IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 2021 of 2009(R)
1. ASHA.P., D/O.K.PONNAMMA,
... Petitioner
Vs
1. STATE OF KERALA, REP.BY SECRETARY TO
... Respondent
2. HIGH COURT OF KERALA, REP. BY THE
3. REGISTRAR(SUBORDINATE JUDICIARY),
4. BABU.K., R/AT CHARUVILA PUTHEN VEEDU
5. KAUSER EDAPPAGATH R/AT.ZAHIRA,
6. BADHARUDEEN.A., R/AT.PANAYIL VEEDU,MYLAK
7. LAKSHMI.K., ADVOCATE, R/AT.SATHYAGRIHA,
8. GIRIJA.P.G., R/AT.KAZHANIPARAMBIL,
9. SHAJITH.T., R/AT.UDAYAM, IMA HALL ROAD,
10. BEVEENA NATHA.K.S.,R/AT.TAJ
11. MANILAL.C.S, R/AT.CHENNATTU HOUSE
12. NAZEERA.S., R/AT.8/61, NELSA , VIDYA
13. BALAMURALEEDHARAN.G., R/AT.SMRUTHI
14. SHEREEF.K.P., R/AT.KADAMBIL,
15. BALAKRISHNAN.K.K., ADVOCATE R/AT.
16. SULEKHA.M., R/AT.PANAMVILAKAM VEEDU,
17. AJITH THANKAYYA, R/AT.PADMALAYAM,
18. ASHA.B.MATHEWS, R/AT.PALLATHU HOUSE
19. SHERLY.S.A., R/AT.PUNNAKKATTUSSERY
20. MOHANAN VALIYAPURAYIL,
21. ANILRAJ.K.K., R/AT.KAYAKANDIYIL HOUSE,
22. LATHA JAYARAJ
23. ANILC.D., R/ATASHA BHAVAN,
24. SUNIL KUMAR.K., R/AT.CHEMBAKA HOUSE
25. CLEMANCE ANTO GRACE THOTTAPPILLY
26. FATHIMMA BEEVI.M.M.,R/AT.SANDRAM,
27. CHITHRA LEKHA.V.K., R/AT.RAMAVILAS,
29. ALPHONSA JOHN, ADVOCATE, R/AT.
30. ALIYAR.M.M.,R/AT.M.M.HOUSE,
31. SIVANANDAN.C.T., R/AT.CHEEKILOTTU
32. BEENA.K.C., R/AT.KOMATHARA HOUSE
For Petitioner :SRI.V.CHITAMBARESH (SR.)
For Respondent :SRI.KRB.KAIMAL (SR.)
The Hon'ble the Chief Justice MR.S.R.BANNURMATH
The Hon'ble MR. Justice K.M.JOSEPH
Dated :12/11/2009
O R D E R
S. R. BANNURMATH, CJ. &
K. M. JOSEPH, J.
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W.P(C).NOS.2021/09 R, 2282/09 R,
2302/09 R, 3543/09 R, 4810/09 R,
14027/09 R & 19032/09,
---------------------------------------------------
Dated this the 12th November, 2009
JUDGMENT
Joseph, J.
Several important and interesting questions arise for our
consideration in this batch of Writ Petitions coming up by
reference by a learned Single Judge, Justice T. R. Ramachandran
Nair. What is the effect of the founding fathers providing for
seven years experience as an Advocate to be eligible for
appointment as a District Judge in Article 233(2) ? Does the
acceptance of the Report of the Shetty Commission by the Apex
Court in the decision in All India Judges’ Association And
Others v. Union of India And Others((2002) 4 SCC 247)
(hereinafter referred to as the All India Judges case) amount to
declaration of law ? What is the impact of the amendment in
the Kerala Higher Judicial Service Rules, 1961 (hereinafter
referred to as the Rules) prescribing the qualification of
WPC.2021/09R & CONN.CASES 2
minimum age as thirtyfive and the maximum age as fortyfive for
appointment as a District Judge on the rights of the writ
petitioners, who had applied for selection and passed the written
test prior to the amendment?
2. The Facts:
The High Court of Kerala issued a Notification dated
16.4.2007 inviting applications for appointment as District
Judges. The last date for receipt of applications was fixed as
30.6.2007. The qualifications prescribed, inter alia, are as
follows:
Qualifications for appointment:
A candidate for appointment as District Judge from the Bar
shall satisfy the following conditions:
(a) He shall be a Citizen of Indian Union.
(b) He shall not have completed 47 years of age on the
first day of January, 2007.(c) He shall be of good character.
(d) He shall be of sound health and active habits and free
from any bodily defect or infirmity which renders
him unfit for such appointment.(e) He shall not have more than one wife living unless
WPC.2021/09R & CONN.CASES 3
exempted by the Government on special grounds.
(f) He shall be a practising Advocate and should
have so practised for a period of not less than 7
(seven) years.Note.-(1): Upper age limit shall be raised by
five years in the case of candidates belonging to
Scheduled Castes or adult members of such Castes
and their children when such adult members are
converted to other religion or Scheduled Tribes and
by three years in the case of candidates belonging to
any of the Other Backward Classes.
(2) For relaxation of age limit for other
categories of persons, provisions in Rule 10 of the
Kerala State and Subordinate Service Rules, 1958
may be referred to. Any one coming within the
description in the Rules and who satisfies the other
conditions can also apply.
(3) Save as otherwise provided, eligibility
shall be determined with reference to the last date
fixed for receipt of the applications.”
The petitioners filed applications pursuant to the Notification.
WPC.2021/09R & CONN.CASES 4
The process of selection contemplated under the Notification
comprises of a written examination and a viva voce. The written
test was held from 27.10.2007 to 29.10.2007. After conduct of
the written test, the Rules came to be amended. The amendment
with which we are concerned, relates to the prescription of
minimum and maximum age. The following is the amendment:
“(d): For clause (b) of sub-rule (2), the
following shall be substituted, namely:-
“(b) He shall have attained the age of 35
years and shall not have completed 45 years of age
on the first day of January of the year in which
applications for appointment are invited:
Provided that the provisions in sub-rule (c)
of Rule 10 of the Kerala State and Subordinate
Service Rules, 1958 raising the upper age limit in
the case of candidates belonging to Scheduled
Castes, adult members of Scheduled Castes and
their children when such adult members are
converted to other religions, Scheduled Tribes and
Other Backward Classes shall be applicable to
such candidates for appointment under Rule (2) (c)
(iii).”
WPC.2021/09R & CONN.CASES 5
After the substitution, the relevant Rule reads as follows:
“3.(2): A candidate for appointment to
category (2) from the Bar shall satisfy the
following general conditions, namely.-
x x x x
(b) He shall have attained the age of 35
years and shall not have completed 45 years of age
on the first day of January of the year in which
applications for appointment are invited.
Provided that the provisions in sub-rule (c) of
Rule 10 of the Kerala State and Subordinate
Service Rules, 1958 raising the upper age limit in
the case of candidates belonging to Scheduled
Castes, adult members of Scheduled Castes and
their children when such adult members are
converted to other religions, Scheduled Tribes and
Other Backward Classes shall be applicable to
such candidates for appointment under Rule (2)(c)
(iii).”
The amendment which came into force “at once”, was published
in the Official Gazette on 12.6.2008. Subsequently, the viva
voce was held from 1.12.2008 to 12.12.1008. The petitioners
(save one) were invited for the interview. The petitioner in W.P.
WPC.2021/09R & CONN.CASES 6
(C).No.2302/09 came to be interviewed pursuant to the
Judgment in W.A. No.229/08. It is subsequently that a select
list came to be published. However, the complaint of the
petitioners is that they stand excluded from selection on the
basis of amendment to the Rules prescribing minimum and
maximum age as aforesaid. That is to say, except for the
petitioner in W.P.(C).No.3543/09, all the other writ petitioners
being below thirtyfive years of age as on 1.1.2007, stand
excluded from being considered for appointment. The petitioner
in W.P.(C).No.3543/09 stands excluded by virtue of his being
over aged in terms of the amended rule.
3. We heard the learned counsel for the writ petitioners,
the learned senior counsel appearing on behalf of the High Court
of Kerala as also the learned counsel appearing for the
contesting parties including the State of Kerala.
The Contentions:
4. Shri K. Jaju Babu, learned counsel for the petitioners in
W.P.(C).No. 2282/09 would essentially raise two contentions
WPC.2021/09R & CONN.CASES 7
before us. He would submit that the petitioners fulfilled the
criteria which were stipulated in the Notification. The only
stipulation as to age contained in the Notification as also the
Rules was that the candidate should not have crossed fortyseven
years of age. He would submit that the Notification makes it
clear that the question of qualifications and conditions would be
judged with reference to the last day prescribed for receipt of
applications. The last date was 30.6.2007. The petitioners
could not, therefore, be eliminated with reference to the
amendment incorporated in the Rules by publication in the
Gazette dated 12.6.2008. He would submit that the amendment
does not have any retrospective effect. The amendment is
purely prospective as is evident from the words indicating that
the amendment would come into effect at once. He would,
therefore, submit that the amendment, even if it is valid, would
not apply in respect of the writ petitioners. He would press into
service the principle that once a recruitment process has
commenced, the Rules of the game cannot be altered and even if
WPC.2021/09R & CONN.CASES 8
there is an alteration, it will not affect the rights of those who
had already applied and the matters must be decided in respect
of the applicants with reference to the qualifications and
conditions as they prevailed with reference to the relevant day
which in this case, is the last day for receipt of the applications.
In this regard, he relied on the case law, which we shall advert
to.
5. Shri K. Jayakumar, learned counsel appearing for the
petitioner in W.P.(C). No.19032/09 would, apart from adopting
the contentions of Shri Jaju Babu, contend as follows:
The amendment to the Rules which is impugned by him is
ultra vires of Article 233(2) of the Constitution. According to
him, the prescription of a minimum age limit of thirtyfive years
would be opposed to the prescription of the eligibility condition
of seven years experience as an Advocate. He would submit
that subordinate legislation cannot, if it does not square with the
constitutional provisions, survive judicial scrutiny. He would
submit that the prescription of eligibility to be appointed as a
WPC.2021/09R & CONN.CASES 9
District Judge being only that the candidate should have seven
years practice would impliedly exclude the fixation of the
minimum age of thirtyfive years. He would expatiate and
submit that if the candidate has seven years of practice and thus
fulfills the requirement of Article 233(2), an age limit which is
incompatible with the prescription of seven years as the
eligibility condition is impermissible. He would contend that
without an amendment to Article 233, the amendment was
illegal.
6. Shri M. Pathros Mathai, learned senior counsel
appearing for the petitioner in W.P.(C).No.14027/09, however,
would contend that the petitioner in his case, in fact, complies
with the condition that the candidate should be thirtyfive years
of age. His argument is that in accepting the recommendations
of the Shetty Commission, all that the Supreme Court has
decided was that the candidate should have a minimum age of
thirtyfive years to be appointed as District Judge. He does not
dispute the fact that the petitioner was not thirtyfive years of age
WPC.2021/09R & CONN.CASES 10
as on 1.1.2007. But, he would contend that there would be no
transgression of the recommendation which stood accepted by
the Apex Court that the candidate should be thirtyfive years of
age when he is appointed as a District Judge, in the case of the
petitioner. It is the petitioner’s case that he attained thirtyfive
years of age before the cut off date, namely the last day for
receipt of applications. He would also submit that the
amendment in the Rule is only prospective and the amendment
could not adversely affect the fate of the petitioner. The
decision in Dipitimayee Parida v. State of Orissa & Others
((2008 (10) SCC 687) is an authority for the proposition that the
question of qualification or extra qualification should be
appreciated with reference to the last date for filing of the
applications. It is in the same vein, that the decision of the Apex
Court in Ashok Kumar Sonkar v. Union of India & Others
((2007) 4 SCC 54) was rendered. Shri M. Pathros Mathai also
relied on the decision in Subhash Chand Jain v. Ist Additional
District And Sessions Judge, Saharanpur And Others (AIR 1989
WPC.2021/09R & CONN.CASES 11
SC 1070). Therein, the Court took the view that the employees
who had been appointed before 1968 were entitled to be
governed in the matter of seniority on the basis of the length of
service and the Rule introduced in 1968 by which confirmation
was made, the basis to determine that inter se seniority could not
affect their rights. Thus, the proposition canvassed is that a
vested right cannot be taken away retrospectively. In the same
vein, he relied on the decision of the Apex Court in R. S. Ajara
And Others v. State of Gujarat and Others ((1997) 3 SCC 641).
7. Shri S. Sreekumar, learned counsel appearing for the
petitioner in W.P.(C). No.2302/09 would also essentially adopt
the contentions of Shri K. Jaju Babu. He would further contend
that in the facts of this case, the respondents are estopped from
invoking the amendment against the petitioner. He would
submit that the petitioner had fared exceedingly well in the
examination, but was not called for the interview. The reason
given was that though the petitioner was practising as an
Advocate on the relevant day, subsequently he came to be
WPC.2021/09R & CONN.CASES 12
selected as a Munsiff. He approached this Court by filing W.P.
(C).No.34161/08. Though the learned Single Judge dismissed
the Writ Petition, a Division Bench of this Court allowed his
Writ Appeal in the decision in Muhammed Raees v. High Court
of Kerala (2008 (4) KLT 916). He would draw our attention to
the aforesaid Judgment. He would contend that the amendment
came into force on 12.6.2008. It was certainly open to the
respondents to have set up the amendment against him in the
earlier Writ Petition, he contends. They failed to do so. The plea
is, therefore, barred by res judicata or constructive res judicata,
he contends. The High Court allowed him to participate in the
interview. He would point out that the petitioner has secured
424 marks and he stood first. He would submit that in such
circumstances, the official respondents are estopped from
invoking the amendment to the Rule to defeat his cause. He
would submit that the petitioner by mere reason of being below
thirtyfive years of age should not be eliminated, having regard to
the remarkable performance that he had shown.
WPC.2021/09R & CONN.CASES 13
8. Shri T. Sethumadhavan, learned counsel appearing for
the petitioner in W.P.(C). No.3543/09 would contend that the
petitioner in this case was not over-aged, going by the Rule as it
stood prior to the amendment. He would also contend that the
amendment cannot be invoked to defeat his rights as it stood
crystallized on the date on which he applied. He would further
point out that under Rule 10(c) of the KS & SSR which is
applicable, he was entitled to relaxation of three years being a
member of the OBC. He would also point out that the petitioner
will not get another chance and this is the last chance, which he
has, to be considered for the post of District Judge. He does not
dispute that the petitioner was fortynine years of age as on
1.1.2007.
