Kerala High Court
Sajeev K.C vs Stateof Kerala on 25 February, 2016
Author: Antony Dominic
Bench: Antony Dominic, A.Hariprasad
IN THE HIGH COURT OF KERALAAT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE ANTONY DOMINIC
&
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
FRIDAY, THE 8TH DAY OF APRIL 2016/19TH CHAITHRA, 1938
WA.No. 426 of 2016 () IN WP(C).7204/2016
------------------------------------------
AGAINST THE ORDER/JUDGMENT IN WP(C) 7204/2016 of HIGH COURT OF KERALA
DATED 25-02-2016
APPELLANT(S)/PETITIONERS:
------------------------
1. SAJEEV K.C, S/O. CHANDRAN NAIR,
KIZHAKKEYIL, THENHIPALAM P.O., MALAPPURAM DISTRICT - 676 636.
2. JAYARAJ C.M, S/O. IMBICHI, KOTTOL HOUSE,
P.O.PALLIKKAL, MALAPPURAM DISTRICT.
BY ADV. SRI.P.C.SASIDHARAN
RESPONDENT(S)/RESPONDENTS:
--------------------------
1. STATEOF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
HIGHER EDUCATION DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM - 695 001.
2. THE CHANCELLOR
UNIVERSITY OF CALICUT, RAJ BHAVAN, THIRUVANANTHAPURAM - 695 001.
3. THE UNIVERSITY OF CALICUT
REPRESENTED BY ITS REGISTRAR, UNIVERSITY CAMPUS,
CALICUT UNIVERSITY P.O., THENJIPPALAM,
MALAPPURAM DISTRICT - 673 635.
4. THE VICE CHANCELLOR
UNIVERSITY OF CALICUT, CALICUT UNIVERSITY P.O.,
THENJIPPALAM, MALAPPURAM DISTRICT - 673 635.
ADDL.R5 MADHU C.V., VAILASSERY VARIYAM,
IRIMBILIYAM P.O., VALANCHERRY VIA, MALAPPURAM 679572.
ADDL.R6 VASU M., MUNDAPURATHMETHAL, PUTHUKODE P.O.,
RAMANATTUKARA VIA, MALAPPURAM 673 633.
ADDL.R7 SURESH BABU T., KALATHINGATTIL HOUSE,
THENHIPALAM P.O., MALAPPURAM 673 636.
ADDL.R8 ANEESH M.T., S/O.CHANDRAN,
SREECHANDRA, TAVANNUR P.O.,
MALAPPURAM DISTRICT, KERALA STATE 679573.
WA.426/16
2
ADDL.R9 MANOMOHANUNNI V., VARAYILAT HOUSE,
NELLICODE P.O., KOZHIKODE 673016.
ADDL.R10 SUJATHAK.V., MADATHIL HOUSE,
THENHIPALAM P.O., MALAPPURAM 673636.
ADDL.R11 SARALA P., PERATHARA,
CHOZHIMADAM PARAMB, FEROKE P.O.,
KOZHIKODE 673631.
ADDL.R12 RANJIT P.T.K., PAZETH THAZHE KUNIYIL HOUSE,
PERINGATHUR P.O., THALASSERY VIA,
KANNUR 670675.
ADDL.R13 SHEJITH E., S/O.BALACHANDRAN,
ENNAZHIYIL HOUSE, THEYYANJAD, PONNANI P.O.,
MALAPPURAM PIN 679 577.
ADDL.R14 BIJINESH C.K., S/O.BALAKURUP,
VAISHNAVAM, PARAVANTHALA, VADAGARA,
NUT STREET P.O., PIN 673104, KOZHIKODE DISTRICT.
ADDL.R15 ARUNKUMAR M. (MEMO ISSUED IN THE OLD ADDRESS
NAMELY ENO.790,KAMCO, ATHANI, ERNAKULAM, PIN 683585)
S/O.M.ANANTHAN, MANNARAKKAL HOUSE, CHETTIPPADI,
CHETTIPPADI P.O., PIN 676 319, MALAPPURAM DISTRICT.
ADDL.R16 SUJITHA N.V., NADUMUTTAM HOUSE,
DIVISION A, VETTILAPARA ESTATE, KALADY
PLANTATIONS P.O., ERNAKULAM 683583.
ADDL.R17 AJITH VENMONY, VENMANY MANA, VELLARAPPILLY P.O.,
S.M.NAGAR, ALUVA, ERNAKULAM 683 580.
(ADDL.R5 TO R7 IMPELADED VIDE ORDER DATED 8.4.2016 IN IA.285/16)
(ADDL.R8 TO R12 IMPELADED VIDE ORDER DATED 8.4.2016 IN IA.297/16)
(ADDL.R13 TO R15 IMPELADED VIDE ORDER DATED 8.4.2016 IN IA.339/16)
(ADDL.R16, R17 IMPELADED VIDE ORDER DATED 8.4.2016 IN IA.369/16)
R1 BY GOVERNMENT PLEADER SMT.A.LOWSY
R2 BY ADV. SMT.M.U.VIJAYALAKSHMI,
R2 BY ADV. SRI.K.JAJU BABU (SR.)
R3 &4 BY ADV. SRI.SANTHOSH MATHEW,SC,CALICUTY UNIVERS
RADDL.R5-R7 BY ADV. DR.K.P.SATHEESAN (SR.)
RADDL.R5-R7 BY ADV. SRI.P.MOHANDAS (ERNAKULAM)
RADDL.R5-R7 BY ADV. SRI.ANOOP.V.NAIR
RADDL.R5-R7 BY ADV. SRI.S.VIBHEESHANAN
RADDL.R5-R7 BY ADV. SRI.K.SUDHINKUMAR
RADDL.R8-R12 BY ADV. SRI.GEORGE JACOB (JOSE)
RADDL R13-R15 BY ADV. SRI.P.K.IBRAHIM
RADDL R13-R15 BY ADV. SMT.K.P.AMBIKA
RADDL R13-R15 BY ADV. SMT.A.A.SHIBI
RADDL R13-R15 BY ADV. SMT.M.H.BINDU
RADDL R13-R15 BY ADV. SRI.A.L.NAVANEETH KRISHNAN
RADDL R16, R17 BY ADV SRI.P.RAVINDRAN
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 01-04-2016, ALONG
WITH WA. 439/2016, WPC. 7204/2016, THE COURT ON 08-04-2016 DELIVERED THE
FOLLOWING:
APPENDIX IN WA.426/16
EXHIBIT R3(1) TRUE COPY OF THE GOVERNMENT ORDER DATED 4.2.2011.
