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2023 DIGILAW 1043 (KER)

Jithesh v. S/o Balakrishnan VS State of Kerala

2023-12-15

RAJA VIJAYARAGHAVAN V.

body2023
JUDGMENT : 1. The petitioners in W.P. (C) No. 30646/2023 and W.P. (C) No. 30215/2013 are working as “Operators” in the Kerala Water Authority (KWA). They are aspirants for the post of Assistant Engineer in the Kerala Water Authority under the in-service/departmental quota. Their grievance in these writ petitions is that they have been denied an opportunity to participate in the selection process for the post of Assistant Engineer, which has been notified as Category No. 138/2022 by the Kerala Public Service Commission (KPSC) on the ground that as on the date of notification, the persons like petitioners were not eligible to apply for the said post under the in-service/departmental quota in terms of the Kerala Public Health Engineering Subordinate Service Special Rules, 1966 (PHESS Rules, 1966). 2. W.P. (C) No. 34313/2023 has been filed by the petitioners who have been working as Draftsman Grade-II in the KWA. They contend that they possess the qualification of degree in Engineering and are fully qualified to be considered for appointment to the post of Assistant Engineer in the 10% quota year marked for Direct Recruitment to the in-service candidates. The petitioners have approached this Court challenging Exhibit P9 order passed by the Government by which the Government has decided to consider the petitioners in W.P. (C) No. 30646/2023, who have already participated in the common test in General Category (Category No. 137/2022), for by-transfer category (Category No. 138/2022) recruitment as well. According to the petitioners, by issuing Exhibit P9 Government Order, the Government has indirectly implemented Exhibit P5 Special Rules with retrospective effect from the date of issuance of Exhibit P3 notification. 3. As common issues are involved, all these repetitions are taken up and disposed of by a common judgment. Parties and exhibits shall be as described in W.P. (C) No. 30646 of 2023. 4. Before delving in detail into the rival contentions, the bare minimum facts which led to the notification and the consequential orders issued by this Court which ultimately led to the passing of Exhibit P9 order need be briefly stated. 5. The conditions of service of employees in the KWA are governed by the Kerala Public Health Engineering Subordinate Service Special Rules, 1966 (PHESS Rules, 1966) and the Kerala Public Health Engineering Service Special Rules, 1960 (PHES Rules, 1960). 5.1. 5. The conditions of service of employees in the KWA are governed by the Kerala Public Health Engineering Subordinate Service Special Rules, 1966 (PHESS Rules, 1966) and the Kerala Public Health Engineering Service Special Rules, 1960 (PHES Rules, 1960). 5.1. The PHESS Rules, 1966 was issued on 01.11.1966, and it provides that the service shall consist of about 43 categories of officers. The relevant categories for the purpose of this case are as under: Rule 1 Category I - Junior Engineer/Minor Irrigation Supervisor Rule 1 Category IV - Draftsman/Water Works Inspector/ Drainage Inspector/Overseer Grade I 5.2. Rule 2 deals with the appointment to the various categories. The relevant portion reads thus: Category Method of appointment (1) (2) 1. Junior Engineer/Minor Irrigation Supervisor 1. Direct recruitment. 2. Promotion from category 4. Note: (i) Direct recruitment and appointment by promotion shall be made in the ratio of 6:4. Diploma holders and Certificate holders shall be promoted in the ratio 3:1. (ii) The above ratio shall be applied to the total cadre strength of Junior Engineers in the Department. The provision says that the appointment shall be through Direct Recruitment and Promotion from category 4 and it shall be in a ratio of 6:4. 5.3. The Note (vii) to Rule 2 details the manner of making the appointment. The said Rule reads thus: Note: (vii) Subject to the provisions in item (i) in making appointment to the category by direct recruitment, appointment to 54% of the post shall be made by direct recruitment of candidates from the open market and 6% by direct recruitment from among Draftsman/Water Works Inspector/Drainage Inspector/Overseer Grade I or II or Works Superintendents Grades I and II or Clerks in the Public Health Engineering Department of the Government of Kerala. 5.4. The post of Junior Engineer has been re-designated as Assistant Engineer by a later Government Order. 5.5. For appointment to the post of Assistant Engineer, there exists two methods of appointment. One is by direct recruitment and the other by promotion from the category of Draftsman Grade-I/Overseer Grade I. It would be pertinent to note that the post of Operator has not been included in the above category of low paid employees entitled for promotion. 5.6. 5.5. For appointment to the post of Assistant Engineer, there exists two methods of appointment. One is by direct recruitment and the other by promotion from the category of Draftsman Grade-I/Overseer Grade I. It would be pertinent to note that the post of Operator has not been included in the above category of low paid employees entitled for promotion. 