9. Shri Jacob P. Alex, learned counsel for the petitioner in
W.P.(C).No.4810/09 adopted the contentions of Shri Jaju Babu.
10. Shri K. R. B. Kaimal, learned senior counsel
appearing for the High Court of Kerala would address the
following contentions:
WPC.2021/09R & CONN.CASES 14
Entry (41) of List II of the VIIth Schedule to the
Constitution provides for legislative power with the State
Legislature as follows:
“41. State Public Services; State Public Service
Commission.”
Prior to the enactment of the Kerala Public Services Act, 1968,
Article 309 of the Constitution provided for power with the
State to frame law governing the conditions of service of a
District Judge also and in the absence of a law made by the
State Legislature, it was open to the Government to frame Rules.
It was accordingly that the Rules have been framed in the year
1961. Subsequently, the Kerala Public Services Act, 1968 came
to be enacted. The Act, inter alia, provides power with the
Government of Kerala to frame Rules. The Judicial Service is
one of the Services mentioned in the Act. Thus, he would
submit that the Government of Kerala, after 1968 had power to
frame Rules under the Kerala Public Services Act, 1968. He
would submit that the Shetty Commission specifically
recommended the prescription of minimum age of thirtyfive for
WPC.2021/09R & CONN.CASES 15
appointment as District Judge, as much as it recommended the
maximum age of fortyfive for the said post. The matter came up
before the Apex Court and the Apex Court accepted the
recommendations, except certain recommendations which were
either not accepted or accepted in the modified form. As far as
prescription of minimum age and maximum age to the post of
District Judge was concerned, he would submit that it cannot be
in the region of dispute that the recommendations stood
accepted. He would submit that the Judgment of the Apex
Court was declaratory in nature. In other words, he would
submit that after the Judgment of the Apex Court, unless the
person is between the age of thirtyfive and fortyfive, he cannot
be appointed as District Judge. It may be true, he contends, that
on account of some delay in passing the amendment, the formal
amendment to the Rules was gazetted only on 12.6.2008. He
would submit that in view of the Judgment of the Apex Court,
the petitioners cannot have any right to seek the relief they have
sought. No doubt, he does not have quarrel with the proposition
WPC.2021/09R & CONN.CASES 16
enunciated in a catena of decisions of the Supreme Court
relating to the effect of an amendment made during the course of
a selection process.
11. Shri Elvin Peter, learned counsel appearing on behalf
of respondent No. 12 in W.P.(C).No. 2282/09 would raise the
following submissions:
He would submit that the principle enunciated in the
decisions of the Apex Court relied on by the petitioners may not
apply to the facts of this case. He would submit that this Court
is concerned in these cases with selection to the post of District
Judge. The selection is sought to be made by direct recruitment.
The appointees would be holding upon appointment, the post of
District Judge, an entry post. He would contend that Article
233 of the Constitution specifically deals with the matter of
appointment to the post of District Judge. Article 233(1)
provides for appointment by the Government in consultation
with the High Court. He would submit that in such
circumstances, in view of the Judgment of the Apex Court by
WPC.2021/09R & CONN.CASES 17
which the recommendations of the Shetty Commission
regarding the minimum and maximum age stood accepted and
what is more, the Government of Kerala stood directed to
implement the same with the outer time limit of 30.9.2002 by
which compliance reports were to be filed by the States as well
as another, being fixed, if the High Court and the Government
of Kerala decided that the minimum age should be thirtyfive and
the maximum age should be fortyfive, an inroad could not be
made into the same under any Rule framed by the Government.
In this context, he relied on the Judgment of the Apex Court in
State of Bihar And Another v. Bal Mukund Sah And Others
((2000) 4 SCC 640). In the same, the Apex Court was dealing
with the law made by the Legislature of the State of Bihar by
which it provided for reservation for appointment to the post of
District Judge. There was no consultation with the High Court.
We will deal with it in detail later on. He would submit that in
view of the Judgment in the All India judges’ case, these Writ
Petitions are not maintainable. Shri Elvin Peter also would
WPC.2021/09R & CONN.CASES 18
submit that there is no merit in the contention based on Article
233(2) of the Constitution, namely the complaint that the
prescription of the age limit is ultra vires the eligibility condition
declared in the same. Learned counsel relied on the decision of
this Court in Sreekumar v. High Court of Kerala (1995 (2) KLT
88). He would further contend that what the petitioners are
seeking in these cases, is a writ of mandamus. He would point
out that writ of mandamus may not be issued in the light of the
decision of the Apex Court in the All India Judges’ case (2002
(4) SCC 247). In this regard, he relied on the decision of the
Apex Court in Delhi Development Authority v. Skipper
Construction Co. (P) Ltd. And Another ((1996) 4 SCC 622).
12. Shri P. C. Sasidharan, learned counsel appearing on
behalf of the 6th and 26th respondents in W.P.(C). No. 2282/09
would adopt the contentions raised by the respondents. He
would further rely on the Judgment of a learned Single Judge of
this Court in Ajith v. State of Kerala (2007 (2) KLT 1044).
Therein, the learned Single Judge was concerned with the
WPC.2021/09R & CONN.CASES 19
appointment to the post of Munsiff. The complaint raised was
that there was no consultation as contemplated in law with the
High Court. The learned Single Judge found merit in the
contention. However, the learned Single Judge took note of the
decision of the Apex Court in the All India Judges’ case (supra)
and proceeded to uphold the impugned Rule. Shri P.C.
Sasidharan would also in the alternative, advance the following
argument:
He would submit that even accepting the case of the
petitioners, the principle regarding an amendment having
prospective effect not adversely affecting the rights of those
who have already applied, could not be pressed into service in
respect of vacancies which arose after the date of the
amendment. This principle is accepted by a Full Bench of this
court in Mohanan v. Director of Homeopathy (2006 (3) KLT
641 (FB)), following the decision of the Apex Court. He would
also submit that no relief may be granted in view of the
developments culminating in the Judgment of the Apex Court in
WPC.2021/09R & CONN.CASES 20
the All India Judges’ case (supra). The delay in amending the
Rules on the part of the Constitutional Authorities, he submitted,
could not be considered as of moment. He would submit that
any appointment of the petitioners in the circumstances would
be vulnerable and can be questioned in appropriately instituted
proceedings.
13. Shri A. Mohamed Mustaque, learned counsel
appearing for the fifth respondent in W.P.(C).No.2282/09
would make the following submissions:
He would contend that a distinction must be drawn
between cases where a party has a vested right and cases where
the party has accrued right. According to him, all that has
happened is that pursuant to the Notification issued in the year
2007, an examination was held. Even prior to the date of the
interview, the amendment in question was enacted vetoing any
appointment unless the candidate fulfills the prescription as to
the minimum and maximum age. He would submit that it is not
a case where either any appointment has taken place or even the
WPC.2021/09R & CONN.CASES 21
select list had been prepared in pursuance of the Notification.
He would contend, therefore, that the principle which was
pressed into service by the petitioners could not be applied in
the facts situation present in these cases. He would further
contend that in the facts of these cases, what the Court should
enquire is whether it would be arbitrary for the official
respondents to deny the right to be considered for appointment,
in view of the indisputable fact that following the
recommendation of the High Power Judicial Commission, the
Apex Court itself accepted the prescription of minimum and
maximum age. He would contend that it may be true that
pursuant to the Notification, the candidates may have applied.
They may have sat for the examination. But, they stood
overtaken by the amendment to the Rule. They did not have any
accrued right to appointment. In such circumstances, he
contended that if the Court did not find any irrationality or
arbitrariness in the actual decisions and the reasons for the
decision to prescribe the minimum and maximum age, it may not
WPC.2021/09R & CONN.CASES 22
be open to the writ petitioners to impugn their elimination. It is
pointed out that the petitioners do not question the rationale of
the amendment. He pointed out that there is a background to
the lis and it essentially consisted of the felt necessity to vitalise
the judiciary and the perceived distinction between the civil
service on the one hand and judiciary on the other.
14. Shri A. Mohamed Mustaque would contend further
that what the petitioners have is a legitimate expectation. He
would point out that a legitimate expectation can be defeated, if
there is a change in policy. (See Madras City Wine Merchants’
Association And Another v. State of T.N. And Another ((1994)
5 SCC 509), Punjab Communications Ltd. v. Union of India and
Others ((1999) 4 SCC 727) and State of M.P. And Others v.
Raghuveer Singh Yadav And Others ((1994) 6 SCC 151) and
Kuldeep Singh v. Govt. of NCT of Delhi ((2006) 5 SCC 702)).
In the last decision, the Court dealing with the question relating
to the grant of licence to vend liquor, took the view that there
can be no vested right with the applicant on the basis of the
WPC.2021/09R & CONN.CASES 23
applicant having made huge investments. He would, therefore,
contend that when what existed is a legitimate expectation and
there is a change of policy, it is to be tested on the anvil of
Articles 14 and 16. He would further contend that Article 233
of the Constitution enables the High Court to recommend
persons based on the policy which in turn, is based on the
decision of the Apex Court. It is the prerogative power of the
High Court which is available under Article 233, he contends. If
it were a matter affecting selection process, the time factor may
be relevant, he contends. But, it is not so. He further contended
that the concern of the Apex Court for preserving independence
in judiciary has been evinced by it from 1990 onwards, in a
series of decisions. Referring to the decision of the Apex Court
in Indra Sawhney v. Union of India And Others ((2000 (1) SCC
168), he would contend that a mandamus cannot be issued to
override the direction of the Supreme Court. He further relied
on the decision of the Apex Court in Dr. Chanchal Goyal (Mrs).
v. State of Rajasthan (2003 (3) SCC 485) and Jitendra Kumar
WPC.2021/09R & CONN.CASES 24
And Others v. State of Haryana And Another ((2008) 2 SCC
161). The last was a case where the question was of legitimate
expectation. There was a change of government. The new
Government decided not to act on the select list which had been
published by the previous Government. The decision was to not
appoint for valid reasons. Then, he relied on the decision of the
Apex Court in High Court of Judicature at Bombay through
Registrar And Another v. Brij Mohan Gupta (Dead) through Lrs.
And Another ((2003) 2 SCC 390). We shall notice the said
case in greater detail, as it may be crucial for a proper decision
in this matter. Shri R.K. Muraleedharan, learned counsel
appearing for the 14th respondent in W.P.(C). No.2282/09
adopted the contentions of the respondents.
15. Shri Nandakumar, learned Government Pleader made
the following submissions:
He contended that in some cases, Rules were not
challenged and in W.P.(C).No.3543/09, the prayer is for a writ
of certiorari which is misconceived. (Subsequently proper
WPC.2021/09R & CONN.CASES 25
prayers stand incorporated by amendment). He submitted that
the Government could not make a Rule governing the selection
to the post of District Judge by itself. The proposal from the
High Court came on 26.8.2006 and, therefore, he would contend
that the intention of the High Court was to amend the Rule
fixing the age limit in tune with the Supreme Court Judgment
prior to the Notification. No doubt, he would take the stand
that the Judgment of the Apex Court in the All India Judges’
case (supra) was not a completely declaratory Judgment. But,
he would submit that it is binding on the State and the High
Court. He referred to R.L. Bansal And Others v. Union of India
And Others ((1992) 2 Suppl. SCC 318) and Karnataka Bank
Limited v. State of A.P. & Others ((2008) (2) SCC 254) for the
proposition that candidates have no legal right to be appointed.
He also relied on Mani Subrat Jain And Others v. State of
Haryana And Others ((1977) 1 SCC 486) and Shankarsan Dash
v. Union of India ((1991) 3 SCC 47) in this regard. As regards
the validity of the Rule is concerned, he would submit that no
WPC.2021/09R & CONN.CASES 26
ground has been made out to invalidate the Rule. He said that
none of the vitiating factors as laid down by a Division Bench of
this Court to unsettle a Rule were present in this case. (See
Pankajaksy & Others v. George Mathew & Others (1987 (2)
KLT 723).
16. Shri K. P. Dandapani, learned senior counsel for
respondents 4 and 16 in W.P.(C). No.2021/09 and for the same
respondents in the connected cases, adopted the contentions of
the other respondents. In addition, he contended that the
amendment in question which was brought on 09.6.2008 was a
curatory amendment, and it would have effect in respect of the
petitioners also. In this regard, he relied on the decision of the
Apex Court in S.S. Grewal v. State of Punjab And Others (1993
Suppl. (3) SCC 234), S. B. Bhattacharjee v. S. D. Majumdar
And Others((2007) 10 SCC 513 Paragraph 36) and Renganatha
Pai v. DIG of Police (1994 (2) KLT 366).
17. Shri S. Sreekumar, learned counsel for the petitioner,
in reply, would refer us to the decision in Comptroller And
WPC.2021/09R & CONN.CASES 27
Auditor General of India, Gian Prakash, New Delhi And
Another v. K. S. Jagannathan And Another ((1986) 2 SCC 679)
in regard to the scope of a writ of mandamus. He also relied on
the decision in Ashok Kumar Sonkar v. Union of India And
Others ((2007) (4) SCC 54) which related to the question of cut
off date.
18. Shri K. Jayakumar, in his reply, submits that the
principle enunciated in K. Manjusree v. State of Andhra Pradesh
And Another ((2008) 3 SCC 512) has been accepted as laying
down the correct law in Hemani Malhotra v. High Court of
Delhi ((2008 (7) SCC 11). He also sought to draw support from
certain recent decisions of the Apex Court in Amlan Jyoti
Borooah v. State of Assam And Others ((2009) 3 SCC 227),
and Mohd. Sohrab Khan v. Aligarh Muslim University And
Others ((2009) 4 SCC 555). He would contend that the decision
of the Division Bench of this Court in Sahadeva Valigan v. State
of Kerala (1988 (1) KLT 202) was not applicable to the facts
and that was a case where initially the power of selection of
WPC.2021/09R & CONN.CASES 28
Munsiff’s was lodged with the Public Service Commission and a
conscious decision was taken to vest the power with the High
Court. He would submit that it may be different, if it was
decided not to proceed with the Notification issued in 2007, to
cancel the same and to proceed afresh in which case the
amendment in question may apply. He would contend that the
argument of the respondent based on the need for maintaining
independence in judiciary equally involved the need for the
judiciary to follow the rule of law and he invoked the principle
established by the Apex Court in Maharashtra State Judges’
Association And Others v. Registrar General, High Court of
Judicature At Bombay and Another ((2009) 1 SCC 569) and
contended that the Apex Court itself contemplated the need for
an amendment and, therefore, there is no merit in the argument
of the Apex Court decision in the matter operating as an
amendment of the Rule itself. Reliance was placed on the
decision of the Apex Court in Civil Appeal No.1867/2006.