EXHIBIT R3(2) TRUE COPY OF THE JUDGMENT DATED 16.7.2012 IN WPC.15248/12 OF
THS HON'BLE COURT.
EXHIBIT R3(3) TRUE COPY OF THE JUDGMENT DATED 28.9.2012 IN WA.1484/12 OF
THIS HON'BLE COURT.
EXHIBIT R3(4) TRUE COPY OF THE JUDGMENT DATED 1.6.2015 IN WA.268/15 OF THIS
HON'BLE COURT.
EXHIBIT R3(5) TRUE COPY OF THE JUDGMENT IN WPC.26018/15 DATED 4.12.2015 OF
THIS HON'BLE COURT.
EXHIBIT R3(6) TRUE COPY OF THE REPORT OF THE RECONSTITUTED SUB
COMMITTEE.
ANNEXURE A1 TRUE GOVERNMENT ORDER G.O(RT)NO.1569/2015/H.EDN DATED
24.6.2015.
ANNEXURE A2 TRUE EXTRACT OF THE OFFICE ORDER DATED 3.3.2016.
/TRUE COPY/
PS TO JUDGE
ANTONY DOMINIC & A. HARIPRASAD, JJ.
-----------------------------------
W.A.Nos.426 & 439 of 2016 &
W.P(C).No.7204 of 2016
-----------------------------------
Dated this the 8th day of April, 2016
JUDGMENT
Antony Dominic, J.
1. By interim order dated 25.2.2016 in W.P(C).7204/16, a learned single Judge ordered that the appointment made to the post of Integrated Last Grade Servants, Peons/Watchmen in the service of the Calicut University will be subject to the result of the writ petition. It is this order that is challenged in W.A.426/16. According to the appellants, learned single Judge should have stayed the further proceedings for appointment. When the appeal came up for consideration on 17.3.2016, on the request of the counsel appearing for both sides, this Court called for W.P(C).7204/16 also for hearing and disposal. It was accordingly that the writ petition came to be listed before the Division Bench.
2.W.A.No.439/16 arises from the judgment of the learned single Judge in W.P(C).6677/16, by which, the writ petition was dismissed. Since the subject matter of WA.426/16 & con. cases 2 challenge in both the writ appeals is the selection and appointment to the post of Integrated Last Grade Servants, Peons/Watchmen in the Calicut University, these cases were heard together.
3.In W.P(C).7204/16, the petitioners sought for a direction compelling the University of Calicut and its Vice Chancellor not to proceed further with the selection process, including that of preparation of ranked list and appointment to the post of Integrated Last Grade Servants, Peons/Watchmen or any other non- teaching posts in the service of the University after the promulgation of the Kerala Public Service Commission (Additional Functions as respects the Services under the Universities) Act, 2015 (Act 18 of 2015). They also sought for a declaration that the action of the University in proceeding with the selection and appointment to non-teaching posts in the service of the University after the promulgation of Act 18 of 2015 is without power, authority or jurisdiction.
WA.426/16 & con. cases 3
4.Briefly stated, facts of the case are that on 20.6.2005, the University of Calicut issued a notification inviting applications for appointment to the integrated cadre of Last Grade Servants, Peons/Watchmen. There were several litigations and finally, written test was conducted on 17.8.2008. The interview scheduled for the successful candidates was challenged in W.P(C).15248/12. That writ petition was disposed of by judgment dated 16.7.2012, directing that the process of interview shall be continued and completed by 31.12.2012. This judgment was challenged in W.A.1484/12, which was disposed of by judgment dated 28.9.2012. By this judgment, the appeal was disposed of directing the University to conduct a further test for shortlisting the successful candidates for interview. Accordingly, a test was conducted on 8.9.2013. Subsequently also, writ petitions were filed which were disposed of by judgment dated 19.11.2014. The judgment in W.P(C). 27806/13 was challenged in W.A.268/15. That appeal was dismissed by judgment dated 1.6.2015. Thereafter, on 4.6.2015, a shortlist of successful candidates for interview was published and the WA.426/16 & con. cases 4 interview was completed by August, 2015. Based on the performance of the candidates in the interview, the University published a ranked list on 27.2.2016.
5.In the mean time, the Kerala Public Service Commission (Additional Functions as Respects the Universities) Ordinance, 2015 (14 of 2015) was promulgated by the State, which came into force on 29.9.2015. As per the provisions of this Ordinance, notwithstanding anything contained in the University Act and the Statutes, Ordinances, Regulations and Rules made thereunder, it was made the duty of the Public Service Commission to prepare select list for appointment by direct recruitment of employees to the non-teaching posts of a University. Subsequently, Act 18 of 2015 was enacted and was brought into force with effect from 29.9.2015 and as per section 5 thereof, Ordinance 14 of 2015 was repealed.
6.Prior to the publication of the ranked list on 27.2.2016, the petitioners herein filed the writ petition on 24.2.2016 and the main contention raised was that on the introduction of the Ordinance, as WA.426/16 & con. cases 5 replaced by Act 18 of 2015, the University is denuded of its powers to prepare select list for appointment to non-teaching posts and that any appointment to non-teaching posts subsequent to 29.9.2015 can be made only in terms of section 3 of Act 18 of 2015 and on the basis of the select list prepared by the Public Service Commission. This contention was sought to be substantiated by referring to the provisions of Act 18 of 2015, the Calicut University Act, the Calicut University First Statutes and the Calicut University Ordinance, 1978. The counsel also placed reliance on various judgments of the Apex Court and this Court which shall be referred to in the course of this judgment.
7.However, on behalf of the University, it was contended that the selection process commenced in 2005 and got delayed on account of the various litigations and that the shortlist was published pursuant to the directions of this Court. According to them, Act 18 of 2015, having been brought into force only from 29.9.2015, cannot affect the WA.426/16 & con. cases 6 selection that was finalised pursuant to the notification issued by the University on 20.6.2005.
8.Yet another contention raised was that the writ petition filed is bad for non-joinder of necessary parties. According to the counsel, though about 450 candidates have been included in the final ranked list published by the University and some of them have already been appointed, the petitioners have not impleaded any one of them as parties to the case and that such a writ petition without impleading the affected parties, is liable to be dismissed for non- joinder of necessary parties.