5.6. The Rule position being as above, the KPSC issued Exhibit P1 notification dated 04.05.2022 (Category No. 138/2022) inviting applications from qualified candidates for appointment to the post of Assistant Engineer, in the departmental quota from in-service candidates. The number of vacancies is stated as 8 and those vacancies were to be filled up through direct recruitment under the in-service quota. 5.7. As per the Special Rules, the petitioners in W.P. (C) Nos. 30646/2023 and 30215/2023 were not entitled to apply as they were working as Operators. The petitioners in W.P. (C) No. 34313/2023 responded to the notification as they possessed the requisite qualification and as they belonged to the category of employees who were permitted to apply for direct recruitment under in-service quota to the post of Assistant Engineer. 5.8. The Public Service Commission after conducting a written test, published a select list of candidates who were eligible for appearing for the interview for appointment to the post of Assistant Engineer in the departmental quota. The petitioners in W.P. (C) No. 30646/2023 and 30215/2023 were not included in the select list but the names of the petitioners in W.P. (C) No. 34313 of 2023 found a place in the select list. They were called for an interview and the ranked list was published. 5.9. In the meantime, Draft Rules had been published and the Operators felt that a window of opportunity was opened to them to aspire for the post of Assistant Engineer under the in-service quota. As the petitioners in W.P. (C) No. 30646/2023 were denied opportunity to participate in the selection process, they approached this Court and filed W.P. (C) No. 1860/2021. This Court passed an interim order directing the PSC to consider the applications submitted by the petitioners for selection on the strength of the draft rules which had not come into force. 5.10. The order passed by the learned Single Judge was taken in appeal by the PSC. This Court passed an interim order directing the PSC to consider the applications submitted by the petitioners for selection on the strength of the draft rules which had not come into force. 5.10. The order passed by the learned Single Judge was taken in appeal by the PSC. The Division Bench of this Court, after considering the entire conspectus of the matter, allowed the writ petition and set aside the order passed by the learned Single Judge. While allowing the writ petition it was held that as the extant Rules have not been replaced by the proposal and draft special Rules, the PSC could not have issued a notification including any other qualification other than what is prescribed in the Special Rules. It was also emphatically held that the selection on the basis of the existing Special Rules cannot be allowed to be stalled on the basis of the draft Special Rules, which are yet to come into force. It was further held that the interim order passed by the learned Single Judge goes against the qualifications prescribed in the notification and has the effect of permitting ineligible candidates to appear for the selection proceedings, the same cannot be legally sustained. 5.11. The petitioners contend that even prior to the passing of the judgment by the Division Bench, the 1st respondent had directed the MD, KWA, to report as to whether persons in the lower category should be included in Ext.P1 notification. Immediately thereafter, the 2nd respondent requested the 1st respondent to issue an executive order to enable the petitioners to take part in the selection. 5.12. While so, some of the Operators which include the petitioners approached this Court and filed W.P. (C) No. 1860/2021 and connected cases seeking issuance of directions to the 1st respondent to act on the recommendations made by the Managing Director. By an interim order dated 14.10.2022 in W.P. (C) No. 30716/2019 and connected cases (Ext.P3 in W.P. (C) No. 30646/2023), this Court directed the 1st respondent to consider the report of the Managing Director and take a decision. In terms of the directions issued, the 1st respondent issued Ext.P4 order dated 7.11.2022 rejecting the claim of the petitioner. This order was challenged by the petitioners by filing W.P. (C) No. 36809/2022. 5.13. In terms of the directions issued, the 1st respondent issued Ext.P4 order dated 7.11.2022 rejecting the claim of the petitioner. This order was challenged by the petitioners by filing W.P. (C) No. 36809/2022. 5.13. By Ext.P5 judgment dated 23.12.2022, this Court held that the 1st respondent had not considered the matter in its proper perspective and directed the Government to pass an executive order exempting or relaxing the rigor of the Special Rules in accordance with the provisions of the Draft Special Rules. In terms of the directions issued by this Court, when no orders were passed, the petitioners approached this court and filed Cont. Case (C) No. 317/2023. In the meantime, Ext.P6 order was issued yet again, rejecting the request. This order was challenged by the petitioners by filing W.P. (C) No. 12012/2023. 