19. Shri K. Jaju Babu, learned counsel, would apart from
WPC.2021/09R & CONN.CASES 29
reiterating the contentions, submit that the amendment of the
Rule being purely prospective, it could not interfere with the
destiny of the applicants pursuant to the Notification of the year
2007. Learned counsel appearing in W.P.(C).No.14027/09
would reiterate that the petitioner in his case had completed
thirtyfive years of age prior to the last date for receipt of
applications as per the Notification and accepting that the
amendment was having retro-active operation, in the wake of the
decision of the Apex Court in so far as the Apex Court had not
stipulated the time at which the candidate must fulfill the
requirement of minimum age, he would submit that it is a
principle incorporated in the Notification also, namely the
fulfillment of the conditions must be with reference to the last
date of receipt of applications, which binds. He also points out
that in regard to the vacancies which arose prior to the
amendment, it is the Rule in force prior to the amendment which
must hold good. In this context, he relied on the decision of the
Apex Court in Y.V. Rangiah And Others v. J. Sreenivasa Rao
WPC.2021/09R & CONN.CASES 30
((1983) 3 SCC 284 at paragraph 9). Of course, he would
submit that if the Court accepts the principle that the amendment
has no effect on the petitioners, the petitioner is entitled to
succeed on that score. In reply to the aforesaid submissions,
Shri K.R. B. Kaimal would submit that the Clause in the
Notification provided that the last date shall be relevant save as
otherwise provided. The relevance of the first day of the year is
justified with reference to the Public Services (Date for
Determination of Age for Eligibility For Appointment) Rules,
1977, he contended. He would submit that even the
Notification as issued, contemplated the fixation of age with
reference to 1.1.2007 in keeping with the said Rules. However,
Shri P. B. Suresh Kumar would submit that the said Rules
cannot apply as the Rules providing for selection to the post of
District Judge did not contemplate any minimum age and,
therefore, the question of the Rules relied on by Shri K. R. B.
Kaimal operating on the Rules, would not arise.
WPC.2021/09R & CONN.CASES 31 FINDINGS:20. Whether the Amended Rule is valid And Whether
it is ultra vires Article 233(2) of the Constitution ?
Article 233 reads as follows:
“233. Appointment of District Judges.-(1)
Appointments of persons to be, and the posting and
promotion of, District Judges in any State shall be
made by the Governor of the State in consultation
with the High Court exercising jurisdiction in
relation to such State.
(2) A person not already in the service of the
Union or of the State shall only be eligible to be
appointed as District Judge, if he has been for not
less than seven years an Advocate or a Pleader and
is recommended by the High Court for
appointment.”
As far as the contention that the prescription of age limit is ultra
vires of Article 233(2), we are of the view that there is no merit
in the contention. Article 233(2) undoubtedly provides that in
order that a person be considered eligible, he should have seven
years of experience as an Advocate. It is quite clear that the
WPC.2021/09R & CONN.CASES 32
founding fathers only intended to incorporate the requirement
as to practice, i.e. the number of years of standing that an
Advocate should possess to render him eligible. We find it
inconceivable that the founding fathers would have considered
it not being open to the appropriate authority to prescribe
qualifications which do not directly conflict with the
constitutional mandate. Take for instance: the prescription of
good character as a qualification. The prescription of good
character is an objective and universal prescription for
appointments in all situations. In fact, the possession of good
character would be of the utmost importance for a person who is
to hold the judicial post. We find, in fact, that good character is
prescribed in the Rules as one of the qualifications for
appointment as District Judge. Can it be said that prescription
of character by the appropriate authority in consultation with the
High Court is liable to be found incompatible with the dictate of
Article 233(2) ? We certainly think not. It is to be further noted
that it is not as if by the prescription of the age limit, the law
WPC.2021/09R & CONN.CASES 33
giver is providing for a qualification contrary to what is
provided in Article 233(2) of the Constitution. If for instance,
the Rule was amended to provide for a qualifying period of less
than seven years, it would be in the teeth of the constitutional
embargo. Apart from the fact that this is an amendment which is
necessitated by reason of the acceptance of the Shetty
Commission in the All India Judges’ case by the Apex Court,
on an interpretation of the provision, we do not see any warrant
for the contention that Article 233(2) will not brook any
prescription as to age as is sought to be done. The legislative
power is undoubtedly present. In fact, if we were to accept the
case of the petitioners, then it would rob the legislative body of
power to provide for many of the other indispensable
qualifications for appointment to a post of vital importance,
namely the post of a District Judge. We do not think that an
amendment to Article 233(2) was indispensable to sustain the
validity of the amended Rule. We do not think that the
petitioners have made out any case to declare the amendment to
WPC.2021/09R & CONN.CASES 34
the Rule as bad. Certainly, the amendment which is based on
the recommendation of the Shetty Commission and accepted by
the Apex Court and also recommended by the High Court,
cannot be found to be irrational or arbitrary in any manner. We
also do not find any merit in the contention that it is ultra vires
Article 233 of the Constitution.
21. Whether the Amendment is curative, clarificatory
and declaratory in nature and hence retrospective ?
We are of the view that the amendment cannot be
considered to be declaratory or curatory or clarificatory. The
Rules as they stood at the time of issuance of the Notification
did not provide for any minimum or maximum age. All that it
declared was that the candidate should not have crossed
fortyseven years of age. Thus, any person who was below
fortyseven years of age was considered eligible as per the Rules,
to be selected and appointed as a District Judge. About this, we
cannot hold that the matter could be said to be in the region of
any doubt. There was no room for any ambiguity. There was
no omission in the Rules as they stood. It is no doubt true that
WPC.2021/09R & CONN.CASES 35
the High Court and the State of Kerala were bound to implement
the prescription of age limit. But, the delay in amending the
Rules and finally deciding to amend the Rules without
retrospective effect only expressly (the Rules as amended were
to come into force at once, spelling out prospectivity alone),
cannot have the effect of the amendment bearing operation into
the past.
22. In S.S. Grewal v. State of Punjab And Others (1993
Supp.(3) SCC 234), the Apex Court was dealing with the
question relating to inter se seniority between direct recruits
drawn from general quota and the reserve quota as also the
question of sub-reservation and sub-roster. Letter dated April 8,
1980 gave certain clarifications on certain doubts created by
some Departments in the matter of implementation of the
instructions contained in an earlier letter. It is in this context
that the Court took the view that the clarifications contained in
the later letter must be read as part of the instructions contained
in the earlier letter and in this context, it was, inter alia, held as
WPC.2021/09R & CONN.CASES 36
follows:
“In this context, it may be stated that
according to the principles of statutory
construction, a Statute which is explanatory or
clarificatory of the earlier enactment is usually
held to be retrospective (See Craies on Statute Law,
7th Edition, Page 58.)”
In S.B. Bhattacharjee v. S. D. Majumdar And Others ((2007) 10
SCC 513), the Court was dealing with the interpretation of an
Office Memorandum relating to the manner in which the ACRs
are to be considered for promotion to the post of Executive
Engineer. Government issued a clarification pending the Writ
Petition filed before the Court regarding the said provision. The
Court after repelling the contention that the clarification was in
the teeth of the illustration given in the Office Memorandum and
after adverting to S.S. Grewal’s case (supra), held that the
clarification being explanatory and/or clarificatory, will have a
retrospective effect. In Devadas v. Dy. Labour Commissioner
(1995 (2) KLT 366), the facts were as follows:
WPC.2021/09R & CONN.CASES 37
This Court had held that a Secretary or Branch Manager
of a Co-operative Society will not be entitled to claim
subsistence allowance under the Payment of Subsistence
Allowance Act. A proviso was added in rule 198 (6) of the Co-
operative Societies Rules, to the effect that an employee not
coming under the purview of the Payment of Subsistence
Allowance Act, 1972 shall be entitled to subsistence allowance
at the rate admissible to State Government employees under the
Kerala Service Rules. The proviso was introduced on
26.6.1990. The contention of the employee based on the said
proviso was sought to be overcome by pointing out that the
claim was for various periods prior to the introduction of the
proviso. The Court held, inter alia, as follows:
“4. The newly added proviso was introduced
into the Rules in exercise of the powers conferred
by S. 109 of the Co-operative Societies Act read
with S. 80(3) thereof. The Explanatory Note states
that as per the provisions in the Kerala Payment of
Subsistence Act, 1972 an employee in a managerial
cadre or an administrative capacity is not entitled
WPC.2021/09R & CONN.CASES 38
to subsistence allowance and so, the proposal is to
amend the rules so as to enable payment of
subsistence allowance to an employee not covered
by the above said Act. As the amendment has been
introduced in the wake of the decisions of this Court
holding that Secretary or Branch Manager of a Co-
operative Society will not be entitled to claim
subsistence allowance as provided under the
Payment of Subsistence Allowance Act, it can only
be construed as retrospective as it is declaratory in
nature. Presumption against retrospective
operation is not applicable to declaratory statutes.
As the proviso has been introduced to the Rules
with a view to declare that an employee in a
managerial cadre or having administrative capacity
is also entitled to subsistence allowance under the
Payment of Subsistence Allowance Act, 1972, its
effect is certainly declaratory and so cannot be but
retrospective. It cannot be doubted that the
introduction of the newly added proviso was really
for removal of doubts and also for a definite and
positive clarification. It is settled law that if a
statute is curative or merely declaratory of the
previous law retrospective operation is generally
WPC.2021/09R & CONN.CASES 39
intended. (See Channan Singh v. Jai Kour (AIR
1970 SC 349 para.5). As the proviso has been
added to get over the difficulty encountered by an
employee in a managerial cadre or administrative
capacity of the society being not entitled to
subsistence allowance under the Payment of
Subsistence Allowance Act and as it can be
construed only as declaratory in nature, we hold
that it has retrospective operation.”
23. We have already noted that the extant Rules prevailing
on the date of the Notification as also the Notification clearly
provided for restriction as to age only by declaring that the
candidate should not exceed fortyseven years of age. In Shri
Chaman Singh And Another v. Srimathi Jaikaur ((1969) 2 SCC
429), the Court considered whether the Punjab Pre-emption
Amendment Act 1964 was clarificatory or declaratory. The Suit
was based on the right of pre-emption. The Suit was brought by
a daughter of one Santa Singh who died leaving behind him a
widow who sold certain lands. The respondent/plaintiff was
daughter from another wife. The Court, inter alia, held in
WPC.2021/09R & CONN.CASES 40
paragraphs 5 and 6 as follows:
“5. It appears to us that the Amendment Act
of 1964 was merely of a clarificatory or
declaratory nature. Even in the absence of the
words which were inserted by the Amendment Act
of 1964 in Section 15(2)(b), the only possible
interpretation and meaning of the words “in the
son or daughter of such female” could have
reference to and cover the son or daughter of the
husband of the female.
6. If the above discussion is kept in view,
there is no difficulty in attributing a retroactive
intention to the Legislature when the Amendment
Act of 1964 was enacted. It is well settled that if a
statute is curative or merely declares the previous
law retroactive operation would be more rightly
ascribed to it than the legislation which may
prejudicially affect past rights and transactions.”
In Statute Law by Craies, which has been approved in Central
Bank of India v. Their Workmen (AIR 1960 SC 12), the learned
Author would state as follows:
“For modern purposes, a declaratory Act
may be defined as an Act to remove doubts existing
WPC.2021/09R & CONN.CASES 41
as to the common law, or the meaning or effect of
any statute. Such Acts are usually held to be
retrospective.”
24. The unamended Rules as also the terms of the
Notification created legal rights in favour of all those who were
within the age limit of fortyseven years, to apply and to be
considered for selection. There can be no room for any
ambiguity, nor can there be any room for invoking the principle
of the amendment being a declaratory Statute.
25. Whether there is an axiomatic amendment of the
statutory Rule by virtue of the decision of the Apex
Court in the Judges’ case (supra) ? Whether the
aforesaid Judgment amounts to a declaration of law ?
The amendment of a statutory rule is a legislative exercise.
No doubt, the legislative power is normally exercised by the
Legislative Bodies. But, legislative power is also exercised by
the other Organs of the State. The Rules were originally framed
under the provisions of Article 309 of the Constitution. On the
enactment of the Kerala Public Services Act, 1968, the source of
legislative power can be said to be the said enactment. It is
WPC.2021/09R & CONN.CASES 42
professedly under the said Act that the amendment in question
has been enacted. The proposal for the amendment emanating
from the High Court in the year 2006, for some reason, the
matter did not receive the immediate attention it truly deserved
and it is only in the middle of 2008, as already noticed, that the
amendment came into force. Thus, both the High Court and the
Government are privy to the Rule making process in amending
the Rule in question.
26. The Shetty Commission undoubtedly did recommend
the prescription of a minimum age for appointment as a District
Judge at thirtyfive years. So also, it recommended the maximum
age of fortyfive years. Nobody can have a case that the mere
recommendation of the Shetty Commission had the effect of
amending the Statutory Rule. Undoubtedly, the Supreme Court
must be treated as having accepted the recommendation of the
Shetty Commission as regards the prescription of the minimum
and the maximum age for the post of District Judge. A perusal
of the Judgment in the All India Judges’ case (supra), would
WPC.2021/09R & CONN.CASES 43
make it clear that the Apex Court has directed the
implementation of the recommendations. Equally, the Apex
Court had in its contemplation, amendment to the Rules
wherever they were necessary. A perusal of paragraph 38 is
necessary in this regard. It reads as follows:
“38. We are aware that it will become
necessary for service and other rules to be
amended so as to implement this judgment.
Firstly, with regard to the pay scales, the Shetty
Commission has approved the pay scales with
effect from 1-1-1996 but has directed the same to
be paid with effect from 1-7-1996. The pay scales
as so approved by us are with effect from 1-7-
1996. However, it will take some time for the
States to make necessary financial arrangements
for the implementation of the revised pay scales.
The Judicial Officers shall be paid the salary in
the revised pay scales as approved by this Court
with effect from 1-7-2002. The arrears of salary
between 1-7-1996to 30-6-2002, will either be paid
in cash or the States may make the payment by
crediting the same in the provident fund account
of the respective Judicial Officers. Furthermore,
WPC.2021/09R & CONN.CASES 44
the payment by credit or otherwise should be
spread over between the years 1-7-1996 to 30-6-
2002 so as to minimise the income tax liability
which may be payable thereon. In calculating the
arrears, the Government will, of course, take into
account the interim relief which had been granted
and drawn by the Judicial officers. The amount to
be credited in the provident fund account would
also be after deducting the income tax payable.”
