TMI Blog2009 (11) TMI 994X X X X Extracts X X X X X X X X Extracts X X X X ..... y five 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 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 candid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ult 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. (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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scrutiny. He would submit that the prescription of eligibility to be appointed as a 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 as on 1.1.2007. But, he would contend that there would be no tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irtyfive 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... concerned with the 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 the All India Judges' case (supra). The delay in amending the Rules on the part of the Constitutional Authorities, he submitted, could not be cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Anr. v. State of T.N. and Anr. (1994) 5 SCC 509; Punjab Communications Ltd. v. Union of India and Ors. (1999) 4 SCC 727 and State of M.P. And Ors. v. Raghuveer Singh Yadav and Ors. (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 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 tim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egal right to be appointed. He also relied on Mani Subrat Jain And Ors. v. State of Haryana and Ors. (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 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 and Ors. v. George Mathew and Ors. 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 Ors.: 1993 Suppl. (3) SCC 234; S.B. Bhattacharjee v. S.D. Majumdar and Ors.: (2007) 10 SCC 513 Paragraph 36 and Renganatha Pai v. DIG of Police 1994 (2) KLT 366. 17. Shri S. Sreekumar, learned Counsel for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Ors. v. J. Sreenivasa Rao: (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 las ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the instructions contained in the earlier letter and in this context, it was, inter alia, held as 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 Ors. (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: This Court had held that a Secretary or Branch Manager of a Co-operative Society will not be e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Anr. 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 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 su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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. It is also necessary to bear in mind at this juncture paragraph 38 of the All India Judges' case (supra), which we have already 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 breath ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 Article 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 Article 234 and any aid and advice, on the subject, to the Governor in terms of Article 163 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stified 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 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 consu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cies 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 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 the Constitution that we no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld 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 District 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 work ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refore, 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, the State Legislature cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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. 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 clar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 Ors. (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 thirty five 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 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 apparent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 973 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 not have any effect on the proceedings which had commenced prior to August 18, 1975. In P. Mahendran And Ors. v. State of Karnataka and Ors.: (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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontain 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 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. In N.T. Bevin Katti And Ors. v. Karnataka Public Service Commission and Ors. (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rospective in nature, the selection must be regulated in accordance with the rules and 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. In Gopal Krushna Rath v. M.A.A. Baig (Dead) by Lrs. and Ors. (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 interviews, the Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Ors. (2005) 4 SCC 154 the appellant Commission advertised fifteen posts in all of Assistant Public Relations 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 relinquish ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 playe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 rules regulating conditions of service, with retrospective effect is undeniable, whether under Article 309 of the Constitutio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erview first and then the physical test. In Mohd. Sohrab Khan v. Aligargh Muslim University and Ors. (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 Ors. v. J. Sreenivasa Rao and Ors. (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 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 yea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on which the All India Judges' Association (I) case (1992) 1 SCC 119 was 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 Court, inter al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed, 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 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 conc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge of policy or the amendment of the Rules. That was a case where after the conduct of the written examination for selection as 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cations, 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, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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