5.14. While so, this Court in Cont. Case (C) No. 317/2023 issued Ext.P8 order directing the Government to pass fresh orders as it was felt that the reasons stated for refusing the claim of the petitioners for participating in the selection process as in-service candidates was not satisfactory. In the light of the above order, W.P. (C) No. 12012/2023 was closed. 5.15. It is pertinent to note that some of the operators, including the petitioners, had approached this Court seeking to direct the State to finalize the draft Technical Service Rules for the Kerala Water Authority and to include the category of operators also in the PSC notifications for recruitment to the post of Assistant Engineers. They had also sought to include the operators in the PSC notification which had already been published. During the pendency of the writ petition, the KWA promulgated the Kerala Water Authority Technical Service Rules as per Extra Ordinary Gazette No. 358 dated 30.01.2023 and published G.O. (P) No. 1/2023/WRD dated 27.01.2023. A learned Single Judge by judgment in Rexin P.S. and Others vs. State of Kerala and Others, 2023 KER 38032 came to the conclusion that in view of the promulgation of the Kerala Water Authority Technical Service Rules, their prayer for finalizing the draft rules has practically become infructuous. A learned Single Judge by judgment in Rexin P.S. and Others vs. State of Kerala and Others, 2023 KER 38032 came to the conclusion that in view of the promulgation of the Kerala Water Authority Technical Service Rules, their prayer for finalizing the draft rules has practically become infructuous. Insofar as the prayer of the petitioners to include operators in the PSC notification, which has already been published, is concerned, reliance was placed on the law laid down in State of Himachal Pradesh and Others vs. Raj Kumar and Others, 2022 SCC Online 680 and it was held that there cannot be any right for the employee outside the rule governing the service. Accordingly, the prayer was rejected. This Court also held that the KWA or the PSC cannot be directed to consider the petitioners for appointment to the in-service quota vacancies of Assistant Engineers against the vacancies notified by the PSC prior to the promulgation of the Kerala Water Authority Technical Service Rules. The judgment rendered by the Division Bench was challenged by the petitioners in Appeal and by judgment in Rexin P.S. and Others vs. State of Kerala and Others, 2023 KER 53817, this Court confirmed the order passed by the learned Single Judge and held that the petitioners could only aspire for such vacancies based on new rules in accordance with any notification to be issued by the PSC. The petitioners were granted liberty to claim for any vacancies covered by the new rules at the appropriate time. 5.16. In the meantime, in pursuance to the orders passed by this Court in Contempt Case No. 317/2023, the Government came out with G.O. (Rt) No. 759/2023/WRD. Dated 24.8.2023 (Ext.P11 in W.P. (C) No. 30646/2023) permitting the petitioners in the Contempt Case to be considered under the by-transfer category (Category No. 138/2022) as well. 5.17. The petitioners assert that despite the passing of Ext.P11 order in their favour, when Ext.P12 shortlist and Ext.P14 ranked list was issued in respect of Category No. 138/2022, their names were excluded. It is on these assertions that W.P. (C) No. 30646/2023 has been filed seeking to quash Ext.P12 and P14 and for a declaration that they are also entitled to be considered for selection to the post of Assistant Engineer under Category No. 138/2022 pursuant to Ext.P1 notification and that they are entitled to be included in Ext.P12 and P14. It is on these assertions that W.P. (C) No. 30646/2023 has been filed seeking to quash Ext.P12 and P14 and for a declaration that they are also entitled to be considered for selection to the post of Assistant Engineer under Category No. 138/2022 pursuant to Ext.P1 notification and that they are entitled to be included in Ext.P12 and P14. Various other reliefs are also sought. 6. The facts and assertions in W.P. (C) No. 30215/2023: This writ petition is also filed by employees working in the lower category in the Kerala Water Authority. They assert that they are also qualified for appointment to the post of Assistant Engineer in the KWA as per the Kerala Water Authority Technical Service Rules, 2023. They contend that despite directions issued by this Court in Rexin P.S. and Others vs. State of Kerala and Others, 2022 KER 74964, the respondents have not acted in terms of the directions. Identical contentions as has been raised in W.P. (C) No. 30646/2023 has also been raised in this writ petition and their prayer is to include the names of the petitioners as well in Ext.P4 order dated 24.8.2023 and to consider them under the by-transfer category (Category No. 138/2022). 