Kerala High Court
Bijulal Kumar G vs The Travancore Devaswom Board on 28 May, 2009
Bench: P.R.Raman, P.Bhavadasan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 12965 of 2007(R)
1. BIJULAL KUMAR G., S/O. GOPALAKRISHNAN
... Petitioner
2. R.HARIDAS,
3. S.VIJAYA KUMAR,
4. SUNIL T.V.,
5. SREEKUMAR C.K.,
Vs
1. THE TRAVANCORE DEVASWOM BOARD,
... Respondent
2. THE DEVASWOM COMMISSIONER,
3. THE CHIEF ENGINEER (GENERAL),
For Petitioner :SRI.ANCHAL C.VIJAYAN
For Respondent :SRI.M.K.CHANDRA MOHANDAS
The Hon'ble MR. Justice P.R.RAMAN
The Hon'ble MR. Justice P.BHAVADASAN
Dated :28/05/2009
O R D E R
P.R. RAMAN & P.S. GOPINATHAN, JJ.
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W.P.(C) NO. 12965 OF 2007
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DATED THIS, THE ....TH DAY OF MAY, 2009.
J U D G M E N T
Raman, J.
Petitioners, five in number, were among the applicants for the post of Light Motor Vehicle Driver Grade -II in the service of the Travancore Devaswom Board. Though they were duly selected, they were not issued with any order of appointment. Hence they filed this writ petition for issuance of a writ of mandamus or other appropriate writ of direction commanding the third respondent Chief Engineer to issue orders of appointment to them in the available vacancies of Light Motor Vehicle Driver Grade - II, as per Exts.P5 and P6 and for a declaration that they are entitled to be appointed to the said posts.
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2. The Travancore Devaswom Board is the first
respondent herein. Second respondent is the Devaswom
Commissioner and the third respondent is the Chief Engineer who is the Head of the Department and authorized to issue orders of appointment. The Travancore Devaswom Board is a body created by the Statute as per the provisions of the Travancore Cochin Hindu Religious Institutions Act, 1950 (hereinafter referred to as 'TCHRI Act'). It invited applications for the post of Light Motor Vehicle Driver Grade -II by issuing notification published in Mathrubhoomi Daily dated 23.6.2005, copy of which is produced as Ext.P1. The notification is for the existing vacancies and also for the future vacancies that may arise within a period of one year after the publication of the select list. According to the petitioners, six posts of Light Motor Vehicle Driver - Grade II were lying vacant in the service of the Travancore Devaswom Board as on 1.6..2005. This is not seriously disputed. Pursuant to the notification Ext.P1, WP(C) 12965 OF 2007 :3:
the Travancore Devaswom Board constituted a selection committee consisting of the Chief Engineer as the Chairman, the Executive Engineer and also a retired Regional Transport Officer as members vide Resolution dated 12.9.2005, produced as Ext.P2 in this case. Ext.P3 is the minutes of the meeting held by the selection committee as per which it was decided to prepare a list of candidates securing 50 marks and above to be submitted before the Board for further action in the matter. Subsequently a practical test was conducted and submitted a list of 91 candidates who acquired 50 marks and above, to the Travancore Devaswom Board. As per Ext.P4 resolution dated 23.1.2007, the Board considered the report of the Chief Engineer dated 23.1.2006, the proceedings of the selection committee and the rank list containing 91 candidates. The Board resolved to accept the marks awarded by the Selection Committee and the rank list and to authorise the Secretary to forward the list of 17 persons WP(C) 12965 OF 2007 :4:
those who obtained sixty marks and above in the practical test to the Chief Engineer (General) for appointment in the existing and arising vacancies on the basis of communal rotation as per the Notification of the Board ROC No. 5151/96/Est. 1 dated 1.3.2006. The Secretary was also directed to notify the rank list of 17 candidates in the Notice Board of the Board Office. It was also resolved that the rank list will be valid for a period of three years from 23.1.2007. The rank list of candidates for appointment to the post of Driver Grade - II annexed to the resolution contains names of 17 persons including the names of the petitioners. This rank list is produced as Ext.P5 in this writ petition. By Ext.P6 letter of the Secretary, Travancore Devaswom Board, he forwarded a rank list of the candidates to the Chief Engineer (General) and requested the latter to appoint the persons mentioned in the rank list in the existing and arising vacancies as directed by the Board. All that remains was to issue orders of appointment WP(C) 12965 OF 2007 :5:
by the Chief Engineer. Though the petitioners were ranked as 1,3, 4, 6 and 10 respectively in the rank list published and in spite of the fact that vacancies were available, appointment orders, however, were not issued which, as stated earlier, necessitated the filing of this writ petition for appropriate orders and for reliefs as sought for.
