TaxTMI 
TaxTMI 
2009 (11) TMI 994
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....g the qualification of minimum age as thirty five and the maximum age as forty 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. &n....
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....ve 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. (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....
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....res 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 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 argumen....
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....though the petitioner was practising as an Advocate on the relevant day, subsequently he came to be 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. 8.....
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....f 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 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 ap....
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....(P) Ltd. and Anr. (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 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....
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....tion. 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 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 t....
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....he 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 Ors. v. Union of India and Ors. (1992) 2 Supp. SCC 318 and Karnataka Bank Limited v. State of A.P. and Ors. (2008) (2) SCC 254 for the proposition that candidates have no legal 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 wa....
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....liance 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 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 Ape....
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....ribe 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 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 Comm....
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....wn 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 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 cla....
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....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 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 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 certai....
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....r 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 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 necessar....
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....hat 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 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 afor....
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....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 Ors. v. Registrar General, High Court of Judicature at Bombay and Anr. (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.....
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....he argument of the learned Counsel for the petitioners that if the Judgment of the 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 of the Rules as dictated by the Apex Court....
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....acancies. 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 Anr. v. Bal Mukund Sah and Ors. (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 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, c....
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....ion 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 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 co....
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....d 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 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 app....
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....tment's 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, 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 ....
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....igh 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 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 C....
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....sobedience, 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 that 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 wr....
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....s 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 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....
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....h 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 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 ....
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....igh 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 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 peti....
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....ndment 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, 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 qualif....
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.... 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 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 r....
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....ording 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: 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 ....
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....e 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 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 di....
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....d 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 malice in law. 37. In K. Manjusree v. State of Andhra Pradesh and Anr.: (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....
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....ia after completion of the selection process, when the entire selection proceeded on the basis that there will be no minimum marks for the interview. 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 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 ....
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.... 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 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 empower....
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....ssible 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 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. In Amlan Jyoti Borooah v. State of Assam and Ors. (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 Ors. (2009) 4 SCC 555 the Court held that recruitment must be held in accordance with ....
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.... earlier. 39. In Dr. K. Ramulu And Anr. v. Dr. S. Suryaprakash Rao and Ors.: (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 Ors. v. Registrar General, High Court of Judicature at Bombay and Anr. (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 decided. Alternatively, it was contended that the unification into three categorie....
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....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 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 Ma....
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....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 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....
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....view that it did not have the power to direct another constitutional authority to transfer the 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 Ors. v. Raghuveer Singh Yadav and Ors. (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 Inspector in the Weig....
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....he 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 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 amendm....