7. The facts and assertions in W.P. (C) No. 34313/2023: This writ petition is filed seeking to quash G.O. (Rt) No. 759/2023/WRD. dated 24.8.2023 issued by the Government by which the petitioners in W.P. (C) No. 30646/2023 were also ordered to be considered under the by-transfer category. The contention of the petitioners is that the Kerala Water Authority Technical Service Rules, 2023, came into force only on 30.1.2023 and therefore, the Rules can be made applicable only to those vacancies that arose after 30.1.2023. They contend that they had entered service as Draftsman Grade-II in the KWA and they possess the qualification to be considered for appointment to the post of Assistant Engineer in the 10% quota earmarked for direct recruitment to in-service candidates. According to the petitioners, the post of Operator is not considered as a feeder category in terms of the PHESS Rules, 1966 and the PHES Rules 1960. According to the petitioners, the post of Operator is not considered as a feeder category in terms of the PHESS Rules, 1966 and the PHES Rules 1960. It is contended that a notification inviting applications from qualified candidates for filling up 8 vacancies in the post of Assistant Engineer in the Departmental quota from in-service candidates being Category No. 138/2022 was issued on 4.5.2022 and as on the date of issuance of notification, the post of Operator was not included in the feeder category. It is contended that the Operators can aspire for any vacancy that arose only after 30.1.2023 on which date, the Kerala Water Authority Technical Service Rules, 2023 had come into force. They contend that G.O. (Rt) No. 759/2023/WRD. dated 24.8.2023 (produced as Ext.P9 in W.P. (C) No. 34313/2023) is illegal in as much as the Government has no authority to act contrary to the Special Rules that has been promulgated particularly when the Special Rules clearly stipulates that it shall operate only prospectively. It is on these assertions that they have sought to quash Ext.P9 Government Order and for issuance of directions to the competent respondent to advise the petitioners to the post of Assistant Engineers in the light of their inclusion in Ext.P4 rank list pursuant to Ext.P3 notification. 8. Assertions in the Counter Affidavit filed by the KPSCA in W.P. (C) No. 30646/2023: It is stated that notification for the post of Assistant Engineer (from Departmental candidates) was issued in the Gazette dated 4.5.2022 in Category No. 138/2022. At the time of issuance of notification, the notification for the post was published as per the Kerala Public Health Engineering Subordinate Service Rules which is hitherto being followed in KWA for Recruitment, Promotion, and Allied matters. It is stated that the Division Bench of this Court in W.A. No. 937/2022 and connected cases had held that as on the date of issuance of notification, Operators were not qualified to apply for the post of Assistant Engineer. They also contend that a learned Single Judge in W.P. (C) No. 4614/2023 and connected cases had occasion to hold that the Operators were not eligible for appointment as Assistant Engineers till the Technical Service Rules were published on 30.1.2023. This judgment rendered by the learned Single Judge was upheld by the Division Bench in W.A. No. 1322/2023. They also contend that a learned Single Judge in W.P. (C) No. 4614/2023 and connected cases had occasion to hold that the Operators were not eligible for appointment as Assistant Engineers till the Technical Service Rules were published on 30.1.2023. This judgment rendered by the learned Single Judge was upheld by the Division Bench in W.A. No. 1322/2023. It is stated that the category of Operators are not included in the feeder category as on the date of notification and therefore, they are not eligible to be included in the selection process initiated prior to the amendment. It is stated that G.O. (Rt) No. 759/2023/WRD. Dated 24.8.2023 cannot be complied with since it is contrary to the notified qualification for the selection. It is for the said reason that the names of the petitioners in W.P. (C) No. 30646/2023 were not included in the short list or the ranked list. It is stated that 8 vacancies were notified before the amendment of the Special Rules and hence, the petitioners are not eligible to be considered for the above vacancies. They would have the eligibility to be considered only in the vacancies that occurred after the inclusion of the post of Operators in the feeder category pursuant to the promulgation of the Kerala Water Authority Technical Service Rules, 2023. 9. I have heard Sri. Varun C. Vijay, the learned counsel appearing for the petitioners in W.P. (C) No. 34606/2023, Sri. Johnson Jose Panjikkaran, the learned counsel appearing for the petitioners in W.P. (C) No. 30215/2023, Sri. Elvin Peter. P.J. the learned counsel appearing for the petitioners in W.P. (C) No. 34313/2023, Sri. P.M. Johny, the learned standing counsel appearing for the Kerala Water Authority, Sri. P.C. Sasidharan, the learned standing counsel appearing for the Kerala Public Service Commission and Sri. Jimmy George, the learned Government Pleader. 