((2002) 4 SCC 247).
The Apex Court has not declared that from the date of the
Judgment, the minimum age of a person to be appointed as a
District Judge will be thirtyfive years of age or that the
maximum age cannot exceed fortyfive years. It is not directed
that the age limit as aforesaid shall come into force from the date
of the Judgment. It is also not directed that the age limits
recommended by the Shetty Commission will come into force
on a specified future date. No doubt, it has in paragraph 39
directed as follows:
“39. The States as well as the Union of
India shall submit their compliance report by 30-
WPC.2021/09R & CONN.CASES 45
9-2002. Case be listed thereafter for further
orders.”
27. It is necessary also to advert to certain decisions in this
context. In High Court of Judicature at Bombay v. Brij Mohan
Gupta (Dead) through Lrs. and Another ((2003) 2 SCC 390)
relied on by Shri A. Mohamed Mustaque, the question which
arose for consideration arose as follows:
The appellant was a member of the Judicial Service. The
Statutory Rule provided that a direct recruit could continue so as
to have a minimum service of ten years so as to draw pension.
Of course, there was an outer limit of sixty years for such
continuance. The Apex Court had in its decision directed that
the District Judges could continue till they attain the age of sixty
years. However, it was hedged in with the limitation that the
High Court was to screen such candidates for the purpose of
deciding as to whether they could be permitted to continue till
they attain the age of sixty years. Efficiency, integrity and other
aspects were to be looked into. The High Court found that the
appellant should not be permitted to continue. It was in this
WPC.2021/09R & CONN.CASES 46
context that the Apex Court proceeded to hold as follows:
“11. In our view, the exercise of setting up a
committee by the Chief Justice, the
recommendation made by the Committee and also
finally the administrative order passed by the High
Court, were strictly in terms of Judges’ case I and
Judges’ case II. In fact, by virtue of Judges’ case I
and Judges’ case II, Rule 10(3)(c) stood
subrogated. We are, therefore, of the view that
the judgment under challenge is not in conformity
with the aforesaid decisions and is liable to be set
aside.”
In this regard, we must at once notice what the Apex Court had
decided and directed in All India Judges’ Association v. Union
of India ((1993) 4 SCC 288). It is relevant to extract paragraphs
30 and 31 which we do as follows:
“30. There is, however, one aspect we should
emphasise here. To that extent, the direction
contained in the main judgment under review shall
stand modified. The benefit of the increase of the
retirement age to 60 years, shall not be available
automatically to all Judicial Officers irrespective of
WPC.2021/09R & CONN.CASES 47
their past record of service and evidence of their
continued utility to the judicial system. The benefit
will be available to those who, in the opinion of the
respective High Courts, have a potential for
continued useful service. It is not intended as a
windfall for the indolent, the infirm and those of
doubtful integrity, reputation and utility. The
potential for continued utility shall be assessed and
evaluated by appropriate Committees of Judges of
the respective High Courts constituted and headed
by the Chief Justices of the High Courts and the
evaluation shall be made on the basis of the
Judicial Officer’s past record of service, characte
rolls, equality of judgments and other relevant
matters.
31. The High Court should undertake and
complete the exercise in case of Officers about to
attain the age of 58 years well within time by
following the procedure for compulsory retirement
as laid down in the respective Service Rules
applicable to the judicial Officers. Those who will
not be found fit and eligible by this standard should
not be given the benefit of the higher retirement age
and should be compulsorily retired at the age of 58
WPC.2021/09R & CONN.CASES 48
by following the said procedure for compulsory
retirement. The exercise should be undertaken
before the attainment of the age of 58 years even in
cases where earlier the age of superannuation was
less than 58 years. It is necessary to make it clear
that this assessment is for the purpose of finding out
the suitability of the concerned Officers for the
entitlement of the benefit of the increased age of
superannuation from 58 years to 60 years. it is in
addition to the assessment to be undertaken for
compulsory retirement and the compulsory
retirement at the earlier stage/s under the respective
Service Rules.”
A perusal of paragraphs 30 and 31 would make it clear that the
Apex Court clearly had given unambiguous and specific
directions. To the extent that the Statutory Rule did not square
with the aforesaid directions, it was clear that the Rule had died
a natural death.
28. Now, we would turn to the decision which is brought
to our notice by Shri K. Jayakumar, reported in Maharashtra
State Judges’ Association And Others v. Registrar General, High
WPC.2021/09R & CONN.CASES 49
Court of Judicature at Bombay And Another ((2009) 1 SCC
569). It is at once necessary to refer to paragraph 24 and extract
the same as follows:
“24. Shetty Commission, as a corollary to its
pay scale recommendation, recommended that
there should be only three cadres:District Judges,
Civil Judge (Senior Division) and Civil Judge
(Junior Division), and multiple categories should
be avoided. But, the recommendation made in the
report dated11-11-1999 was not binding, until it
was accepted by this Court and rules were framed
in terms of it. The said recommendation was
accepted in all India Judges’ Assn.(III) by judgment
dated 21-3-2002. By the said order, this Court
granted time up to 31-3-2003 to implement the said
recommendations. Until the recommendation was
accepted and rules were framed, the
integration/caderisation was a nebulous concept
inapplicable of being claimed or enforced as a
right.”
(Emphasis supplied)
It is also necessary to bear in mind at this juncture paragraph 38
of the All India Judges’ case (supra), which we have already
WPC.2021/09R & CONN.CASES 50
extracted. Therefore, the aforesaid view taken by the Apex
Court does appear to clearly probabilise and reinforce the case
of the petitioners that the Apex Court itself contemplated
appropriate amendments to the Statutory Rules to breathe life
into certain recommendations made by the Shetty Commission
which it had accepted. In other words, in the absence of any
specific directions indicating that the Apex Court intended that
the prescription of age limits came into force without anything
more, to be done by the legislative body, we are of the firm
view that the decision of the Apex Court did not amount to an
amendment of the Statutory Rule. No doubt, the Court
accepted the recommendation and directed the implementation
of the same. But, we are of the view that the Judgment of the
Apex Court did not amount to a declaration of law in the sense
that the Court did not intend that its acceptance of the restriction
as to age contained in the Shetty Commission Report is to be
effective without an amendment to the Rules, or that it was to
operate from the date of the Judgment or from any specified
WPC.2021/09R & CONN.CASES 51
future date. The fact that no such perception was entertained
either by the High Court or the State Government, is clear from
two circumstances:
In the first place, the Notification was issued by the High
Court in the year 2007, without prescribing the minimum or
maximum age limit as was contained in the Shetty Commission
and was accepted by the Supreme Court. The prescription was
strictly in tune with the Rules as they stood prior to the
amendment in the year 2008. If the Rules had stood amended,
by virtue of the decision of the Apex Court in the All India
Judges’ case, certainly, such an indication would have been
reflected in the Notification. Still further, the fact of an
amendment actually being carried out to the Rules to effectuate
the decision of the Apex Court and bringing it into force
prospectively only, indicates that the contemplation of both the
High Court and the State Government was that an amendment
was inevitable. We cannot also overlook the argument of the
learned counsel for the petitioners that if the Judgment of the
WPC.2021/09R & CONN.CASES 52
Apex Court must be understood as having amended the Rules,
every selection made subsequent to it would have to satisfy
every aspect which was recommended by the Shetty
Commission and which was accepted by the Apex Court.
29. Finding on the Contentions of Shri P.C.
Sasidharan, learned counsel for the party
respondents:
We are not impressed by the contention of Shri P.C.
Sasidharan on the basis of the decision of the learned Single
Judge in Ajith v. State of Kerala (2007 (2) KLT 1044). Therein,
the learned Single Judge held, inter alia, as follows:
“39. By the directions in All India Judges’
Association 2002, the State Governments and the
High Courts stood directed to amend their Rules.
The constitutional support for those directions
emanate, particularly, out of Arts. 32 and 141 of
the Constitution. Along with that, those directions
get the plenary power of the Apex Court, supported
by the law laid in All India Judges’ Association
1993 regarding the scope and authority of the Apex
Court to issue directions commanding the making
WPC.2021/09R & CONN.CASES 53
of the Rules as dictated by the Apex Court, in so far
as it relates to the field of judiciary. Therefore,
notwithstanding the procedure provided for in Art.
234, the State Government and the High Courts
were obliged by the directions of the Apex Court to
have the Rules relating to judicial services of the
respective “States modified in accordance with the
directions contained in paragraph 32 of All India
judges’ Association 2002, as noticed above. Hence,
any opinion rendered by the High Court under Art.
234 and any aid and advice, on the subject, to the
Governor in terms of Art. 163 of the Constitution,
would be of no avail, unless such opinions are in
conformity with the directions of the Apex Court as
noticed above. Therefore, notwithstanding the
question whether there was a complete consultation
following the mandate of Art. 234, the State
Government and the High Court were obliged to
amend the Service Rules as noticed above, in terms
of the directions in paragraph 32 of the All India
Judges’ Association 2002.”
(Emphasis supplied)
In that case, the learned Single Judge was concerned with the
WPC.2021/09R & CONN.CASES 54
vires of a provision on the score that there was no consultation
in its enactment with the High Court. It is in the context of the
decision of the Apex Court that it was found that though there
was no consultation, the Rule need not be overturned, as it
would be a futile exercise. This was for the reason that even if
consulted, it was inconceivable as to how the High Court could
have offered anything different or useful in the light of the
decision of the Apex Court. In other words, even if there was
consultation, it would have been a futile exercise. Thus, on the
one hand, it was found that there was no consultation, but it is,
on the other hand, found that any consultation would be of no
use. It was in such circumstances that the learned Single Judge
took the view that the decision of the Apex Court removed the
shadow over the validity of an otherwise invalid Rule. We do
not see how the said Judgment can apply in the facts of the
present cases.
30. As far as the contention based on the amendment
being relevant to vacancies which arose after the amendment is
WPC.2021/09R & CONN.CASES 55
concerned, it is to be noted that as is clear from the Notification
in question issued in 2007, there were six vacancies prior to the
amendment. Learned counsel for the petitioners also would
contend that their claim is in respect of the six vacancies. As
regards vacancies which have arisen after the amendment is
concerned, it would appear to be beyond the pale of the
controversy raised in these cases.
31. Finding on the Contentions of Shri Elvin Peter
P.J., learned counsel for the party respondents:The argument of Shri Elvin Peter, learned counsel
appearing on behalf of the party respondents based on the
decision in State of Bihar And Another v. Bal Mukund Sah And
Others ((2000) 4 SCC 640), at first blush sounds attractive. But,
on a deeper scrutiny, we are of the view that the learned counsel
may not be justified in canvassing for the wide proposition that
the High Court and the Government are totally free from the
trammels of legislative power. As already noted, the question
which arose for consideration was the validity of the law made
by the Legislature of the State of Bihar, providing for
WPC.2021/09R & CONN.CASES 56
reservation for direct recruitment. As we have already noted,
the Apex Court took the view that the general sweep of Article
309 has to be read subject to the complete code regarding
appointment of the District Judges and Judges in the
Subordinate Judiciary. A candidate unless he was recommended
by the High Court under Article 233, could not be validly
appointed as a District Judge. In this context, we must refer to
paragraphs 26, 29, 30, 37 and 45 which read as follows:
“26. So far as recruitment to the District and
Subordinate Judiciary is concerned, we have
therefore, to turn to the twin articles found in
Chapter VI of Part VI dealing with “subordinate
courts”. The relevant two articles read as under:
“233. Appointment of District
Judges.- (1) Appointment of persons to be,
and the posting and promotion of, District
Judges in any State shall be made by the
Governor of the State in consultation with
the High Court exercising jurisdiction in
relation to such State.(2) A person not already in the service
of the Union or of the State shall only be
eligible to be appointed a District Judge if
he has been for not less than seven years anWPC.2021/09R & CONN.CASES 57
advocate or a pleader and is recommended
by the High Court for appointment.* * *
234. Recruitment of persons other
than District Judges to the Judicial
Service.- 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.”Article 233 dealing with appointment of District
Judges, on its own express terminology projects a
complete scheme regarding the appointment of
persons to the District Judiciary as District judges.
In the present appeals, we are concerned with direct
recruitment to the cadre of District Judges and hence
sub-article (2) of Article 233 becomes relevant.
Apart from laying down the eligibility criterion for
candidates to be appointed from the Bar as direct
District judges the said provision is further hedged
by the condition that only those recommended by the
High Court for such appointment could be appointed
by the Governor of the State. Similarly, for
WPC.2021/09R & CONN.CASES 58
recruitment of judicial Officers other than District
Judges to the Judicial Service at lower level, a
complete scheme is provided by Article 234 wherein
the Governor of the State can made such
appointments in accordance with the rules framed by
him after consulting with the State Public Service
Commission and with the High Court exercising
jurisdiction in relation to such State. So far as the
Public Service Commission is concerned, as seen
from Article 320, the procedure for recruitment to the
advertised posts to be followed by it is earmarked
therein. But, the role of the Public Service
Commission springs into action after the posts in a
cadre are required to be filled in by direct
recruitment and for that purpose due intimation is
given to the Commission by the State authorities.
They have obviously to act in consultation with the
High Court so far as recruitment to posts in the
Subordinate Judiciary is concerned. Of course, it
will be for the High Court to decide how many
vacancies in the cadre of District Judges and
Subordinate Judges are required to be filled in by
direct recruitment so far as the District Judiciary is
concerned and necessarily only by direct recruitment
WPC.2021/09R & CONN.CASES 59
so far as the Subordinate Judiciary is concerned.
This prime role of the High Court becomes clearly
discernible from article 235 which deals with the
control of the High Court over the Subordinate
Judiciary and also of subordinate courts. The said
article provides as under:
“235: Control over subordinate
courts – The Control over District Courts
and courts subordinate thereto including
the posting and promotion of, and the grant
of leave to, persons belonging to the
Judicial Service of a State and holding any
post inferior to the post of District Judge
shall be vested in the High Court, but
nothing in this article shall be construed as
taking away from any such person any right
of appeal which he may have under the law
regulating the conditions of his service or
as authorising the High Court to deal with
him otherwise than in accordance with the
conditions of his service prescribed under
such law.”
It is in the light of the aforesaid relevant scheme of
WPC.2021/09R & CONN.CASES 60
the Constitution that we now proceed to tackle the
main controversy posed for our consideration.