9.Another contention raised is that the petitioners are not persons who were either applicants in response to the notification dated 20.6.2005 or in any manner affected by the action of the University and that therefore, they being not aggrieved persons, have no locus standi to maintain a writ petition questioning the further steps taken by the University pursuant to the notification or publication of the ranked list. WA.426/16 & con. cases 7
10.Impleading petitions have been filed by candidates who are included in the select list. According to the petitioners in IA.Nos.285/16, 297/16, 369/16 and 339/16 in W.A.426/16, they were issued orders appointing them in the University but could not join duty on account of the interim orders passed by this Court. It was contended by these petitioners that though Act 18 of 2015 has been enacted and brought into force, no corresponding amendment has been made in the University Act or in the Statutes framed thereunder. It was also contended that rules have not been framed in Act 18 of 2015 prescribing the procedure for consultation and for other matters. Therefore, in substance, the contention raised was that despite the Act being brought into force, the same has not become operational, obliging the University to consult the Public Service Commission and make appointments from the select list prepared by the PSC. They also supported the contention of the counsel for the University that the writ petition filed without impleading the affected parties is defective for non-joinder of necessary parties. Counsel also contended that there is nothing in the WA.426/16 & con. cases 8 Act indicating retrospectivity to the provisions thereof and that therefore, the Act cannot denude the University of its powers to make appointments from the select list published by it.
11.We have considered the submissions made.
12.Section 82 of the Calicut University Act, 1975 provides that notwithstanding anything contained in the Act, the First Statutes and the First Ordinances of the University shall be made by the Government. In exercise of its powers under section 82, the Government of Kerala have made the Calicut University First Statutes, 1977. Statute 6 in Chapter 4 deals with the constitution of the Calicut University Administrative Service and Statute 8 deals with the recruitment to posts. Chapter XV of the Calicut University First Ordinances, 1978, also made in terms of section 82 of the University Act, prescribes the scale of pay, qualification etc of various posts in the University. While the recruitment was thus governed by the provisions of the Calicut University Act and the First Statutes, 1977 and First WA.426/16 & con. cases 9 Ordinances, 1978, Ordinance No.14 of 2015 was brought into force with effect from 29.9.2015. This Ordinance does not contain any provision saving any action of the University. It was this Ordinance which was replaced by Act 18 of 2015.
13.Section 1(2) of Act 18 of 2015 specifically provides that "it shall be deemed to have come into force on the 29th day of September, 2015". As per section 2(a) of Act 18 of 2015, all Universities in Kerala, including Calicut University have been brought within the definition of 'University'. The expression 'non- teaching post' has been defined in section 2(c) as 'the non-teaching post as per the University Statutes concerned'. Section 3 of the Act provides for the functions of the Public Service Commission, which read thus:
"3. Functions of the Public Service Commission - (1) Notwithstanding anything contained in the University Acts specified in clause (a) of section 2 and the statutes, ordinances, regulations and rules made thereunder, it shall be the duty of the Public Service Commission to prepare select list, for WA.426/16 & con. cases 10 appointment by direct recruitment, of employees to the non-teaching post of a University.
(2) A University shall consult the Public Service Commission,-
(a) on all matters relating to the method of recruitment of the non-teaching staff of the University; and
(b) on the principles to be followed in making appointments by direct recruitment to the non-
teaching posts in the University and the suitability of candidates for such appointments.
(3) Where the Public Service Commission is consulted on a matter under sub-section(2), the Commission shall advise the University on that matter.
(4) In the case of any difference of opinion between the Public Service Commission and the University on a matter under sub-section (2), the University shall refer the matter to the Government and the decision of the Government thereon shall be final:
Provided that the Government shall, before taking a decision against the advise of the Public Service Commission, refer the matter to the Public Service Commission."
WA.426/16 & con. cases 11
14.Section 4 of the Act confers powers on the Government to make rules for carrying out the purposes of this Act in consultation with the PSC and the University. Sub-section (2) thereof provides that in particular and without prejudice to the generality of the power under section 4(1), such rules may provide for the matters enumerated in clauses (a) to (c), among which, clause (a) deals with the procedure to be followed by the University for consultation with the PSC. By section 5 of the Act, Ordinance 14 of 2015 is repealed. Section 5(2) provides that notwithstanding the repeal of the Ordinance, "anything or things done or any action or actions taken under the said Ordinance shall be deemed to have been done or taken under this Act". In other words, the Act only saves what is done under the Ordinance and nothing else.
15.In this background, the contention raised by the petitioners is that with effect from 29.9.2015, appointments to non-teaching posts in the Universities in Kerala shall be only from a select list prepared by the PSC in terms of Act 18 of 2015 WA.426/16 & con. cases 12 and that therefore, the action of the Calicut University in publishing the ranked list on 27.2.2016 is illegal and without jurisdiction. In order to substantiate this contention, learned counsel for the petitioners placed reliance on the judgment of the Apex Court in I.J.Divakar v. Government of Andhra Pradesh [(1982) 3 SCC 341] and this Court in Sahadeva Valigan v. State of Kerala [1988 (1) KLT 202], Simon Lukose v. D.S.P. Kottayam [1990 (2) KLT 371] and Vazhithala Service Co-operative Bank v. The Registrar of Co-operative Societies [2003 (2) KLT 653].
16. I.J.Divakar (supra) was a case where the Andhra Pradesh Public Service Commission invited applications to the post of Junior Engineers in Andhra Pradesh Engineering service and other allied services in the year 1977. The eligible applicants for the post were asked to appear for a viva voce test between November, 1978 and March, 1979. After conclusion of the viva voce test, the Commission was in the process of finalizing the select list. In exercise of its power under Article 320(3) of the WA.426/16 & con. cases 13 Constitution, on 14.9.1979, the Government of Andhra Pradesh issued an order, excluding from the purview of the Commission all appointments made by direct recruitment to any category at all levels in the State and Subordinate Services. The appellants were candidates who had applied in response to the advertisement issued by the Commission. Their prayer before the Administrative Tribunal was to direct the Commission to finalise the select list of candidates who appeared for the viva voce test and to make appointments from the select list. They also questioned the validity and legality of the Government Order. The Tribunal substantially rejected the contentions urged and dismissed the application filed making a recommendation that in the event there are vacancies and the select list is finalized and if any of the appellants finds his place within the zone of selection, he may be appointed or may be permitted to appear for the examination relaxing the age bar.