10. There is no dispute with regard to the fact that the Special Rules that lays down the conditions of service applicable in the KWA were the Kerala Public Health Engineering Subordinate Service Rules, 1966 and the Kerala Public Health Engineering Service Special Rules, 1960. The method of appointment and qualification for appointment to the post of Assistant Engineer is prescribed in the Kerala Public Health Engineering Subordinate Service Rules, 1966. The method of appointment and qualification for appointment to the post of Assistant Engineer is prescribed in the Kerala Public Health Engineering Subordinate Service Rules, 1966. For appointment to the post of Assistant Engineer, there are two modes - one is by Direct Recruitment and the other is through the mode of by-promotion from the category of Draftsman Grade-I. From Note 2 to Rule 2, the appointment to the category of Assistant Engineer by Direct Recruitment, 54% of the post shall be by Direct Recruitment of candidates from the open market and 6% by direct recruitment from among the Draftsman/Waterworks Inspector/Drainage Inspector/Overseer Gr. I and I. 11. It was on 4.5.2022 that the KPSC had issued a notification calling for applications from qualified candidates for appointment to the post of Assistant Engineer in the Departmental quota from the in-service candidates as Category No. 138/2022. From the notification, it is evident that there existed 8 vacancies of Assistant Engineers to be filled up by the above mode. As on the date of issuance of the notification, the post of Operator or that of Surveyor Grade-I was not included in the feeder category so as to make them eligible to apply for direct recruitment. However, there was a proposal to bring out the Kerala Water Authority Technical Service Rules and it was in the draft stage. In the draft rules, the post of Operator and some other lower category posts were also included in the feeder category. This prompted some of the Operators to approach this court seeking directions. A learned Single Judge of this Court granted an interim order and directed the KPSC to consider them on the basis of the draft special rules, which had not come into force. 12. The matter was taken in appeal by the KPSC and a Division Bench of this Court in Ext.P2 judgment allowed the appeal and set aside the order passed by the learned Single Judge. It was held that the extant rules not having been replaced by the Special Rules, the KPSC could not have issued a notification including any other qualification other than what is prescribed in the existing rules. It is also held that the selection on the basis of the existing special rules cannot be allowed to be stalled on the basis of the draft special rules which are yet to come into force. It is also held that the selection on the basis of the existing special rules cannot be allowed to be stalled on the basis of the draft special rules which are yet to come into force. Holding so, the order permitting the petitioners to participate in the selection process was set aside. 13. Though the Government proceeded to pass Ext.P4 and P6 Orders refusing the request of the Operators to apply to the in-service quota, later, pursuant to the order passed by the learned Single Judge in the Contempt Case, they have proceeded to issue Ext.P11 order permitting the petitioners in W.P. (C) No. 30646/2023 to be considered under the by-transfer category as well. By issuing such an order, the Government has permitted the employees working in the category of Operators, which did not fall in the feeder category as per the Rules prevailing at the time of notification to be included and also to consider their candidature for appointment to the post of Assistant Engineer. This Order has been passed notwithstanding the categoric pronouncement made by the Division Bench in W.A. No. 1009/2022 and connected cases and in W.A. No. 1322/2023 and connected cases, wherein it was categorically held that the Operators can only aspire for such vacancies that arose after 30.1.2023 on which date, the Technical Service Rules had come into effect. Furthermore, the Technical Service Rules would only be prospective in nature unless otherwise stipulated therein. By issuing the impugned order, the Government has given retrospective operation to the Special Rules, which course could not have been adopted. 14. In N.T. Devin Katti and Others vs. Karnataka Public Service Commission, (1990) 3 SCC 157 , the Apex Court had occasion to hold as follows: It is well accepted principle of construction that a statutory rule or Government Order is prospective in nature unless it is expressly or by necessary implication made to have retrospective effect. 14. In N.T. Devin Katti and Others vs. Karnataka Public Service Commission, (1990) 3 SCC 157 , the Apex Court had occasion to hold as follows: It is well accepted principle of construction that a statutory rule or Government Order is prospective in nature unless it is expressly or by necessary implication made to have retrospective effect. Where proceedings are initiated for selection by issuing advertisement, the selection should normally be regulated by the then existing rules and Government Orders and any amendment of the rules or the Government Order pending the selection should not affect the validity of the selection made by the Selecting Authority or the Public Service Commission unless the amended Rules or the amended Government Orders issued in exercise of its statutory power either by express provision or by necessary intendment indicate that amended Rules shall be applicable to the pending selections. [See P. Mahendran vs. State of Karnataka, 1990 (1) SCC 411 ] There is nothing to show that the intent of the Government was to make the Kerala Water Authority Technical Service Rules, 2023 retrospective in nature. 