29. The first part of Article 235 itself lays down
that it is for the High Court to control the District
Courts and courts subordinate thereto and in
exercise of that control vesting in the High Court,
regulation of posting and promotions and granting of
leave to persons belonging to the Judicial Services
has to be done by the High court. It is, of course,
true that in the second part of Article 235 judicial
Officers already appointed to the service have their
statutory right of appeal and the right to be dealt
with regarding other service conditions as laid down
by any other law for the time being in force, expressly
protected. But, these provisions of the second part
only enable the Governor under Article 309, in the
absence of any statutory enactment made by the
competent Legislature for regulating the conditions
of service of judicial Officers who are already
recruited and have entered and become part and
parcel of the State service, to promulgate appropriate
rules on the subject. But, so far as the entry points
are concerned, namely recruitment and appointment
to the posts of Presiding Officers of the courts
WPC.2021/09R & CONN.CASES 61
subordinate to the High Courts, only Articles 233
and 234 would govern the field. Article 234 lays
down the procedure and the method of recruiting
judicial Officers at grass-root level being
Subordinate Judges and Munsiffs as laid down by the
1955 Rules. These Rules are also framed by the
Governor of Bihar in exercise of his powers under
Article 234 obviously after the consultation of the
High Court and the Public Service Commission.
Rules regarding the procedure of selection to be
followed by the State Public Service Commission as
found in Rules 4 to 17 deal with the method to be
adopted by the Public Service Commission while
selecting candidates who offer their candidature for
the posts advertised to be filled in. These Rules
obviously require consultation with the Commission
on the procedural aspect of selection process. But,
so far as the High Court is concerned, its
consultation becomes pivotal and relevant by the
thrust of Article 233 itself as it is the High Court
which has to control the candidates, who ultimately
on getting selected, have to act as Judges at the
lowest level of the Judiciary and whose posting,
promotion and grant of leave and other judicial
WPC.2021/09R & CONN.CASES 62
control would vest only in the High court, as per
Article 235 first part, once they enter the Judicial
Service at grass-root level. Thus, consultation of the
Governor with the High Court under Article 234 is
entirely of a different type as compared to his
consultation with the Public Service Commission
about the procedural aspect of selection. So far as
direct recruitment to the posts of District Judges is
concerned, Article 233 sub-article (2) leaves no room
for doubt that unless the candidate is recommended
by the High Court, the Governor cannot appoint him
as a District Judge. Thus, Articles 233 and 234,
amongst them, represent a well-knit and complete
scheme regulating the appointments at the apex level
of the District Judiciary, namely, District Judges on
the one hand and Subordinate Judges at the grass-
root level of the Judiciary subordinate to the Distrct
Court. Thus, the Subordinate Judiciary represents a
pyramidical structure. At the base level, i.e. grass-
root level are the Munsiffs and Magistrates whose
recruitment is governed by Article 234. That is the
first level of the Judiciary. The second level
represents already recruited judicial Officers at
grass-root level, whose working is controlled by the
WPC.2021/09R & CONN.CASES 63
High Court under Article 235 first part. At the top of
this pyramid are the posts of District Judges. Their
recruitment to these posts is governed by Article 233.
It is the third and the apex level of the Subordinate
Judiciary.
30. It has also to be kept in view that neither
Article 233 nor Article 234 contains any provision of
being subject to any enactment by the appropriate
Legislature as we find in Articles 98, 146, 148, 187,
229(2) and 324(5). These latter articles contain
provisions regarding the rule-making power of the
authorities concerned subject to the provisions of the
law made by Parliament or the Legislature. Such a
provisions is conspicuously absent in Articles 233
and 234 of the Constitution of India. Therefore, it is
not possible to agree with the contention of learned
counsel for the appellant State that these articles only
deal with the rule-making power of the Governor, but
do not touch the legislative power of the competent
Legislature. It has to be kept in view that once the
Constitution provides a complete code for regulating
recruitment and appointment to the District Judiciary
and to the Subordinate Judiciary, it gets insulated
from the interference of any other outside agency.
WPC.2021/09R & CONN.CASES 64
We have to keep in view the scheme of the
Constitution and its basic frame work that the
Executive has to be separated from the Judiciary.
Hence, the general sweep of Article 309 has to be
read subject to this complete code regarding
appointment of District Judges and Judges in the
Subordinate Judiciary.
36. It becomes, therefore, obvious that no
recruitment to the post of a District Judge can be
made by the Governor without recommendation
from the High Court. Similarly, appointment4s to
the Subordinate Judiciary at grass-root level cannot
be made by the Governor save and except according
to the rules framed by him in consultation with the
High Court and the Public Service Commission.
Any statutory provision bypassing consultation with
the High Court and laying down a statutory fiat as is
tried to be done by enactment of Section 4 by the
Bihar Legislature has got to be held to be in direct
conflict with the complete code regarding
recruitment and appointment to the posts of the
District Judiciary and the Subordinate Judiciary as
permitted and envisaged by Articles 233 and 234 of
the Constitution. The impugned Section 4,
WPC.2021/09R & CONN.CASES 65
therefore, cannot operate in the clearly earmarked
and forbidden field for the State Legislature so far
as the topic of recruitment to the District Judiciary
and the Subordinate Judiciary is concerned. That
field is carved out and taken out from the operation
of the general sweep of Article 309.
37. It is, of course, true as laid down by a catena of
decisions of this Court, that topics of constitution of
courts and services, laying down of rules regarding
the conditions of service other than those expressly
placed within the jurisdiction of the High Court by
Articles 233 and 235, providing for age of
superannuation or other recruitment benefits to
judicial Officers, fixing pay scales, diversification
of cadres may form part of the general recruitment
and conditions of services falling within the spheres
of the Governor’s rule-making power under Article
309 read with the second part of Article 233 or may
even be made the subject-matter of legislation by
the competent Legislature in exercise of its
legislative powers under Entry 41 of List II or for
that matter Entry 11-A of List III of the Seventh
Schedule. But, save and except this permitted field,
WPC.2021/09R & CONN.CASES 66
the State Legislature cannot enter upon the
forbidden field expressly reserved for consultation
with the High Court by the thrust of Articles 233
and 234 so far as the initial entry point of
recruitment to the Judicial Service at grass-root
level or at the apex level of the District Judiciary is
concerned. A three-Judge Bench of this Court in
the case of A. Panduranga Rao v. State of A.P.
speaking through Untwalia, J., considered the
question whether anyone can be appointed by the
Governor as a District Judge without being
recommended by the High Court. Relying on the
Constitution Bench decision of this Court in
Chandra Mohan case in para 7 of the Report,
observations were made as under: (SCC p.712):
“There are two sources of
recruitment, namely, (i) service of the
Union or the State, and (ii) Members of
the Bar. The said Judges from the first
source are appointed in consultation
with the High Court and those from the
second source are appointed on the
recommendation of the High Court.”And thereafter the following pertinent observations
were made in para 8, which read as under: (SCC
p.712):
“8. A candidate for direct
WPC.2021/09R & CONN.CASES 67
recruitment from the Bar does not
become eligible for appointment without
the recommendation of the High Court.He becomes eligible only on such
recommendation under clause (2) of
Article 233. The High Court in the
Judgment under appeal felt some
difficulty in appreciating the meaning of
the word “recommended”. But, the
literal meaning given in the Concise
Oxford Dictionary is quite simple and
apposite. It means “suggest as fit for
employment”. In case of appointment
from the Bar, it is not open to the
Government to choose a candidate for
appointment until and unless his name
is recommended by the High Court.”It is, therefore, obvious that the State
Legislature has no role to play while controlling
appointments of District Judges under Article 233
or appointment of Civil Judges to the Subordinate
Judiciary at grass-root level under the District
Judiciary and it is only the Governor who is
entrusted with the said task which he has to
undertake after consultation with the High Court
and by framing appropriate rules for recruitment
to the Judiciary at grass-root level as enjoined by
Article 234 and can only act on recommendation
by the High Court for direct recruitment from the
Bar for being appointed as District Judges as laid
WPC.2021/09R & CONN.CASES 68
down by Article 233 sub-article (2). There is no
third method or third authority which can
intervene in the process or can have its say,
whether legislative authority or executive
authority, as the case may be, independently of the
complete scheme of such recruitment as envisaged
by the aforesaid two articles. It is, therefore,
difficult to appreciate the contention of learned
Senior Counsel for the appellant State that
paramount legislative power of the State
Legislature stands untouched by the scheme of the
aforesaid two articles of the Constitution.”
It is also necessary to refer to the following passage in paragraph
(45):
“That shows the clear intention of the
Constitution-makers that so far as question of
recruitment and appointment to available
vacancies in the cadre of District Judges and
Judges of the Subordinate Judiciary is concerned,
neither the Legislature, nor the Governor dehors
any consultation with the High Court, can have
any independent say.”
WPC.2021/09R & CONN.CASES 69
32. A perusal of paragraphs 36 and 37 would show that
there is legislative power to prescribe the relevant conditions of
service as sanctioned by law. Undoubtedly, there must be
consultation with the High Court in this regard. If a Rule is
made in consultation with the High Court, we feel that it will be
straining the constitutional provisions, to hold that there is no
rule making power, either or that the High Court can be free
from its trammels. We have already held that the Judgment of
the Apex Court in the All India Judges’ case does not amount to
a declaration of law in the sense that without an amendment of
the existing Rules, the relevant restrictions in this regard were
born of their own. In fact, neither the High Court, nor the
Government of Kerala have a case that the amendment
prescribing the age is contrary to the constitutional scheme or is
impermissible. It was the High Court which made the move in
2006 to amend the Rules. As far as the argument of Shri Elvin
Peter based on the decision of the Apex Court in Delhi
Development Authority v. Skipper Construction Co. (P). Ltd.
WPC.2021/09R & CONN.CASES 70
And Another ((1996) 4 SCC 622) is concerned, we do not think
that the dicta in the said case have any application to the facts of
the present cases. That was a case where the Apex Court had to
deal with the conduct of a party before it, namely a builder who
did not abide by certain orders. The relevant paragraphs are as
follows:
“18. The above principle has been applied
even in the case of violation of orders of injunction
issued by civil courts. In Clarke v. Chadburn Sir.
Robert Megarry V-C observed:
“I need not cite authority for the
proposition that it is of high importance that
orders of the court should be obeyed. Wilful
disobedience to an order of the court is
punishable as a contempt of court, and I feel
no doubt that such disobedience may
properly be described as being illegal. If by
such disobedience, the persons enjoined
claim that they have validly effected some
charge in the rights and liabilities of others, I
cannot see why it should be said that
although they are liable to penalties for
contempt of court for doing what they did,
nevertheless those acts were validly done. Of
course, if an act is done, it is not undone
merely by pointing out that it was done in
breach of the law. If a meeting is held in
breach of an injunction, it cannot be said thatWPC.2021/09R & CONN.CASES 71
the meeting has not been held. But, the legal
consequences of what has been done in
breach of the law may plainly be very much
affected by the illegality. It seems to me on
principle that those who defy a prohibition
ought not to be able to claim that the fruits of
their defiance are good, and not tainted by
the illegality that produced them.”19. To the same effect are the decisions of the
Madras and Calcutta High Courts in Century Flour
Mills Ltd. v. s. suppiah and sujit Pal v. Prabir
Kumar Sun. In Century Flour Mills Ltd. it was held
by a Full Bench of the Madras High Court that
where an act is done in violation of an order of stay
or injunction, it is the duty of the court, as a policy,
to set the wrong right and not allow the
perpetuation of the wrongdoing. The inherent
power of the court, it was held, is not only available
in such a case, but it is bound to exercise it to undo
the wrong in the interest of justice. That was a case
where a meeting was held contrary to an order of
injunction. The Court refused to recognise that the
holding of the meeting is a legal one. It put back
the parties in the same position as they stood
immediately prior to the service of the interim
order.”
WPC.2021/09R & CONN.CASES 72
We do not see how it can be of any assistance to the respondents
in the facts of these cases. Learned counsel for the party
respondent then relied on paragraph 40 of the Judgment in the
All India Judges’ case. It reads as follows:
“40. Any clarification that may be required
in respect of any matter arising out of this
decision will be sought only from this Court. The
proceedings, if any, for implementation of the
directions given in this Judgment shall be filed
only in this Court and no other court shall
entertain them.”
He would contend that in the light of the said decision, the Writ
Petitions are to be dismissed. We see no merit in the said
contention. We cannot hold that this case is one which was in
the contemplation of the Court within the meaning of paragraph
40. It cannot be said that what the petitioners are seeking is a
clarification in respect of a matter arising out of the decision.
33. Finding on the contentions of Shri T.
Sethumadhavan based on Rule 10(c) of
WPC.2021/09R & CONN.CASES 73
the KS & SSR in W.P.(C).No.3543/09:
The date of birth of the petitioner is 28.11.1957. He is a
member of Other Backward Community. As per the
Notification and in terms of the Rule then in force, the candidate
should not have completed fortyseven years of age, as on 1st
January, 2007. The petitioner had not completed fifty years of
age as on 1.1.2007. Rule 10(c) of the KS & SSR in so far as it
relevant is extracted hereunder:
“10(c): The upper age limit prescribed in
the Special Rules shall, unless otherwise stated, be
raised by 5 years in the case of a candidate
belonging to any of the Scheduled Castes or adult
members of such castes and their children when
such adult members are converted to other regions
or Scheduled Tribes and by 3 years in the case of
a candidate belong to any of the Other Backward
Classes:”
In terms of this Rule, as the petitioner was entitled to relaxation
of upper age limit by three years, the petitioner was considered
eligible. However, the argument based on Rule 10(c) to the
WPC.2021/09R & CONN.CASES 74
effect that even after the amendment, he would be eligible is
misconceived. After the amendment, a person who is above
fortyfive years of age as on 01.01.2007, will not be considered
eligible. However, under the Rule, the petitioner being a
member of OBC, is entitled to relaxation of three years.
Applying the said Rule, it can be seen that the petitioner will not
be eligible. This is for the reason that as per the amended Rule,
the petitioner cannot be considered eligible for the reason that
he had completed fortynine years of age as on 28.11.2006 and
had, therefore, completed fortynine years as on 1.1.2007. The
age relaxation being only for three years and the maximum age
being fortyfive years, the petitioner being fortynine years, it is
clear that the petitioner cannot claim the benefit of Rule 10(c)
and hence his claim is rejected.
34. Finding on the contentions of the petitioner
in W.P.(C).No.14027/09 based on the petitioner
having completed thirtyfive years of age as on
the last date for receipt of applications:
We see no merit in the aforesaid contention of the
WPC.2021/09R & CONN.CASES 75
petitioner. It may be true that the petitioner has become
thirtyfive years of age before the last date for receipt of
application. The argument is based on the Clause in the
Notification which provides that eligibility shall be determined
with reference to the last date fixed for receipt of the
applications, as also the decisions of the Apex Court, for the
proposition that what would be relevant is the last day for
receipt of applications. The Apex Court in Rekha Chaturvedi
(Smt). v. University of Rajasthan And Others ((1993) Supp.(3)
SCC 168), after referring to the perils of uncertainty of date to
determine possession of qualification, held as follows:
“Hence, in the absence of a fixed date
indicated in the advertisement/notification inviting
applications with reference to which the requisite
qualifications should be judged, the only certain
date for the scrutiny of the qualifications will be
the last date for making the applications.”