17.In the appeal filed before the Apex Court, one of the contentions raised was that the Government had no WA.426/16 & con. cases 14 power to withdraw the posts which were already within the purview of the Commission on the date of the advertisement. This contention was rejected by the Apex Court by holding thus:
"4. Proviso to clause (3) of Article 320 confers power on the Government as respects services and posts in connection with the affairs of the State to make regulations specifying the matters in which either generally or in any particular class of case or in any particular circumstances it shall not be necessary for a Public Service Commission to be consulted. Armed with this power G.O.No.646 was issued withdrawing various posts from the purview of the Commission. The only contention urged was that at the time when the advertisement was issued the post of Junior Engineer was within the purview of the Commission and even if at a later date the post was withdrawn from the purview of the Commission it could not have any retrospective effect. There is no merit in this contention and we are broadly in agreement with the view of the Tribunal that inviting the applications for a post does not by itself create any right to the post in the candidate who in response to the advertisement makes an application. He only offers himself to be considered for the post. His application only makes him eligible for being considered for the post. It does not create any right in the candidate to the post. If therefore, WA.426/16 & con. cases 15 on September 14, 1979, when G.O.No.646 was issued the appellants had no right to the post, at least they cannot be heard to contend that it was improper for the 1st respondent to withdraw the post of Junior Engineer from the purview of the Commission. In fact, it must be made distinctly clear that not merely the post of Junior Engineer but various other posts though within the purview of the Commission were withdrawn by the impugned G.O. only to the extent that there were certain direct recruits holding the posts for long number of years and as the Government had decided to regularise their services to the extent the posts were held by temporary servants eligible to get regularisation of service the corresponding posts were withdrawn from the purview of the Commission. The power to make such a regulation was not disputed because the power flows from the proviso to clause (3) of Article 320. As stated earlier, the only contention is that as in respect of the post of Junior Engineer an advertisement was already issued and the Commission was in the process of selecting candidates, the power under the proviso to clause (3) of Article 320 could not be exercised. We see no substance in this contention and the contention must be negatived."
18. Sahadeva Valigan (supra) was a case where the petitioners had submitted their applications to the Public Service Commission when applications were WA.426/16 & con. cases 16 invited in July, 1986 for appointment to the posts of Munsiffs. The petitioners were also allowed to sit for an examination conducted by the Commission, the result of which was not published and no further steps were taken by the Commission thereafter. It was at that stage that by an amendment dated 31.1.1987 the posts of Munsiffs and Magistrates of the Second Class were excluded from the purview of the PSC. Though the amendment made to the Kerala Public Service Commission (Consultation) Regulation, 1957 or to the Civil Judicial Services Special Rules were not under challenge, the contention raised was that the amendment did not have retrospective operation and therefore, can take effect only from 28.4.1987 and only in respect of vacancies which arose thereafter. It was therefore contended that in respect of vacancies notified by the PSC in 1986 and in respect of which steps have already been taken, the Commission alone and not the High Court, can process the application and prepare the list of approved candidates.
WA.426/16 & con. cases 17
19.This contention was rejected by this Court holding thus:
"12. The petitioners were only candidates for appointment, who offered themselves for selection. They have not been selected by any authority; nor were they advised by the Commission for appointment before the amendment was made in April 1987. The submissions of applications for the posts do not create any legal right in the applicants. They do not create any right to the post either. The amendment thus does not affect any of their rights. The question whether the amended rule is retrospective or not does not arise for consideration.
13. Moreover, there is no power vested in the Commission to make any selection for appointment to the post of Munsiffs after 2.4.1987. The power is vested only in the High Court and the High Court along can, therefore, invite applications and make the selection. The applications made earlier to the Commission and all steps taken by the Commission "fell through and must be regarded as invalid."
The applications cannot be revived by the High Court.
14. The Commission has become functus officio so far as these posts are concerned, as they have been withdrawn from the purview of the Commission. In this view, even though the WA.426/16 & con. cases 18 petitioners had submitted applications to the Public Service Commission pursuant to the notification in 1986, the Commission can no longer legally and validly proceed with those applications and cannot conduct an interview based on the results of the written examination they held.
15. When the amendment to the rule is not in challenge; when the Commission is no longer the authority to make selection for the appointment of Munsiffs, the Commission cannot proceed with any stage in that process of selection. The fact that a selection, process and commenced earlier does not give jurisdiction to the Commission, when under the statutory rule, no such power exists."
20.Simon Lukose (supra) was a case where the Government took a policy decision to stop direct recruitment and to fill up vacancies in Armed Reserve by transferring personnel from Armed Battalion on completion of 7 years. The amendment to special rules was brought into force with retrospective effect from the date of the policy decision. In challenging the amendment to the special rules, the main argument raised was that the petitioners had secured a vested right to be considered for appointment to the vacancies in the Armed Reserve and WA.426/16 & con. cases 19 those rights are not to be interfered with by the Government by retrospectively amending the rule. This contention was dealt with and was rejected by this Court by holding thus:
"9. The facts is Velayudhan's case (1985 KLT
793) will not in any way go to support the arguments advanced by the learned counsel representing the petitioners. In that case, as per the special rules, then in force, no one in the lower category was entitled to be promoted and appointed as Foreman. In such a contingency the vacancy was notified to the Public Service Commission for direct recruitment. While the process of selection was in progress, the Government amended the special rules. On account of the Amendment, Velayudhan became entitled to promotion to the post of Foreman. But a candidate advised by the Commission was appointed. When it was challenged, this court `held that on the date of the occurrence of the vacancy Shri Velayudhan was not qualified to hold the post and that the amendment to the rules brought out subsequently will not entitle him to claim the post with effect from the date of the occurrence of the vacancy.
After finding that Shri Velayudhan had no right to the post when the vacancy arose and when it was notified to the Commission, this court observed:
"Public Service Commission is a constitutional functionary which is invested with the WA.426/16 & con. cases 20 responsibility of making recruitment to the State Government service. Once the machinery for recruitment has been set in motion by notifying the vacancy to the Public Service Commission it cannot be brought to a grinding halt by amending the special rules and making the recruitment to a futile exercise".
This observation cannot help the petitioners in this case because the commission advised candidates for filling up all the notified vacancies from the select list prepared by it. The candidates so advised were appointed. Thus, the procedure initiated by the P.S.C. has under no circumstance been brought to a grinding halt.
10. The question whether the Government has got power to withdraw the post, already within the purview of the Public Service Commission on the date of notification issued by the Commission, by amending the rules came up for consideration before the Supreme Court in LJ. Divakar & Others v. Govt. of AP. (AIR 1982 SC 1555). In that case, the vacancies in the post of Junior Engineers in the Andhra Pradesh Engineering Service were notified to the Public Service Commission. The Commission invited applications for the post. Eligible candidates were interviewed by it. After the conclusion of the interview the Commission was in the process of finalising the select list. While so, in exercise of the powers conferred by the proviso to clause (3) of Art.320 of the Constitution, the Government excluded from the WA.426/16 & con. cases 21 purview of the Commission all appointments by direct recruitment to the post of Junior Engineer. This was so made for regularising the services of temporally servants who were appointed by direct recruitment by the Government. Upholding the power of the Government to exclude from the purview of the Commission the selection to a post, it was observed:
"The power to make such a regulation was not disputed because the power flows from the proviso to clause (3) of Art.320. As stated earlier, the only contention is that as in respect of the post of Junior Engineer an advertisement was already issued and the Commission was in the process of selecting candidates, the power under the proviso to clause (3) of Art.320 could not be exercised. We see no substance in this contention and the contention must be negatived".