15. In Mohanan vs. Director of Homeopathy, 2006 (3) KLT 641 a Full Bench of this Court had occasion to resolve an issue with regard to appointment to the post of Pharmacist Grade-II in the Department of Homeopathy. After inviting application for selection, the Government issued the Special Rules for the Homeopathy Subordinate Service Rules, 1999 in super-session of all existing rules and orders and by changing the previously existing minimum qualification prescribed for appointment to the said post. A dispute arose as to whether after the amendment to the rules, vacancies could be filled up from the list published by the PSC, which was prepared based on the pre-revised qualifications. While deciding the issue, the Full Bench, after scanning the precedents on the subject, had held as follows in paragraph No. 21 and 22 of the judgment, which reads as under: 21. 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. 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, an 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 Art.14 and 16 of the Constitution of India. In other words, both the rights should mutually coexist and in that view also our conclusion is perfectly in accord with the constitutional principles which cannot be negated to both sets of people. 22. In fact, we feel that it is the only reasonable conclusion possible, since, otherwise, the very purpose of amendment would be defeated. 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 un-amended 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. Therefore, we have no doubt in our mind that 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 P.S.C. selection of which was initiated prior to the amendment of the rules. 16. If the law were to be succinctly stated, those persons who applied pursuant to the selection process initiated prior to the date of coming into force of the Special Rules are eligible for being considered for selection in accordance with the Rules in force at that time. 16. If the law were to be succinctly stated, those persons who applied pursuant to the selection process initiated prior to the date of coming into force of the Special Rules are eligible for being considered for selection in accordance with the Rules in force at that time. Those persons who possess the qualifications as per the Special Rules to get recruitments made in accordance with the new Rules are entitled to compete for the vacancies which have arisen subsequent to the coming into force of the new Rules. Once a new Rule is brought into force or an amendment is brought in regarding qualifications and method of appointment etc., in respect of a particular post, any vacancy which arises subsequent to the commencement of the new/amended Rules can be filled up only in accordance with the new/amended Rules notwithstanding the currency of any rank list published by the P.S.C. selection of which was initiated prior to the amendment of the Rules. 17. In P. Mohanan Pillai vs. State of Kerala and Others, AIR 2007 SC 2840 , the Apex Court has held as under: “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.” 18. In Umesh Chandra Shukla vs. Union of India and Others, AIR 1985 SC 1351 , it has been held that there was no “inherent jurisdiction” of the Selection Committee/Authority to lay down such norms for selection in addition to the procedure prescribed by the Rules. Selection is to be made giving strict adherence to the statutory provisions and if such power i.e. “inherent jurisdiction” is claimed, it has to be explicit and cannot be read by necessary implication for the obvious reason that such deviation from the Rules is likely to cause irreparable and irreversible harm. 19. In State of H.P. vs. Raj Kumar, (2023) 3 SCC 773 , it was held by the Apex Court that a candidate has a right to be considered in the light of the existing rules, which implies the “rule in force” as on the date consideration takes place. 20. 19. In State of H.P. vs. Raj Kumar, (2023) 3 SCC 773 , it was held by the Apex Court that a candidate has a right to be considered in the light of the existing rules, which implies the “rule in force” as on the date consideration takes place. 20. In the instant case, as the notification was issued on 4.5.2022 and the Rules that were in force for recruitment were the Special Rules of the Kerala Public Health Engineering Subordinate Service Rules. As per the Rules, Operators/Surveyor Gr. I is not a feeder category post to the post of Assistant Engineer in the in-service quota. The Technical Service Rules which came into effect on 30.1.2023 being prospective, there was no justification on the part of the Government in issuing G.O. (Rt) No. 759/2023/WRD. dated 24.8.2023 granting an exemption to the petitioners in W.P. (C) No. 30646/2023. The Operators cannot aspire to be considered for candidature in any selection process conducted prior to 30.1.2023. This position was reiterated by the Division Bench of this Court in K.P.S.C. vs. Rexin and Others, 2022 KER 44575 by holding