This principle is approved in Bhupinderpal Singh And Others v.
State of Punjab And Others ((2000) 5 SCC 262) and Ashok
WPC.2021/09R & CONN.CASES 76
Kumar Sonkar v. Union of India And Others ((2007) 4 SCC 54).
Per contra, Shri K.R.B. Kaimal, learned senior counsel
appearing for the High Court relies on the actual provision
contained in the Notification in this regard. Note 3 to clause (2)
of the Notification reads as follows:
“Save as otherwise provided, eligibility shall
be determined with reference to the last date fixed
for the receipt of the applications.”
Clause (3)(b) provides that the candidate should not have
completed fortyseven years of age as on the first day of January,
2007. Therefore, learned senior counsel appearing for the High
Court would contend that even the Notification clearly
contemplates that as regards the question of age, it has to be
determined with reference to the first day of January, 2007. He
submits that this exception made is in conformity with the
Kerala Public Services (Date for Determination of Age for
Eligibility for Appointment) Rules, 1977. Rule 2 reads as
follows:
WPC.2021/09R & CONN.CASES 77
“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 Services, 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.”
Clearly the Rule contemplates eligibility condition as to age
being determined with reference to the first day of the year in
which applications are called for, which in this case is
01.01.2007. Admittedly, as on the said date, the petitioner has
not completed thirtyfive years of age. The determination of
WPC.2021/09R & CONN.CASES 78
eligibility with reference to the last day fixed for receipt of
applications assumes relevance only if no other date is indicated
by the Rules and the Notification. The general rule aforesaid
operates and it is the first day of the year in which applications
are invited which is relevant. Thus, it is not open to the
petitioner to contend that the amendment applies, but the
petitioner has completed thirtyfive years as provided in law and
as per the Notification.
W.P.(C).No.2302/09:
35. Whether there is res judicata or constructive res
judicata by virtue of the Judgment in 2008(4) KLT
916 ?
The contention of res judicata or constructive res judicata
does not appeal to us. There is no written plea as such. The Writ
Petition culminating in the Judgment of the Division Bench
arose out of the refusal by the High Court to call the petitioner
for interview on the ground that the petitioner had been selected
as a Munsiff. Therefore, what fell for decision was whether the
refusal to call the petitioner for interview could be justified on
WPC.2021/09R & CONN.CASES 79
the said ground. No occasion arose for the Court to consider
whether the petitioner could be called for interview on the basis
of the amendment in question. In fact, the High Court has
apparently called all the other petitioners for the interview. We
also notice that the Judgment of the Division Bench itself has
not become final especially when S.L.P. is pending
consideration before the Apex Court. Further more, actually
there was no specific pleading as such about the plea based on
the amendment being barred by res judicata or constructive res
judicata.
36. What is the effect of the amendment on the
rights of the petitioners ?
This is the most crucial question which arises. We will
advert to the decisions referred to by Shri K. Jaju Babu, the
arguments based on which are adopted by the counsel
appearing for the other petitioners also. In A.A. Calton v.
Director of Education and Another ((1983) 3 SCC 33), the
appellant called in question the appointment of the second
respondent as the Principal of an Intermediate College, a
WPC.2021/09R & CONN.CASES 80
minority Institution. The selection commenced in the year 1973.
The Selection Committee recommended the name of the
appellant also. The Regional Deputy Director did not approve
the selection. There was a remit to the Selection Committee.
Thereafter, the second respondent was assigned a higher rank
than the appellant. There was yet another remit and the Selection
Committee made a third recommendation. The appellant
questioned the selection on the third occasion and the High
Court quashed the same and the Director of Education was
directed to make appointment. The second respondent was
appointed. This was challenged. It was this Writ Petition which
was dismissed by the High Court. There was an amendment
which came into force on 18.8.1975, taking away the power of
the Director to make an appointment. It is in this context that
the Court held as follows:
“At every stage in that process certain rights
are created in favour of one or the other of the
candidates. Section 16-F of the Act cannot,
therefore, be construed as merely a procedural
WPC.2021/09R & CONN.CASES 81
provision. 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. In the instant case admittedly,
the proceedings for the selection had commenced
in the year 1973 and after the Deputy Director
had disapproved the recommendations made by
the Selection Committee twice the Director
acquired the jurisdiction to make an appointment
from amongst the qualified candidates who had
applied for the vacancy in question. At the
instance of the appellant himself in the earlier writ
petition filed by him, the High Court had directed
the Director to exercise that power. Although the
Director in the present case exercised that power
subsequent to August 18, 1975 on which date the
amendment came into force, it cannot be said that
the selection made by him was illegal since the
amending law had no retrospective effect. It did
WPC.2021/09R & CONN.CASES 82
not have any effect on the proceedings which had
commenced prior to August 18, 1975.”
In P. Mahendran And Others v. State of Karnataka And Others
((1990) 1 SCC 411), the Karnataka General Service (Motor
Vehicles Branch) (Recruitment) Rules, 1962 prescribed
Diploma in Automobile Engineering or Mechanical Engineering
as the minimum qualification for appointment of Motor Vehicle
Inspectors. In 1983, the Commission invited applications from
holders of Diploma in Automobile Engineering or Mechanical
Engineering. Interview letters were issued and the Commission
commenced the interview. The High Court of Karnataka issued
orders of stay and the interviews could be completed only by
June, 1987 and the result was published in July, 1987 in the
Gazette. However, the Recruitment Rules were amended in
May, 1987 omitting Diploma in Mechanical Engineering from
the prescribed qualifications. The Administrative Tribunal
quashed the select list as well as the relevant advertisement on
the basis of the amendment. The Apex Court, inter alia, after
referring to the decision in Calton’s case (supra) also, held as
WPC.2021/09R & CONN.CASES 83
follows:
“In view of these facts the sole question for
consideration is as to whether the amendment
made in the Rules on May 14, 1987 rendered the
selection illegal. Admittedly, the amending Rules
do not contain any provision enforcing the
amended Rules with retrospective effect. In the
absence of any express provision contained in the
amending Rules, it must be held to be prospective
in nature. The Rules which are prospective in
nature cannot take away or impair the right of
candidates holding Diploma in Mechanical
Engineering as on the date of making appointment
as well as on the date of scrutiny by the
Commission, they were qualified for selection and
appointment. In fact, the entire selection in the
normal course would have been finalised much
before the amendment of Rules, but for the interim
orders of the High Court. If there had been no
interim orders, the selected candidates would have
been appointed much before the amendment of
Rules. Since the process of selection had
commenced and it could not be completed on
account of the interim orders of the High Court,
WPC.2021/09R & CONN.CASES 84
the appellants’ right to selection and appointment
could not be defeated by subsequent amendment of
Rules.
It is well settled rule of construction that
every statute or statutory rule is prospective unless
it is expressly or by necessary implication made to
have retrospective effect. Unless there are words
in the statute or in the Rules showing the intention
to affect existing rights the rule must be held to be
prospective. If a rule is expressed in language
which is fairly capable of either interpretation, it
ought to be construed as prospective only. In the
absence of any express provision or necessary
intendment the rule cannot be given retrospective
effect except in matter of procedure. The
amending Rules of 1987 do not contain any
express provision giving the amendment
retrospective effect nor there is anything therein
showing the necessary intendment for enforcing
the rule with retrospective effect. Since the
amending Rules were not retrospective, it could
not adversely affect the right of those candidates
who were qualified for selection and appointment
on the date they applied for the post, moreover as
WPC.2021/09R & CONN.CASES 85
the process of selection had already commenced
when the amending Rules came into force, the
amended Rules could not affect the existing rights
of those candidates who were being considered for
selection as they possessed the requisite
qualifications prescribed by the Rules before its
amendment moreover construction of amending
Rules should be made in a reasonable manner to
avoid unnecessary hardship to those who have no
control over the subject matter.”
(Emphasis supplied)
In N.T. Devin Katti And Others v. Karnataka Public Service
Commission And Others ((1990) 3 SCC 157), the Karnataka
Public Service Commission issued Notification on 23.5.1975,
published on 29.5.1975, inviting applications from inservice
candidates for recruitment to fifty posts of Tahsildars. The
Notification specified the details of the posts reserved for
various categories. The appellants were applicants. The written
examination and the interview being over, a final list of
successful candidates was published. The Commission also
notified an additional list of candidates in accordance with the
WPC.2021/09R & CONN.CASES 86
1975 Rules. The Commission had followed the directions in
the Government Order dated September 6, 1969 in regard to the
reservation to various categories. The Government, however,
refused to approve the list on the basis that reservation should
have been made in accordance with Order dated July 9, 1975.
The appellants before the Apex Court did not figure in the
revised list of candidates prepared pursuant to the direction of
the Government. The Apex Court found that the Government
interpretation was erroneous, as the conditions precedent
contemplated under paragraph 11 of the order were fulfilled and,
therefore, the selections which were pending were saved.
Thereafter, it was proceeded to hold as follows:
“11. There is yet another aspect of the
question. Where advertisement is issued inviting
applications for direct recruitment to a category of
posts, and the advertisement expressly states that
selection shall be made in accordance with the
existing rules or government orders, and if it
further indicates the extent of reservations in
favour of various categories, the selection of
WPC.2021/09R & CONN.CASES 87
candidates in such a case must be made in
accordance with the then existing rules and
government orders. Candidates who apply, and
undergo written or viva voce test acquire vested
right for being considered for selection in
accordance with the terms and conditions
contained in the advertisement, unless the
advertisement itself indicates a contrary intention.
Generally, a candidate has right to be considered
in accordance with the terms and conditions set
out in the advertisement as his right crystallises on
the date of publication of advertisement, however,
he has no absolute right in the matter. If the
recruitment Rules are amended retrospectively
during the pendency of selection, in that event
selection must be held in accordance with the
amended Rules. Whether the Rules have
retrospective effect or not, primarily depends upon
the language of the Rules and its construction to
ascertain the legislative intent. The legislative
intent is ascertained either by express provision or
by necessary implication; if the amended Rules
are not retrospective in nature, the selection must
be regulated in accordance with the rules and
WPC.2021/09R & CONN.CASES 88
orders which were in force on the date of
advertisement. Determination of this question
largely depends on the facts of each case having
regard to the terms and conditions set out in the
advertisement and the relevant rules and orders.
Lest there be any confusion, we would like to make
it clear that a candidate on making application for
a post pursuant to an advertisement does not
acquire any vested right of selection, but if he is
eligible and is otherwise qualified in accordance
with the relevant rules and the terms contained in
the advertisement, he does acquire a vested right
of being considered for selection in accordance
with the rules as they existed on the date of
advertisement. He cannot be deprived of that
limited right on the amendment of rules during the
pendency of selection unless the amended rules
are retrospective in nature.”
(Emphasis supplied)
In Gopal Krushna Rath v. M.A.A.Baig (Dead) by Lrs. And
Others ((1999) 1 SCC 544), applications were invited for
appointment to the post of Professor on 01.6.1991. On the basis
of the assessment chart, candidates applied and after conducting
WPC.2021/09R & CONN.CASES 89
interviews, the Committee prepared select list. The interview
had taken place on 11.5.1992. The Writ Petition was filed
challenging the appointment of the appellant on the ground that
guidelines prescribed by the UGC were changed with effect
from 19.9.1991 and as the appellant did not possess the newly
prescribed qualification of ten years experience in teaching in
the Post Graduate level, his appointment was bad. It is in this
context that the court held, inter alia, as follows:
“5. It is an accepted position that on the
date of the advertisement and on the last date
prescribed for the receipt of applications, the
qualification prescribed by the University Grants
Commission was 10 years’ experience of teaching
and/or research. Therefore, the advertisement
also prescribed the same qualification. The
appellant possessed that qualification. Even on
the date when the Syndicate prepared an
assessment chart, the position was the same. It
was only thereafter, on 19.9.1991, that the new
qualification regarding ten years’ teaching
experience at the postgraduate level came into
effect.”
WPC.2021/09R & CONN.CASES 90
It is also held that the appellant possessed the necessary
qualifications as advertised on the last date for receipt of
applications and accordingly, the Appeal filed by the appellant
was allowed. In Maharashtra State Road Transport Corpn. and
Others v. Rajendra Bhimrao Mandve And Others ((2001) 10
SCC 51), advertisement was issued on 20.9.1995 for the post of
Drivers in the appellant Corporation. According to the writ
petitioners, the selection was bad for the reason that the
Selection Committee had allotted twentyfive per cent marks for
interview on the basis of Circular dated 24.6.1996. According
to them, they were governed by Circular dated 4.4.1995 which
assigned twelve and a half marks for the oral test as also
Circular dated 23.1.1995. The High Court allowed the Writ
Petition and set aside the selection and declared that the claim of
the ten petitioners are also to be considered. The Apex Court
found that the High Court was not correct in holding that
Circular dated 24.6.1996 is illegal or arbitrary. Thereafter, it is
proceeded to hold as follows:
WPC.2021/09R & CONN.CASES 91
“Instead, it would have been well open to the
High Court to have declared that the criteria
sought to be fixed by the Circular dated 24.6.1996
as the sole determinative of the merit or grade of a
candidate for selection long after the last date
fixed for receipt of application and in the middle of
the course of selection process (since in this case,
the driving test was stated to have been conducted
on 27.11.1995) cannot be applied to the selections
under consideration and challenged before the
High Court. It has been repeatedly held by this
Court that the rules of the game, meaning thereby,
that the criteria for selection cannot be altered by
the authorities concerned in the middle or after the
process of selection has commenced. Therefore,
the decision of the High Court, to the extent it
pronounced upon the invalidity of the circular
orders dated 24.6.1996, does not merit acceptance
in our hand and the same are set aside.”
In Secretary, A.P. Public Service Commission v. B. Swapna
And Others ((2005) 4 SCC 154), the appellant Commission
advertised fifteen posts in all of Assistant Public Relations
WPC.2021/09R & CONN.CASES 92
Officer. There was an amendment on 30.7.1997 of the Rules. It
read as follows:
“The list of the candidates approved/selected
by the Commission shall be equal to the number of
vacancies only including those for reserve
communities/categories notified by the unit
officers/Government. The fallout vacancies if any
due to relinquishment and non-joining, etc., of
selected candidates shall be notified in the next
recruitment.”