11. Reliance was also made on the decision in P. Mahendran v. Sate of Karnataka (AIR 1990 SC
404) to contend that Government have no power to amend the rules so as to make the procedure initiated by P.S.C. for selection of candidates infructuous. In this case P.S.C. invited applications on 28-9-83 from candidates having diploma in mechanical engineering as well for the post of Motor Vehicle Inspectors. After holding test and interview Commission prepared a selection list on 22-6-1987. Selected candidates were given intimation of their selection and Government took steps for imparting them the training before WA.426/16 & con. cases 22 appointing them as Motor Vehicle Inspectors. While so, the State Government amended recruitment rules on 14-5-1987 omitting qualification of diploma in Mechanical Engineering for the post of Motor Vehicle Inspectors. By this amendment holders of Diploma in Automobile Engineering became exclusively eligible for appointment Some unsuccessful candidates challenged the selection of persons holding diploma in Mechanical Engineering in pursuance of the notification dated 28-9-1983. State contended that the amendment of 1987 was not retrospective and the amended rules does not affect the selection. Administrative Tribunal held that after the amendment of May, 1987 the Commission could not determine the result on the basis of the unamended Rules. Admittedly the Amending rule of May, 1987 did not contain any provision enforcing the amended rule with retrospective effect. In the absence of express provision in the amending Rules, it has to be held that the amendment is prospective in nature. Rules which are prospective in nature cannot take away or impair the rights of candidates having the requisite qualification on the date of application and date of selection. In this view Their Lordships observed:-
"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 WA.426/16 & con. cases 23 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 rule of 1987 does 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 rule was 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 Rule 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".
The court went on to state that the selection made by P.S.C. could not be held as illegal as the process of selection had commenced in 1983 which had to be completed in accordance with law as it stood at the commencement of the selection. The amended Rule could not thus invalidate the selection made by the Commission. According to me this decision cannot apply to the facts of this case. The Amendment specifically provides for retrospective WA.426/16 & con. cases 24 operation from 17-7-86. It has in no way gone to affect the selection of candidates and the advice of candidates to the vacancies notified by the Commission. Since the notified vacancies have been filled up by candidates advised by the Commission and the amendment has been specifically made effective from an anterior date vis., 17-7-1986 I do not find any ground to interfere with the action of the Government. In Mahendran's case (AIR 1990 SC 404) Their Lordships after referring to Divakar's case (1982) (3) SCC 341 = AIR 1982 SC 1555) took the view the Government in exercise of its constitutional power can take away the power of the Public Service Commission to conduct selection or prepare select list for filling up any post in a service under the Government. Thus, it is crystal clear that the Government have the power to exclude from the purview of the P.S.C. any post even while the Commission is proceeding with the any post even while the Commission is proceeding with the process of selection of candidates to that post. In Sahadeva Valigan v. State of Kerala (1988 (1) KLT 202), this court has upheld the order of the Government taking out the post of Munsiffs and Judicial Magistrates of Second Class from the purview of the P.S.C. while the Commission was in the process of selection of Munsiffs. In view of these decisions, it is now futile on the part of the petitioners to content that the Government have no power to change the special rules altering the method of appointment to the Armed Reserve." WA.426/16 & con. cases 25
21. Vazhithala Service Co-operative Bank (supra) is a case where the Board of Directors of the appellant Bank passed a resolution to make appointment to the post of Secretary by direct recruitment. After obtaining the permission of the Registrar, the Bank advertised the vacancy and invited applications on 20.11.2000. Written test was conducted by the Institute of Management in Government on 24.6.2001. While the interview was going on, on 5.7.2001, an order staying all further proceedings was delivered to the Bank. Finally, order dated 13.8.2001 was passed by the Assistant Registrar declaring that the steps taken by the bank for appointment to the post of Secretary was invalid and the bank was directed to make appointment only on the basis of written test conducted by the Co-operative Service Examination Board constituted under section 80 B of the Kerala Co-operative Societies Act, 1969, inserted by Act 1 of 2000 with effect from 25.1.2001.
22.In the writ petition filed by the bank, it was held by the learned single Judge that the written test for appointment to the post of Secretary had to be WA.426/16 & con. cases 26 conducted by the Co-operative Service Examination Board in accordance with section 80B of the Kerala Co-operative Societies Act read with rule 182A of the Rules. In the appeal filed challenging the judgment of the learned single Judge, rejecting the contentions, after extracting section 80 B of the Kerala Co-operative Societies Act, the Division Bench held thus:
"Though S.80B was inserted by Act No.1 of 2000 published in Kerala Gazette Extraordinary dated 1.1.2000 it was brought into force only with effect from 25.1.2001 as per G.O.(P) No. 19/2001/Co-op. dated 25.1.2001 (SRO No. 89/2001) published in Kerala Gazette Extraordinary Vol. 46, No. 165, dated 29.1.2001. The powers and functions of the Co-operative Service Examination Board constituted under S. 80B of the Act are stated in R. 182A(1) of the Rules. Such powers and functions include the conduct of the written examination of candidates for selection to various categories of posts as specified in S. 80B of the Act as and when the requisition for such examination is received from the concerned societies and making of all required arrangements in connection with the examination including the preparation of question papers, supervision, valuation etc. As per R.182 A(6), the Co-operative WA.426/16 & con. cases 27 Service Examination Board shall frame necessary regulations and rules of procedure for the proper conduct of examination and get it approved by the Government before its publication. The terms and conditions of appointment of the members of the Co-operative Service Examination Board are stated in R. 182B of the Rules. R. 182A was inserted by SRO No. 380/2000 published in Kerala Gazette Extraordinary No. 45 dated 2.5.2000 and R.182B was inserted by SRO 24/2001 published in Kerala Gazette Extraordinary No. 46 dated 8.1.2001. In exercise of the powers conferred by S.80B of the Act read with R.182B of the Rules, the Government of Kerala constituted the Co-operative Service Examination Board as per G.O.(P) No. 18/2001/Co- op. dated 25.1.2001 (SRO No. 88/2001) published in Kerala Gazette Erxtraordinary Vol. 46 (No. 164) dated 29.1.2001. The newly constituted Co- operative Service Examination Board framed necessary regulations and rules of procedure for the proper conduct of examinations and submitted it for approval of the Government as per R. 182A (6) of the Rules. The said regulations and rules of procedure were approved by the Government as per G.O. (Ms) No.74/2001/Co-op. dated 5.5.2001.
