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. Dr.P.K. Jaiswal does not directly deal with the points arising in this case, the decision only recognising the government's right to withdraw a requisition from the Public Service Commission before the process of selection was initiated. 13. We shall now advert to the decision in T.R. Kapur v. State of Haryana, (1986) Supp. SCC 584, the observations in paragraph 16 of which are stated to go the whole way to support the petitioners' case. But even at the outset, we may point out that this case was not one of recruitment, but one of promotion. The case is parallel to Raman Lai Keshav Lai Soni and K.C. Arora inasmuch as amendments were made years after, doing away with rights which had accrued, thereby violating Arts.14 and 16 of the Constitution. The petitioners concerned in this case were diploma holders in the service of the State of Haryana, who, as per the unamended rules, were entitled for promotion as Executive Engineers in class I service. The petitioners concerned in this case were diploma holders in the service of the State of Haryana, who, as per the unamended rules, were entitled for promotion as Executive Engineers in class I service. But just two days prior to the date on which they were to be promoted in June 1984, the State Government purported to amend the rules with retrospective effect from July 10, 1964, making a degree in Engineering an essential qualification for promotion to class I service. This was challenged as being violative of Arts. Hand 16 of the Constitution. It was in dealing with such a situation, the Court made the observations in paragraph 16: - "It is equally well settled that any rule which affects the right of a person to be considered for promotion is a condition of service although mere chance of promotion may not be. It may further be stated that an authority competent to lay down qualifications for promotion, is also competent to change the qualifications. The rules defining qualifications and suitability for promotion are conditions of service and they can be changed retrospectively. This rule is however subject to a well recognised principle that the benefits acquired under the existing rules cannot be taken away by an amendment with retrospective effect, that is to say, there is no power to make such a rule under the proviso to Art.309 which affects or impairs vested rights. Therefore, unless it is specifically provided in the rules, the employees who are already promoted before the amendment of the rules, cannot be reverted and their promotions cannot be recalled. In other words, such rules laying down qualifications for promotion made with 4"-retrospective effect must necessarily satisfy the tests of Arts.14 and 16(1) of the Constitution." The petitioners want to read this passage out of context and without the background facts to suggest that the Supreme Court has held that there cannot be any amendment with retrospective effect at all, as that will necessarily affect accrued rights. But, a close reading of the decision, related to the fact, situation of the case, will show that the rights dealt with are the rights under Arts.14 and 16 of the Constitution and not any other. Ultimately the Court rested the principle as one of violation of Arts.14 and 16 of the Constitution. But, a close reading of the decision, related to the fact, situation of the case, will show that the rights dealt with are the rights under Arts.14 and 16 of the Constitution and not any other. Ultimately the Court rested the principle as one of violation of Arts.14 and 16 of the Constitution. We cannot therefore read the observations quoted above in the manner suggested by the petitioners as debarring any amendment with retrospective effect with regard to conditions of service, lest they affect vested rights. The Court has only reiterated what otherwise is well settled and axiomatic, that no constitutional right shall be affected by any new rule or amendment made with retrospective effect. The decision does not lay down anything beyond that. 18. We have dealt with all the decisions relied on by the petitioners. We have explained their scope while dealing with each of them and we do not find anything therein which supports the wide proposition propounded by the petitioners that once the selection process commences no amendment to the rules can be made thereafter, even retrospectively, as to affect the selection and that the selection shall be completed in accordance with the law as it existed at the commencement of the selection process. While the decisions do recognise a right to be considered for the post in accordance with the terms and conditions of the advertisement and the existing recruitment rules, they also recognise the right of the government to affect this right by an amendment to the rules with retrospective effect (vide A.A. Calton v. Director of Education, AIR 1983 SC 1143, P. Mahendran v. State ofKarnataka, AIR 1990 SC 405 and N.T. Devinkatti v. Karnataka P.S.C. 1990 (3) SCC 157). 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 rights. 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. The effect of the decisions relied on by the petitioners and dealt with by us earlier, despite the apparent width of the language in some of them, is only that the retrospective operation of any such rule shall not operate as to affect the constitutional rights of a person. The effect of the decisions relied on by the petitioners and dealt with by us earlier, despite the apparent width of the language in some of them, is only that the retrospective operation of any such rule shall not operate as to affect the constitutional rights of a person. They do not go beyond or hold that rights, which are not constitutional rights, cannot be affected, as that will be virtually negating the power inhering under Art.309 of the Constitution to make rules with retrospective effect. Therefore and 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. We are not satisfied that any such constitutional right is infringed in these cases. 15. No right to be selected inhered in the petitioners by their making the application for selection as Amins to the Public Service Commission. (Vide I.J. Divakar v. Government ofAndlir a Pradesh, AIR 1982 SC 1555). The only right that vested in them was the right to be considered for selection in accordance with the rules as they existed on the date of the advertisement, of which again they could be deprived, by a retrospective amendment (Devinkatty v. Karnataka Public Service Commission, (1990) 3 SCC 157). Even on inclusion in a select list, the only right that vests is that of consideration for appointment in any vacancy that may arise. No other right exists. In fact R.3(b) of the Kerala State and Subordinate Service Rules is specific that the inclusion of a candidate's name in any list of approved candidates for any service does not confer on him any claim for appointment to the service. 16. We are not therefore satisfied that the petitioners had any right which could not be divested by any retrospective amendment. We do not find any violation of Arts.14 or 16 of the Constitution, though the amendment to the rule is challenged on this ground in some of the writ petitions. In fact no arguments were seriously addressed on this point, Sri. We do not find any violation of Arts.14 or 16 of the Constitution, though the amendment to the rule is challenged on this ground in some of the writ petitions. In fact no arguments were seriously addressed on this point, Sri. Sugunapalan, for the petitioners in O.P.No.9879 of 1989, who did the arguments in the main, concentrating his attack on the aspects of impairment of the alleged rights vesting consequent on the issue of the notification by the Public Service Commission and the obligation to continue the selection under the unamended rules. Nor was there any challenge that the date February 24, 1981 fixed for the commencement of retrospectivity was irrational or without any basis. Since the amendment was retrospective, and since no constitutional rights of the petitioners are affected, they cannot be heard to say that they should be appointed as Amins from out of the select list, ignoring the amendment. The petitioners' right is only to take their chance under the amended rule, for appointment, if no suitable attenders or last grade servants are available. The reliefs claimed in the writ petitions are not liable to be granted. 17. Before concluding, we may mention that the decisions in Sahadeva Valigan v. State of Kerala, 1988 (1) KLT 202 and SimonLukose v. D.S.P., Kottayam,1990 (2) KLT 371 (which was confirmed by a Division bench) support the view we have taken, though they both relate to withdrawal of the right of recruitment, from the Public Service Commission, after the process of selection was initiated. The petitioners are not therefore entitled to any of the reliefs sought. The Original Petitions are accordingly dismissed without however any order as to costs.