The Apex Court in Appeal against the order of the tribunal as
confirmed by the High Court, inter alia, held as follows:
“14. The High Court has committed an error
in holding that the amended rule was operative.
As has been fairly conceded by learned counsel
for respondent 1 applicant, it was the unamended
rule which was applicable. Once a process of
selection starts, the prescribed selection criteria
cannot be changed. The logic behind the same is
based on fair play. A person who did not apply
because a certain criterion e.g. minimum
percentage of marks can make a legitimate
grievance, in case the same is lowered, that he
WPC.2021/09R & CONN.CASES 93
could have applied because he possessed the said
percentage. Rules regarding qualification for
appointment if amended during continuance of the
process of selection do not affect the same. That is
because every statute or statutory rule is
prospective unless it is expressly or by necessary
implication made to have retrospective effect.
Unless there are words in the statute or in the
rules showing the intention to affect existing rights
the rule must be held to be prospective. If the rule
is expressed in a language which is fairly capable
of either interpretation, it ought to be considered
as prospective only…………………The selection from
the ranking list from amongst the posts advertised
was limited to the cases where the selected
candidates had relinquished the selection or who
had not joined the duties within the given time and
also new requisitions sent by the appointing
authority. The Commission did not think it
appropriate to make appointment from the new
requisitions. The fact that the Commission had
directed that fresh advertisements were to be made
is clearly indicative of the fact that the
Commission did not want the new requisitions to
WPC.2021/09R & CONN.CASES 94
be filled up by appointing from the ranking list in
force. The Tribunal and the High Court were
therefore not justified in holding by referring to
the amended rule that the fallout vacancies were
to be filled up from the ranking list. The fallout
vacancies in terms of the amended notification
were to be notified in the next recruitment. Case
of the applicant all through has been that her
claim was relatable to the 14 vacancies indented
on 14.4.1997 and in particular the open category.
It is not her case that the Commission had directed
fresh advertisement though it had not frozen the
rank list. It is not disputed that there cannot be
direction for fresh advertisement unless the rank
list is frozen. The materials placed on record
clearly show that before directing fresh
advertisement, the Commission had in fact, for
reasons recorded directed freezing.
Unfortunately, the Tribunal did not grant
adequate time to the Commission to produce
relevant records and the High Court proceeded on
erroneous premises that the amended Rules
applied. Therefore, looked at from any angle, the
High Court’s judgment affirming the Tribunal’s
WPC.2021/09R & CONN.CASES 95
judgment cannot be maintained. The same is set
aside.”
In Mohanan Pillai v. State of Kerala (2007 (2) KLT 551 (SC)),
applications were invited for twelve posts of
Watchman/Messenger/Attender and a written test was held on
18.1.2001. Only thirtysix candidates who got the highest marks
were called for the interview, appellant being one among them.
A policy decision was taken to call only those candidates who
had come within the zone of three times the number of posts.
The minimum mark thereafter was reduced to 46 marks and
eleven more persons were permitted to appear for the interview.
The appellant who was not selected, challenged the selection on
the ground that respondents 4 and 5 were called for the
interview only one day prior to the holding thereof. The stand
of the Public Sector Company was, inter alia, that it was decided
to enlarge the zone of consideration to 1:4 and accordingly call
letters were issued. The Apex Court held as follows:
“9. Why such a decision had been taken after
the publication of the result of the written
WPC.2021/09R & CONN.CASES 96
examination and after calling 36 candidates for
interview is not known. Why the Company
intended to enlarge the zone of consideration from
1:3 to 1:4 has also not been disclosed. Why the
cut-off mark was also lowered remained a mystery.
10. It may be that in a given situation, a
decision of the State may be changed, but therefor
good and sufficient reasons must be assigned. The
Company failed to do so. The decision taken in
this behalf smacks of arbitrariness. It prejudiced
the candidates like the appellant.
11. 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.”
The Court allowed the Appeal and set aside the selection of
respondents 4 and 5. The Court in the said case noted that the
allocation of marks for interview was in fact misused and drew
an inference of favouritism. Also it was noticed that the power
was exercised for an unauthorised purpose and it constituted
WPC.2021/09R & CONN.CASES 97
malice in law.
37. In K. Manjusree v. State of Andhra Pradesh And
Another ((2008) 3 SCC 512), the Andhra Pradesh State Higher
Judicial Service Rules did not prescribe any criteria for
selection. However, as per the Resolutions, twentyfive marks
were earmarked for interview. By Resolution dated 30.11.2004,
it was resolved to conduct the written examination for
seventyfive marks and oral examination for twentyfive marks.
The written test was held on 30.1.2005 and 1026 candidates
appeared for the examination. Results were declared on
24.2.2005. There was some litigation as a result of which the
interviews were delayed. Thereafter, interview was held in
March, 2006. A consolidated merit list of eightythree
candidates was prepared in the order of aggregate merit. It
contained, inter alia, marks secured in the written examination
out of 100 marks and marks secured in the interview out of
twentyfive marks and the total marks secured in the written
examination and interview out of one hundred and twentyfive.
WPC.2021/09R & CONN.CASES 98
When the matter came up before the Full Court, it did not agree
with the select list as approved by the Administrative
Committee. It authorised the Chief Justice to constitute a
Committee and the said Committee was of the view that the
candidates should be evaluated with reference to the written
examination marks of seventyfive and interview marks of
twentyfive. It scaled down the marks with reference to the total
marks in the written examination with reference to the total of
hundred. It also was of the view that there should be the same
cut off percentage for interview marks and those who failed to
secure such minimum marks in the interview should be
considered having failed. Smt. Manjusree whose name was
found in the first list contended that the prescription of minimum
marks which was not sanctioned by the Rules or the Resolution
dated 30.11.2004 and the Full Court was changing the Rules of
the game, not only after the game was started, but the game
played. The Court after referring to the case law held, inter alia,
as follows:
WPC.2021/09R & CONN.CASES 99
“33. The Resolution dated 30-11-2004 merely
adopted the procedure prescribed earlier. The
previous procedure was not to have any minimum
marks for interview. Therefore, extending the
minimum marks prescribed for written examination,
to interviews, in the selection process is
impermissible. We may clarify that prescription of
minimum marks for any interview is not illegal. We
have no doubt that the authority making rules
regulating the selection, can prescribe by rules, the
minimum marks both for written examination and
interviews, or prescribe minimum marks for written
examination but not for interview, or may not
prescribe any minimum marks for either written
examination or interview. Where the rules do not
prescribe any procedure, the Selection Committee
may also prescribe the minimum marks, as stated
above. But, if the Selection Committee wants to
prescribe minimum marks for interview, it should do
so before the commencement of selection process. If
the Selection Committee prescribed minimum marks
only for the written examination, before the
commencement of selection process, it cannot either
during the selection process or after the selection
WPC.2021/09R & CONN.CASES 100
process, add an additional requirement that the
candidates should also secure minimum marks in the
interview. What we have found to be illegal, is
changing the criteria after completion of the
selection process, when the entire selection
proceeded on the basis that there will be no
minimum marks for the interview.”
(Emphasis supplied)
In Stalin v. State of Kerala (2006 (1) KLT 493), the question
was whether the Commission was justified in refusing to advise
the petitioners on the ground that they did not possess the
qualifications in terms of the amended Special Rules after the
commencement of the selection process. The Commission had
issued Notification on 27th October, 1998. The selection process
was completed and separate District-wise rank lists were
prepared on various days between April 22nd and January, 2003.
On 12th April, 1999, the Rules were amended, prescribing a
qualification different from the qualification earlier prescribed.
The Court referred to Mahendran’s case (supra) and held that the
amendment would not have any impact on the rights accrued to
WPC.2021/09R & CONN.CASES 101
the petitioners as on the date of the Notification issued by the
Commission. It is also relevant to note that the Court also drew
support from Ext.P4 G.O. clarifying that changes in
qualifications, etc. after the issuance of a Notification by the
Commission will be given effect to in future selections only.
There was no retrospective effect, either. In Mohammed Najim
v. State of Kerala (1993 (2) KLT 721), a Division Bench of this
Court was considering selection to the post of Amins. The
Court held that the Government had the power to amend the
Rules even after the selection process have started with
retrospective effect provided it did not affect the constitutional
rights of a person. It was held as follows, inter alia,:
“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. The government’s power to make
WPC.2021/09R & CONN.CASES 102
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 right. 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. 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.” (Emphasis supplied)
It further held that the only right that is vested on the petitioners
on their making the applications was the right to be considered
for selection in accordance with the Rules as they existed on the
date of the advertisement of which they could be deprived by a
retrospective amendment. In Mohanan v. Director of
Homeopathy (2006 (3) KLT 641 (FB)), a Full Bench of the
Kerala High Court was considering the following facts, inter
alia:
WPC.2021/09R & CONN.CASES 103
Applications were invited in 1995 to the post of
Pharmacists Gr. II, the last date being 29.11.1995. Following
the written test and interview, a rank list was published on
27.6.2003. In 1999, the Government issued Special Rules
changing the qualifications with effect from 12.4.1999. The
question arose whether in view of the amendment, persons could
be appointed from persons in the list prepared on the basis of the
pre-revised qualifications. The Court referred to the case law
which we have already referred to and proceeded to hold as
follows:
“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, as 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
WPC.2021/09R & CONN.CASES 104
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 Arts. 14 and 16 of the Constitution of India.
In other words, both the rights should mutually co-
exist and in that view also, our conclusion is
perfectly in accordance with the constitutional
principles which cannot be negated to both sets of
people. 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
unamended 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.
once an amendment regarding qualifications and
method of appointment etc., in respect of a
particular post comes into force any vacancy which
WPC.2021/09R & CONN.CASES 105
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 PSC,
selection of which was initiated prior to the
amendment of the rules.”
38. We further notice that the decision in Manjusree’s
case (supra) came to be affirmed, though a contention was taken
that it was rendered without noticing certain earlier decisions.
The decision in Hemani Malhotra v. High Court of Delhi
((2008) 7 SCC 11) related to the Delhi Higher Judicial Service.
This case also related to the prescription for the minimum marks
for the viva voce by the Full Court on the basis of the matter
being placed before it by the Selection Committee. The
candidates sat for the written test. They were called for the
interview on various dates, but the interview was being deferred
and it was thereafter that the Full Court took its decision fixing
minimum qualifying marks on 13.12.2006. Thereafter, the
interview was held. The complaint taken by the petitioners was
that they have been excluded from being considered for
WPC.2021/09R & CONN.CASES 106
appointment to the post of Higher Judicial Service exclusively
on the basis of the cut off marks prescribed for the viva voce test
which was illegal being contrary to the decision of the Apex
Court in Lila Dhar v. State of Rajasthan ((1981) 4 SCC 159). It
was also contended that minimum marks could not be prescribed
after the selection process has commenced. In this context of the
facts and after referring to Manjusree’s case, the Court, inter
alia, held as follows:
“From the proposition of law laid down by
this Court in the above mentioned case, it is evident
that previous procedure was not to have any
minimum marks for viva voce. Therefore,
prescribing minimum marks for viva voce was not
permissible at all after the written test was
conducted………There is no manner of doubt that
the authority making rules regulating the selection
can prescribe by rules the minimum marks both for
written examination and viva voce, but if minimum
marks are not prescribed for viva voce before the
commencement of selection process, the authority
concerned, cannot either during the selection
process or after the selection process add an
WPC.2021/09R & CONN.CASES 107
additional requirement/qualification that the
candidate should also secure minimum marks in the
interview. Therefore, this Court is of the opinion
that prescription of minimum marks by the
respondent at viva voce test was illegal.”
(Emphasis supplied)
In Amlan Jyoti Borooah v. State of Assam and Others ((2009) 3
SCC 227), the Apex Court frowned upon the change in the order
in which written test, physical test and interview for selection as
Sub Inspector of Police was held and the Court took the view
that the deviation could not have been done from the advertised
order by holding the written test and interview first and then the
physical test. In Mohd. Sohrab Khan v. Aligargh Muslim
University And Others ((2009) 4 SCC 555), the Court held that
recruitment must be held in accordance with the qualifications
prescribed in the advertisement. In Y.V. Rangaiah And Others
v. J. Sreenivasa Rao and Others ((1983) 3 SCC 284), the Court
held as follows:
“8. The contention on behalf of the
appellants herein is that by the time the list was
WPC.2021/09R & CONN.CASES 108
prepared in May, 1977 Rule 5 of the Andhra
Pradesh Registration and Subordinate Service
Rules was amended and the list prepared was in
accordance with the rules then prevailing at the
time of preparation, and therefore, there was
nothing wrong with the preparation of the panel.
It was further contended that the petitioners in the
two representation petitions having not challenged
the validity of the amendment to Rule 5 of the
Andhra Pradesh Registration and Subordinate
Service Rules, it was not open to them to challenge
the list prepared in May, 1977 which is in
accordance with the rules prevailing at that time.
9. Having heard the counsel for the parties,
we find no force in either of the two contentions.
Under the old rules a panel had to be prepared
every year in September. Accordingly, a panel
should have been prepared in the year 1976 and
transfer or promotion to the post of Sub-Registrar
Grade II should have been made out of that panel.
In that event, the petitioners in the two
representation petitions who ranked higher than
respondents 3 to 15 would not have been deprived
of their right of being considered for promotion.
WPC.2021/09R & CONN.CASES 109
The vacancies which occurred prior to the
amended rules would be governed by the old rules
and not by the amended rules. It is admitted by
counsel for both the parties that henceforth
promotion to the post of Sub-Registrar Grade II
will be according to the new rules on the zonal
basis and not on the State-wide basis and,
therefore, there was no question of challenging the
new rules. But, the question is of filling the
vacancies that occurred prior to the amended
rules. We have not the slightest doubt that the
posts which fell vacant prior to the amended rules
would be governed by the old rules and not by the
new rules.”
In A. Manoharan And Others v. Union of India And Others
((2008) 3 SCC 641), the Apex Court took the view that the
Regulations which were amended and having a prospective
effect could not be applied retrospectively and any vacancy
which had arisen prior to the coming into force of the said
Amended Regulations must be filled up in terms of the law as
was in force earlier.
39. In Dr. K. Ramulu And Another v. Dr. S. Suryaprakash
WPC.2021/09R & CONN.CASES 110
Rao and Others ((1997) 3 SCC 59), the question arose in the
following factual matrix: Government took a decision not to fill
up vacancies pending amendment of the Rules which had been
repealed. After referring to Shanker San’s case (supra) and
various other cases, the Court took the view that in view of the
Rules and the facts of the case, it was open to the Government to
have taken a decision not to make any appointment till the
amendment of the Rules. Even there, the Court approved of the
view that in regard to vacancies which were existing, eligible
candidates were required to be considered in accordance with
the prevailing Rules.