6. Admittedly, the vacancy of Secretary of the Bank arose on 1.9.2000. The Bank had passed resolutions dated 3.7.2000 and 28.10.2000 resolving to make appointment to the vacancy of Secretary by direct recruitment and sought the permission of the Registrar of Co-operative WA.426/16 & con. cases 28 Societies for making such appointment by direct recruitment. As per Ext. P4(a) letter dated 16.11.2000, the Registrar permitted the Bank to get the written test conducted by the Institute of Co-operative Management, Thiruvananthapuram. When the said Institute expressed their inability to conduct the written test, the Bank again approached the Registrar of Co-operative Societies and as per Ext. P4 letter dated 12.1.2001 the Bank was given permission to get the written test conducted by the Institute of Management in Government, Ernakulam. Admittedly the Bank wrote to the Institute of Management in Government, Ernakulam only on 8.2.2001 requesting them to conduct the written test. In the meanwhile, S. 80B of the Act was brought into force with effect from 25.1.2001 and the Co- operative Service Examination Board was constituted by the Government of Kerala as per G.O.(P) No. 18/2001/Co-op. dated 25.1.2001. Hence, with effect from 25.1.2001 the written examination for all direct recruitment to posts of and above the category of Junior Clerks in the Primary Agricultural Credit Societies, Primary Credit Societies, Urban Co-operative Banks and Primary Agricultural and Rural Development Banks in the State of Kerala could be conducted only by the Co-operative Service Examination Board. In other words, the permission granted by the first respondent, Registrar of Co-operative Societies as per Ext. P4 letter dated 12.1.2001 could not have any force or operation with effect from 25.1.2001. WA.426/16 & con. cases 29 Though Ext.P4 letter was valid when it was issued, it ceased to be operative with effect from 25.1.2001 because the administrative order issued by the first respondent, Registrar of Co-operative Societies, could not over ride the statutory provisions contained in S. 80B of the Act. It is significant that the Bank wrote to the Institute of Management in Government, Ernakulam only after S.80B of the Act was brought into force and the Co-operative Service Examination Board was constituted. Notwithstanding the permission granted by the Registrar of Co-operative Societies as per Ext. P4 letter dated 12.1.2001, the action taken by the Bank in writing to the Institute of Management in Government, Ernakulam and getting the written examination conducted by the said Institute was in contravention of S. 80B of the Act and therefore, the said action could not have been approved or upheld by the second respondent. Hence, the decision of the second respondent in Ext. P12 to the extent of setting aside the action of the Bank in getting the written examination conducted by the Institute of Management in Government, Ernakulam and interviewing the candidates selected on the basis of the said written examination, is perfectly legal and justified. However, there is no justification for setting aside the decision of the Bank to make appointment to the vacancy of Secretary by direct recruitment and its action in seeking and obtaining permission of the Registrar for making the appointment by direct recruitment. The said WA.426/16 & con. cases 30 decision and action of the Bank were not contrary to any statutory provision and the first respondent Registrar of Co-operative Societies was competent to grant permission to make the appointment by direct recruitment. The second respondent, Assistant Registrar of Co-operative Societies was not competent to review, modify or cancel the decision of the Registrar in that regard. Hence the action taken by the Bank to fill up the vacancy of the Secretary of the Bank by direct recruitment was legal and valid and it could not have been interfered with by the second respondent. In view of the statutory provisions contained in S.80B of the Act, the Bank can continue with the proceedings for making appointment to the post of Secretary through a written examination conducted by the Co-operative Service Examination Board.
7. There is no merit in the contention of the appellant that since S. 80B of the Act has no retrospective effect, the Bank was entitled to get the written examination conducted by the Institute of Management in Government, Ernakulam. The written examination was actually conducted only on 24.6.2001. Even the requisition to the Institute for conducting the written examination was send by the Bank only on 8.2.2001, i.e., after the coming into force of S. 80B of the Act and the constitution of the Co-operative Service Examination Board. The fact that the vacancy had arisen on 1.9.2000 or that the vacancy WA.426/16 & con. cases 31 was advertised and applications were invited and permission was obtained from the first respondent to get the written examination conducted by the Institute of Management in Government, Ernakulam before the coming into force of S. 80B of the Act and the constitution of Co-operative Service Examination Board, cannot exclude the operation of S. 80B of the Act in this case. As per S. 80B of the Act no change was effected in the matter of qualification or criteria for eligibility. The only change was in respect of agency for conducting the written examination. So long as the written examination was not actually conducted before the coming into force of S. 80B and the constitution of the Co-operative Service Examination Board, the Bank was bound to get the written examination conducted only by the Co- operative Service Examination Board as required under S. 80B of the Act. It is true that S. 80B has only prospective operation; but, after the coming into force of S. 80B the written examination can be conducted only by the Co- operative Service Examination Board. In this case, even the requisition to the Institute of Management in Government was sent only after the coming into force of S. 80B of the Act. Hence, the reliance placed by the learned counsel for the appellant on the decisions in P.Mahendra & Ors. v. State of Karnataka (AIR 1990 SC 405) and A.A. Calton v. The Director of Education and another (AIR 1983 SC 1143) is totally misplaced. Those decisions have no application to the facts of WA.426/16 & con. cases 32 this case."
23. We have gone through the judgments relied on by the counsel for the petitioners. In so far as the judgment in I.J.Divakar (supra) is concerned, from the facts that we have noticed, it can be seen that the case was that after the PSC had invited applications for appointment to the post of Junior Engineer, the Government issued orders withdrawing that post from the purview of the PSC and the contention raised was that when the advertisement was issued, the post of Junior Engineer was within the purview of the Commission and even if at a later date, the post was withdrawn from the purview of the Commission, it could not have any retrospective effect. In this context, it has to be noted that in that case, after receipt of the applications, candidates were asked to appear for a viva voce test and the order withdrawing the post from the purview of the PSC was issued by the Government while the process of finalizing the select list was going on. It was therefore that the Apex Court held that invitation of an application to the post does not by WA.426/16 & con. cases 33 itself create any right to the post in a candidate, who, in response to the advertisement, makes an application. On that basis, the Apex Court held that on 14.9.1979, when the Government order was issued, the appellants had no right to the post and therefore, they cannot be heard to contend that it was improper for the Government to withdraw the post from the purview of the PSC.
24.Turning to the Division Bench judgment of this Court in Sahadeva Valigan (supra), that again was a case where, in July, 1986, applications were invited by the PSC for appointment to the post of Munsiff and the applicants were allowed to sit for an examination conducted on 6.12.1986. The result of the examination was not published and no further steps were taken by the PSC and it was in the mean while that the rules were amended and the post of Munsiffs and Magistrates of the Second Class were excluded from the purview of the PSC. It was in this factual background that in paragraphs 12 to 15, the Division Bench has held that the petitioners were only candidates who offered themselves for selection and WA.426/16 & con. cases 34 that the submission of the applications for posts did not create any legal right in their favour. Proceeding further, the Division Bench also held that after 28.4.1987, when the rules were amended, the Commission did not have any power to make selection for appointment to the post of Munsiffs and that the power was vested with the High Court.