as under: 8. It is not in dispute that as per the notification issued by the PSC, the writ petitioners are not qualified to apply for the post of Assistant Engineer. It is also not in dispute that the draft rules which are pending finalization, could not be finalised or brought into force. The prayers sought in almost all the writ petitions are to direct the respondents to finalise the rules, and also for keeping selection process in abeyance till then and also for directing the respondents to issue addendum notification in the nature of executive orders to vary the qualifications to make them also eligible to apply for the post in question. In as much as the extant rules are not replaced so far by the proposal and draft Special Rules, the appellant PSC could not have issued a notification including any other qualification other than what is prescribed in the existing rules. This is more so when the Kerala Water Authority also did not take any conscious decision to fill up the existing vacancies other than in accordance with the extant rules. This is more so when the Kerala Water Authority also did not take any conscious decision to fill up the existing vacancies other than in accordance with the extant rules. The present selection on the basis of existing Special Rules cannot be allowed to be stalled on the basis of the draft Special Rules which are yet to come into force. The interim order in these cases goes against the qualifications prescribed in the notification and has the effect of permitting ineligible candidates to appear for the selection process, which we feel cannot be done. 9. The learned counsel for the KWA also submitted before us that it intends to go ahead with the present selection on the basis of existing rules and not the draft Special Rules. The learned Government Pleader also submits that the draft Special Rules can be finalised only after due deliberations. It is trite that, if a particular qualification is prescribed, there cannot be any justification for allowing a selection to proceed on disregarding the qualifications prescribed therein. Since it is not disputed that the petitioners are not qualified as per the qualifications now issued, we find that the interim orders now passed cannot be sustained. May be the learned single Judge was inclined to protect the interest of the petitioner in the likely event of an imminent finalisation of the draft rules. We feel however that, even in those circumstances, the interest of the petitioners could have been safeguarded only in subsequent selection process and not in a selection process that had already commenced and was well underway. That however is a matter that can be considered along with the main relief sought in the writ petition namely, for a direction to finalise the Special Rules within a time limit. 21. Later, another Division Bench of this Court in Rexin P.S. and Others vs. State of Kerala and Others, 2023 KER 53817 had occasion to hold as follows: 1. The appellants who are the petitioners in the writ petition are found not eligible in accordance with the notification issued on 04.05.2022 by the Public Service Commission for the recruitment to the post of Assistant Engineer in the Kerala Water Authority as departmental candidate. The Rule that was in force for recruitment was Special Rules of Kerala Public Health Engineering Subordinate Service Rules. 2. The Rule that was in force for recruitment was Special Rules of Kerala Public Health Engineering Subordinate Service Rules. 2. The petitioners now claim to be eligible in accordance with Kerala Water Authority Technical Service Rules that came into force with effect from 30.01.2023 admittedly subsequent to the notification of the Public Service Commission. Therefore, the petitioners can only aspire for such vacancies based on new Rules in accordance with any notification to be issued by the PSC. In such circumstances, we are of the view that the petitioners are at liberty to claim for any vacancies covered by the new Rules in appropriate time. 22. In view of the discussion above, I hold that the petitioners in W.P. (C) No. 30646/2023 and W.P. (C) No. 30215/2023 are not entitled to aspire for recruitment to the post of Assistant Engineer in Kerala Water Authority in Category No. 138/2022 under the Departmental Candidates Quota. The Government Order permitting them to be considered under the by-transfer category cannot be sustained under law. I hold that only those employees in the KWA, who are eligible in accordance with Ext.P3 notification are alone entitled to get an appointment to the post of Assistant Engineer in the Departmental quota. 23. Resultantly, these writ petitions are ordered as under: (a) W.P. (C) No. 30646/2023 and W.P. (C) No. 30215/2023 are dismissed. (b) W.P. (C) No. 34313/2023 stands allowed. G.O. (Rt) No. 759/2023/WRD. Dated 24.8.2023 (produced as Ext.P9) is quashed. There will be a direction to the 3rd respondent to advise the petitioners in W.P. (C) No. 34313/2023 to the post of Assistant Engineer in terms of Ext.P4 ranked list, and there will be a further direction to the 2nd respondent to appoint the petitioners as Assistant Engineers in the Kerala Water Authority.