40. We have already referred to the decision in
Maharashtra State Judges Association And Others v. Registrar
General, High Court of Judicature at Bombay And Another
((2009) 1 SCC 569). The petitioner which was the State Judges
Association, contended that unification of posts was to be made
effective from 13.11.1991, which was the date on which the All
India Judges’ Association (I) case ((1992) 1 SCC 119) was
WPC.2021/09R & CONN.CASES 111
decided. Alternatively, it was contended that the unification into
three categories should be from 31.3.1994. The Court took the
view that what was directed in the All India Judges’
Association (I) case was that uniformity should be brought
about in the designation of Judicial Officers. In the All India
Judges’ Association’s case (II), namely (1993) 4 SCC 288, by
order dated 24.8.1993, implementation of Law Commission
recommendations to bring about uniformity in hierarchy,
designations and jurisdiction of Officers both on the Civil and
Criminal side, was ordered. It was held that only when the
Shetty Commission recommended, there should be only three
categories with pay scales, it became necessary to unify the
multiple categories into three categories. Shetty Commission
recommended applicability to the new pay scales with effect
from 1.7.1996. Further, the Court took note of the fact that the
Apex court in the All India Judges’ case, directed acceptance of
the Shetty Commission recommendation for three cadres with
effect from 1.7.1996. In the course of the Judgment, the Apex
WPC.2021/09R & CONN.CASES 112
Court, inter alia, held as follows:
“24. Shetty Commission, as a corollary to its
pay scale recommendation, recommended that
there should be only three cadres: District
Judges, Civil Judge (Senior Division) and Civil
Judge (Junior Division), and multiple categories
should be avoided. But, the recommendation
made in the report dated 11-11-1999 was not
binding, until it was accepted by this Court and
Rules were framed in terms of it. The said
recommendation was accepted in All India
Judges’ Assn.(III) by Judgment dated 21-3-2002.
By the said Order, this Court granted time upto
31-3-2003 to implement the said
recommendations. Until the recommendation was
accepted and Rules were framed, the
integration/caderisation was a nebulous concept
incapable of being claimed or enforced as a
right.”
41. There can be no manner of doubt that the petitioners
are justified in contending that their right to be considered for
appointment in accordance with the qualifications as to age as
were prescribed under the Rules and consequently their rights
WPC.2021/09R & CONN.CASES 113
under the Notification, cannot be imperiled by the amendment in
question. It is true that the right which the petitioners have is
only a right to be considered for selection in accordance with the
Rules and the Notification following the Rules.
42. This is the inevitable result of applying a doctrine
which has evolved over a period of nearly three decades of
judicial exposition of the legal principle applicable in such
cases. We are unable to accede to the contention raised on
behalf of the respondents that the said principle may not be
available to a judicial post. Apart from the fact that the
applicability of the doctrine must be decided on the basis of the
rationale behind the doctrine and there is nothing to detract from
the universality of its sweep, we also agree with the petitioners
that any deviation from the law laid down by an unbroken line
of decisions of the Apex Court would be at the expense of
endangering the very concept of the rule of law. At the heart of
the rule of law lies the concept of fairness. If we set our face
against recognising a right with the petitioners, we would be
WPC.2021/09R & CONN.CASES 114
doing so by recognising a point of difference between the
aspirants for judicial service and applicants for other posts in
respect of a matter where the distinction is irrelevant. In
essence, we would end up being open to criticism validly
levelled, we would think, of breaching the command of equality.
We are fortified in the view we take in this matter by the
decision of the Apex Court in Manjusree’s case (supra) which
also related to judicial service.
43. We also see no merit in the contention raised by Shri
A. Mohamed Mustaque that the doctrine has no application
unless there has been an appointment or a select list has been
drawn and at the end of the selection. While it may be true that
in many of the cases cited, the amendment was enacted after the
selection is over, in some cases, the amendment was brought
about before the interviews were held. Also, we note that in
these cases, the written test was conducted in October, 2007.
The amendment is in June, 2008. That apart and more
importantly, the principle which has been laid down is apposite
WPC.2021/09R & CONN.CASES 115
even when an amendment is enacted after the selection process
has begun and before the selection process has ended. This is
the view which has been expounded by the Apex Court as is
clear from the view taken by it which we have adverted to
earlier. If we take a different view, we also cannot overlook the
possibility of the doctrine being frustrated at the hands of the
concerned bodies by timing the amendment by delaying the
selection process.
44. We cannot overlook the fact that the High Court and
the State Government must be aware of the legal principle which
is established in this regard and were aware of the device open
to the law giver, to deal with the situation in question. In a
Republic governed by rule of law, it is important that the
constitutional bodies observe the law and adopt methods which
are available in law to deal with various situations that may
arise. Knowing the law, as we must presume that they did, when
the constitutional authorities still do not exercise the legislative
power to apply the amendment retrospectively, we feel that we
WPC.2021/09R & CONN.CASES 116
will be acting in the teeth of the law laid down by the Apex
Court itself, if we were not to recognize the right of the
petitioners to be considered for selection, ignoring the
amendment in question.
45. We also do not see merit in the contention of Shri A.
Mohamed Mustque that the grant of relief to the petitioners
should be refused on the basis of the principle established in
Indira Sawhney v. Union of India ((1992) Supp. 3 SCC 217). It
is necessary to notice the facts of the case which arose in Indra
Sawhney v. Union of India and Others ((2000) 1 SCC 168).
After the Judgment in the Ist Indra Sawhney’s case, all the
States were obliged to identify the creamy layer. The
Government of Kerala took time. There were contempt
proceedings. However, instead of appointing a Commission, it
passed an Act in the year 1995 which declared that there was no
creamy layer in the State of Kerala. It was this declaration
which was complained of as being contrary to the law laid down
in the Ist Indra Sawhney’s case and also Asok Kumar Thakur’s
WPC.2021/09R & CONN.CASES 117
case. In deciding the question, the Court, inter alia, considered
as to what is the law declared and the directions given in the
Indra Sawhney’s case. It also considered whether the
declaration could be undone by the legislature by a retrospective
validating Act containing a declaration, the effect of which was
to say that there was no creamy layer in the State of Kerala. The
Court after referring to the Judgments in the Ist Indra
Sawhney’s case as also in Asok Kumar Thakur’s case, took the
view that identification of the creamy layer was needed and the
norms laid down by the Central Government or State
Governments must apply not only for the immediate present, but
also for the future. This was found to be the declaration of the
law made in Indra Sawhney’s case and in Asok Kumar
Thakur’s case. It was in this context that the Court took the
view that the Court found that the declaration by the Legislature
of the State was a mere cloak unrelated to the facts in existence
and also contrary to the principles laid down by the Courts in
both Indira Sawhney’s case and in Asok Kumar Thakur’s case.
WPC.2021/09R & CONN.CASES 118
Various facts and circumstances are stated in the Judgment in
support of the same. They included the fact that the
Government requested the Court for time to appoint a
Commission to identify the creamy layer. Thus, this was a case
where the legislative exercise was specifically challenged as
being contrary to the declaration of the law by the Apex Court.
It also noted that the law violated Articles 14 and 16 of the
Constitution and, therefore, it is constituted violation of the
basic structure of the Constitution of India.
46. We have already noted that the acceptance of the
Report of the Shetty Commission by the Apex Court would not
amount to declaration of a law in the sense that the Court did not
contemplate that without any amendment to the Rules, the
qualification in question would come into play from the date of
the Judgment or from a prospective date. We do not think that
by conforming to the principles enunciated by the Apex Court
itself, that a candidate has a right to be considered in accordance
with the qualifications prevalent when the Notification is issued
WPC.2021/09R & CONN.CASES 119
and with reference to the relevant date mentioned therein, we
would be in any manner violating any principle of law declared
by the Apex Court.
47. As far as the decision in Sahadeva Valigan v. State of
Kerala (1988 (1) KLT 202), that was a case where the power to
select the Munsiffs which was originally located with the Public
Service Commission, was made over to the High Court. The
petitioners who had applied pursuant to the Notification issued
by the Public Service Commission and sat for the test, sought a
direction to be considered either by the Commission or by the
High Court. It was in such circumstances that the Court took
the view that the applications submitted by the petitioners could
not be revived by the High Court, and that the Commission had
become functus officio in so far as those posts were concerned,
as they had been withdrawn from the purview of the
Commission, and that the High Court was the sole repository of
selection. The Court took the view that it did not have the
power to direct another constitutional authority to transfer the
WPC.2021/09R & CONN.CASES 120
applications received by them to be processed by the Court. It
was noted that the Court could not accept the applications
received pursuant to the Notification issued by other authorities,
as it would violate Rules 7 and 11 of the Special Rules. Of
course, the Court took the view that the petitioners were only
candidates who had not been selected or advised and that the
applications did not create any legal right. We would think that
it may not be appropriate to treat the said decision as apposite to
deal with the facts situation in these cases. Further more, we
would think that in the light of various decisions of the Apex
Court which we have already referred to, no assistance can be
drawn by the respondents from the said decisions.
48. The decision in State of M.P. And Others v.
Raghuveer Singh Yadav and Others ((1994) 6 SCC 151) is
relied on to contend that what the petitioners have, is a
legitimate expectation which can be defeated by a change of
policy or the amendment of the Rules. That was a case where
after the conduct of the written examination for selection as
WPC.2021/09R & CONN.CASES 121
Inspector in the Weight and Measures Department and pending
interview, the Government amended the Rules and altered the
qualification for eligibility. On the basis of the amended Rules,
the Government withdrew the earlier Notification and intended
to proceed with the recruitment afresh. The respondents had
successfully challenged the amended Rules on the ground that
the Rules could not be amended retrospectively. It was in this
context that the Court held as follows:
“The candidates who had appeared for the
examination and passed the written examination
had only legitimate expectation to consideration
of their claims according to the rules then in
vogue. The amended rules have only prospective
operation. The Government is entitled to conduct
selection in accordance with the changed rules
and make final recruitment. Obviously, no
candidate acquired any vested right against the
State. Therefore, the State is entitled to withdraw
the notification by which it had previously notified
recruitment and to issue fresh notification in that
regard on the basis of the amended rules.”
But, in fact, the Court in paragraph (6) referred to P.
WPC.2021/09R & CONN.CASES 122
Mahendran’s case (supra) and distinguished it as follows:
“6. The ratio in P. Mahendran v. State of
Karnataka has no application to the facts in this
case. In that case, for the posts of Motor Vehicles
Inspector, apart from the qualifications prescribed,
they issued additional qualifications and selection
was sought to be made on the basis of additional
qualifications. It was held that since recruitment
was sought to be made on the basis of the
qualifications prescribed, the additional
qualifications prescribed thereafter have no
retrospective effect to the recruitment already set in
motion. Under those circumstances, additional
qualifications were directed not to be taken into
account for considering the claims of the candidates
on the basis of the original advertisement. The ratio
therein is clearly inapplicable to the facts in this
case.”
Therefore, the Court reiterated the principle in Mahendran’s
case. In fact, even the petitioners do not have a quarrel with the
proposition that if the Notification itself had been withdrawn in
this case in the light of the amendment and a fresh recruitment
WPC.2021/09R & CONN.CASES 123
was resorted to, there may not be any room for complaint. In
fact, this decision advances the case of the petitioners than the
respondents. The facts of these cases attract the principle in
Mahendran’s case and the other decisions of the Apex Court
and of this Court on the same lines.
49. We also do not think that Shri A. Mohamed Mustaque
is justified in contending that neither a writ of certiorari or
mandamus would lie. No doubt, he would contend that judicial
review of administrative action is not to be confused with
appellate jurisdiction and it is concerned with finding out
whether the impugned action is afflicted with illegality,
irrationality or procedural impropriety. (See the decision in 1984
(3) All Eng. Reports Page 935). But, if the action is illegal,
undoubtedly, interference may be justified. Also, a reference
to the decisions leave us in no doubt that the Apex Court has
evolved a principle of law that a person who has applied for a
post, has a right to be considered for appointment on the
strength of the conditions prescribed when he applied. The right
WPC.2021/09R & CONN.CASES 124
which the candidate has, cannot be taken away by virtue of an
amendment which purports to introduce qualifications, changes
in qualifications or disqualifications without doing so with
retrospective effect. It is clear that the amendment to the Rule
prescribing the qualifications as to age came into force only in
the year 2008. The words “at once” unambiguously convey the
legislative intention of prospective operation. There is no
retrospectivity intended or expressed.
50. No doubt, there is no right to be appointed, that is to
say, it is always open to the appointing authority to justify a
decision not to proceed with the selection process. But, that is
not the position here. In this case, the process which was
commenced by the issuance of the Notification pursuant to
which the petitioners applied and successfully underwent the
written examination, is not being terminated without
appointments being made. On the contrary, the official
respondents have very much drawn upon the very same
Notification and candidates who have applied pursuant thereto,
WPC.2021/09R & CONN.CASES 125
to complete the selection process on the strength of the
amendment to the Rules by excluding the petitioners solely for
non-fulfillment of the command of the amended provisions. This
we consider, is plainly impermissible.
51. The upshot of the discussion is as follows:
We hold that the amendment to the Rules is prospective
and will not affect the right of the petitioners to be considered in
accordance with law, for the post of District Judge in respect of
the six vacancies notified in the Notification. The decision to
exclude the petitioners on the basis of the amendment is illegal.
The petitioners have a right to be considered on the basis of their
performance in the written test and interview.
52. There will be a declaration that the amendment to the
Rule in question is prospective and does not affect the selection
process initiated under the Notification issued in 2007 and the
exclusion of the petitioners as per the said amendment is illegal.
Consequently, we issue a writ of mandamus directing the High
Court of Kerala and the State of Kerala to consider the claim of
WPC.2021/09R & CONN.CASES 126
the petitioners also in accordance with law, for appointment as
District Judge as against the six vacancies for which the
Notification was issued. The appointments which have already
been made being subject to the final decision in these Writ
Petitions, will depend upon the decision to be taken in regard to
the petitioners pursuant to this Judgment. The select list will
be recast on the basis of the decision. A decision as aforesaid
shall be taken within one month from the date of receipt of a
copy of this Judgment.
The Writ Petitions are allowed as above.
Sd/=
S.R. BANNURMATH,
CHIEF JUSTICE
Sd/=
K.M. JOSEPH,
JUDGE
kbk.
// True Copy //