25.In so far as the judgment in Simon Lukose (supra) is concerned, facts of that case would show that this Court had specifically found that the notified vacancies were filled up by candidates advised by the Commission and the amendment being retrospective, there was no reason to interfere with the matter.
26.Though, at the first blush, it would appear that the judgment in Vazhithala Service Co-operative Bank (supra) lends support to the case of the petitioners, a closer reading of the judgment shows that the Division Bench has specifically taken note of the fact that even the requisition for conducting written examination was made and examination was conducted much after section 80 B was brought into force. It WA.426/16 & con. cases 35 was taking note of this factual aspect that the Division Bench distinguished the Apex Court judgments that were relied on by the appellant Bank. These three judgments relied on by the counsel for the petitioners, in our view, were rendered in factually incomparable situations and cannot be called in aid to sustain the challenge against the action of the University.
27.On the contrary, on behalf of the University, our attention was drawn to the judgment of the Apex Court in A.A.Calton v. Director of Education [(1983) 3 SCC 33]. That was a case where appointment to the post of Principal of the Ranikhet Intermediate College, Ranikhet, a minority educational institution, was made by the Director of Education by order dated 8.3.1977. That appointment was questioned on the ground that it was opposed to section 16 F of the U.P. Intermediate Education Act, 1921 as they stood on the date of appointment, since, as on that date, by reason of amendment made to the Act by U.P. Act 26 of 1975, which had come into force on 18.8.1975, the power of the Director to make appointment was taken WA.426/16 & con. cases 36 away in relation to minority institutions. This contention was negatived by the High Court and in the appeal filed, upholding the judgment, the Apex Court held thus:
"5. It is no doubt true that the Act was amended by U. P. Act 26 of 1975 which came into force on August 18, 1975 taking away the power of the Director to make an appointment under Section 16-F (4) of the Act in the case of minority institutions. The amending Act did not however, provide expressly that the amendment in question would apply to pending proceedings under Section 16-F of the Act. Nor do we find any words in it which by necessary intendment would affect such pending proceedings. The process of selection under Section 16-F of the Act commencing from the stage of calling for applications for a post up to the date on which the Director becomes entitled to make a selection under Section 16-F (4) (as it stood then) is an integrated one. 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 WA.426/16 & con. cases 37 directs that it should have such retrospective effect. In the instant case admittedly the proceedings for the selection had commenced in the year 1973 and after the Deputy Director had disapproved the recommendations made by the Selection Committee twice the Director acquired the jurisdiction to make an appointment from amongst the qualified candidates who had applied for the vacancy in question. At the instance of the appellant himself in the earlier writ petition filed by him the High Court had directed the Director to exercise that power. Although the Director in the present case exercised that power subsequent to August 18, 1975 on which date the amendment came into force, it cannot be said that the selection made by him was illegal since the amending law had no retrospective effect. It did not have any effect on the proceedings which had commenced prior to August 18, 1975. Such proceedings had to be continued in accordance with the law as it stood at the commencement of the said proceedings. We do not, therefore, find any substance in the contention of the learned counsel for the appellant that the law as amended by the U. P. Act 26 of 1975 should have been followed in the present case."
28.The judgment in A.A.Calton (supra) was followed by the Apex Court in P.Mahendran v. State of Karnataka [(1990) 1 SCC 411]. That was a case where on WA.426/16 & con. cases 38 28.9.1983, the Karnataka Public Service Commission issued an advertisement inviting applications for appointment to the post of Motor Vehicle Inspectors. In terms of the recruitment rules, holders of Diploma in Automobile Engineering or Diploma in Mechanical Engineering were eligible to be considered. After completion of the selection process, the Commission declared the results of selection on 22.6.1987 and the same was published in the gazette dated 23.7.1987. Meanwhile, the Government of Karnataka amended the recruitment rules by notification dated 4.5.1987, omitting the qualification of Diploma in Mechanical Engineering. Some of the unsuccessful candidates at the selection held by the Commission preferred application before the Administrative Tribunal praying to quash the select list and also to quash the notification dated 28.9.1983 inviting the applications for appointment on the ground that after the amendment of the rules in 1987, no person holding Diploma in Mechanical Engineering was qualified for appointment and that therefore, fresh selection should be made in accordance with the amended rules. The Tribunal held that after the amendment in 1987, WA.426/16 & con. cases 39 the Commission could not make selection or determine the result on the basis of the rules which existed prior to the amendment and as such, selection of candidates holding Diploma in Mechanical Engineering was illegal. In the appeals filed, the Apex Court set aside the order of the Tribunal by holding inter alia thus:
"5. 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 Rule of 1987 does 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 Rule was 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 WA.426/16 & con. cases 40 process of selection had already commenced when the amending Rules came into force. The amended Rule 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.
6. In A. A. Calton v. Director of Eduction, (1983) 3 SCC 33: (AIR 1983 SC 1143), this Court considered the validity of appointment of Principal by the Director of Education made under S. 16F of the U.P. Intermediate Education Act 1921. The High Court quashed the selection of Principal on the ground that the appointment had been made by the Selection Committee and not by the Director of Education as required by S. 16F(4) of the Act. The High Court directed the Director of Education to make selection and appointment. Pursuant to the direction of the High Court, the Director made appointment to the post of Principal by his order dated March 8, 1977, but before that date, S. 16F (4) of the Act was amended on August 18, 1975 taking away the power of the Director to make appointment under Section 16F(4) of the Act. In view of the amendment of S, 16F of the Act, validity of the order of the Director of Education dated March 8, 1977 making appointment to the post of Principal was again questioned. The High WA.426/16 & con. cases 41 Court dismissed the writ petition: thereupon the unsuccessful party preferred appeal. This Court held as under (para 5):
"It is no doubt true that the Act was amended by U. P. Act 26 of 1975 which came into force on August 18, 1975 taking away the power of the Director to make an appointment under S. 16F(4) of the Act in the case of minority institutions. The amending Act did not, however, provide expressly that the amendment in question would apply to pending proceedings under S. 16F of the Act. Nor do we find any words in it which by necessary intendment would affect such pending proceedings. The process of selection under S. 16F of the Act commencing from the stage of calling for applications for a post up to the date on which the Director becomes entitled to make a selection under S. 16F(4) (as it stood then) is an integrated one. At every stage in that process certain rights are created in favour of one or the other of the candidates. Section 16F 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 WA.426/16 & con. cases 42 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. Such proceedings had to be continued in accordance with the law as it stood at the commencement of the said proceedings. We do not, therefore, find any substance in the contention of the learned counsel for the appellant that the law as amended by the U. P. Act 26 of 1975 should have been followed in the present case."
7. In view of the above the appellants' selection and appointment could not be held as illegal as the process of selection had commenced in 1983 which had to be completed in accordance with law as it stood at the commencement of the selection. The amendment Rule could not be applied to invalidate the selection made by the Commission. Strangely the Tribunal did not follow the latest authority of this Court as laid down in Calton's case, (AIR 1983 SC 1143), on the ground that the view taken in that case was contrary to the WA.426/16 & con. cases 43 Constitution Bench decision of this Court in State of Andhra Pradesh v. T. Ramakrishna Rao, (1972) 4 SCC 830: (AIR 1972 SC 2175). We have carefully considered the decision but we do not find anything therein contrary to the view taken in Calton's case."
29.It was also held in paragraph 11 thus:
"11. . . . . . . If a candidate applies for a post in response to advertisement issued by Public Service Commission in accordance with recruitment Rules he acquires right to be considered for selection in accordance with the then existing Rules. This right cannot be affected by amendment of any Rule unless the amending Rule is retrospective in nature. In the instant, case the Commission had acted in accordance with the then existing rules and there is no dispute that the appellants were, eligible for appointment, their selection was not in violation of the Recruitment Rules. The Tribunal in our opinion was in error in setting aside the select list prepared by the Commission."
30.Similar view has been taken by the Apex Court in Secretary, A.P.Public Service Commission v. B.Swapna [(2005) 4 SCC 154], where, in paragraph 14, it was held thus:
WA.426/16 & con. cases 44 "14. The High Court has committed an error in holding that the amended rule was operative. As has been fairly conceded by learned counsel for Respondent 1 applicant it was the unamended rule which was applicable. Once a process of selection starts, the prescribed selection criteria cannot be changed. The logic behind the same is based on fair play. A person who did not apply because a certain criterion e.g. minimum percentage of marks can make a legitimate grievance, in case the same is lowered, that he could have applied because he possessed the said percentage. Rules regarding qualification for appointment if amended during continuance of the process of selection did not affect the same. That is because every statute or statutory rule is prospective unless it is expressly or by necessary implication made to have retrospective effect. Unless there are words in the statute or in the rules showing the intention to affect existing rights the rule must be held to be prospective. If the rule is expressed in a language which is fairly capable of either interpretation it ought to be considered as prospective only. (See P.Mahendran v. State of Karnataka and Gopal Krushna Rath v. M.A.A.Baig)."
31.As we have already stated, Ordinance 14 of 2015 did not contain any saving provision and Act 18 of 2015 only saved the actions taken under the Ordinance. WA.426/16 & con. cases 45 The Ordinance and the Act were specifically brought into force only with effect from 29.9.2015. As held by the Apex Court in Sangam Spinners v. Regional Provident Fund Commissioner [(2008) 1 SCC 391], it is a cardinal principle of construction that every statute is prima facie prospective unless it is expressly or by necessary implication made to have retrospective operation and the absence of a saving clause in a new enactment preserving rights and liabilities under the repealed law is neither material nor decisive of the question. This principle has been reiterated by the Apex Court in its judgment in J.S.Yadav v. State of Uttar Pradesh [(2011) 6 SCC 570]. In so far as this case is concerned, having regard to the provisions of Act 18 of 2015, there cannot be any doubt that the Act is prospective in operation.
32.These judgments of the Apex Court that were relied on by the counsel for the University would show that in a case where the rules undergo change prospectively, the change in the rules cannot affect any steps already taken by a competent authority to WA.426/16 & con. cases 46 make appointments in terms of the existing Recruitment Rules. In so far as this case is concerned, though the recruitment process had commenced in the year 2005, the ranked list could be published only in 2016 and the delay was mainly on account of the various litigations that were instituted before this Court. Admittedly, until 29.9.2015 when Act 18 of 2015 was implemented, it was well within the powers of the University to make appointments to the non-teaching posts. It was in exercise of that power that the University invited applications, conducted selection and finalized the same. Such action taken by the University cannot be affected by a prospective enactment brought into force with effect from 29.9.2015.
33.Having regard to our conclusion on the competence of the University to complete the proceedings pursuant to the notification dated 20.6.2005 in spite of Act 18 of 2015, the remaining contentions raised on the maintainability of the writ petition, on the issue of non-joinder of necessary parties and that the provisions of the Act have not become operational, WA.426/16 & con. cases 47 pales into insignificance and do not require to be considered.
34.Since we have already decided W.P(C).7204/16, it is not necessary to deal with W.A.426/16 filed against the interim order passed in that writ petition.
35.In W.A.439/16 also, the proposed appointment to the post of Integrated Last Grade Servants, Peon/Watchmen in the service of the Calicut University is challenged. The legal contentions urged by the petitioners in W.P(C).7204/16 are not pleaded in this case. On the other hand, referring to Ext.P7, an extract of the ranked list published by the Calicut University and the marks awarded in the written test and in the interview, the contention raised by the counsel for the appellants is that a deliberate attempt was made to favour some of the candidates and to exclude some other candidates from the ranked list. According to him, certain candidates who fared excellently in the written test were awarded low marks and high marks were awarded to certain candidates who fared poorly. It was pointed out that WA.426/16 & con. cases 48 this was done deliberately to favour certain candidates in the selection process. However, this contention was rejected by the learned single Judge and it is aggrieved by this judgment, the appeal is filed.
36.At the state of admission itself, we were not inclined to entertain this appeal. But, in spite of it, the appeal was entertained, having regard to the fact that we had already admitted W.A.426/16, where the subject matter was the same. In so far as the contention regarding awarding of marks is concerned, according to us, the fact that higher marks have been awarded to a person who fared poorly in the written test or that comparatively lower marks have been awarded to a person who has fared better, by itself, cannot indicate that any favouritism has been shown to anybody or that any hostility has been shown to anyone. Awarding of marks will depend upon the assessment by the members of the interview committee and such assessment by the members of the committee cannot be challenged only on the yardstick of the marks that are awarded. Therefore, we agree fully WA.426/16 & con. cases 49 with the learned single Judge and W.A.439/16 does not merit interference.
For the aforesaid reasons, the writ petition and the appeals are dismissed. No costs.
Sd/-
ANTONY DOMINIC, Judge.
Sd/-
A. HARIPRASAD, Judge.
kkb.