3. Incidentally, it may be noticed that Ext.P1 notification issued by the Travancore Devaswom Board, inviting application for the post of Light Vehicle Driver Grade
- II contains the procedure for selection. The process of selection, as notified, includes a written test, practical test and interview or any one of these. By Ext.P2 resolution of the Board dated 12.9.2005, the Board resolved that pursuant to the notification issued, 2767 applications were received of which 2371 were seen valid and in view of the large number of applications received and for the sake of conducting selection process and the appointment with maximum eligibility, suitability and transparency, the Board WP(C) 12965 OF 2007 :6:
resolved to conduct practical test for short-listing the applicants for interview. It was in these circumstances, that a selection committee was constituted who conducted the practical test and submitted a rank list containing 91 candidates before the Board. Even though the Board is entitled to adopt any one method for the purpose of selection as notified, the Board having decided to complete the process of selection both by conducting a written test as well as an interview, normally, in the absence of any reason, one would have expected the Board to proceed to conduct an interview. But in this case, the short list containing the names of 91 candidates was approved and 17 of them were directed to be appointed. So however, no interview as such was conducted.
4. In the counter affidavit filed by the Secretary of the Travancore Devaswom Board, it is stated as follows: After issuance of Ext.P6 requesting the Chief Engineer to issue necessary appointment orders, appointments have not WP(C) 12965 OF 2007 :7:
been made in view of certain intervening circumstances. Immediately after Ext.P6 dated 25.1.2007, the then existing Board ceased to hold Office on 5.2.2007 as they have completed the stipulated term of two years specified under Section 10 of the Travancore Cochin Hindu Religious Institutions (Amendment) Ordinance Act, 2007 and hence the appointments were not effected and they were deferred for the decision of the new Board. Subsequently, in another writ petition, this Court constituted a three member High Power Commission to enquire into the allegations in respect of certain appointments and the High Power Commission after due enquiry submitted its report on 19.12.2007. The observation contained in page 257 of the said report is extracted as follows:
"5. Appointments. There is every reason to believe there has been wide spread corruption and favoritism and adhocism in the appointments to various posts. This reflects a sorry state of affairs. The High Power Recruitment Board headed by a retired Judge of the WP(C) 12965 OF 2007 :8:
High Court or an Administrator of high efficiency and integrity may be appointed to select the right people for various posts."
The present Board has therefore, decided to cancel all the select lists prepared earlier to various posts by proceeding dated 4.12.2007 and to resort to fresh recruitment. Accordingly, in the case of the select list of Light Motor Vehicle Drivers Grade II also, the Board's decision is not to make appointments from the select list and to resort to fresh recruitment. By virtue of the amendment made to the Travancore Cochin Hindu Religious Institutions Amendment Act, 2007, Section 29A as introduced provides that notwithstanding anything contained in the Act and in the rules or in the bye-laws thereunder relating to recruitment and conditions of services of officers and employees of the Board, all appointments of officers and employees in the Devaswom Administrative Service of the Board for which direct recruitment is resorted to shall be made from a select WP(C) 12965 OF 2007 :9:
list of candidates belonging to Hindu religion furnished by the Public Service Commission. In view of the above said new provision introduced, all appointments after the coming into force of the said amendment have to be done through the Kerala Public Service Commission. The said amendment came into force on 12.4.2007 and hence no fresh appointments could be resorted to except by selection conducted by the Kerala Public Service Commission. Persons who were included in the select list has no right as such to claim appointment. ( Reference is made to the decision of the Apex Court in State of U.P. v. Rajkumar Sharma (2006 (3) SCC 300) as also the decisions in Haryana v. Subash Chander (1974 (3) SCC 220), Mai Subrat Jain v. Haryana (1977 (1) SCC 486), PSEB v. Malkiat Singh (2005(9) SCC 22), Union of India v. Vinodh Kumar (2007 (8) SCC 100)). In view of the fact that the Board has decided to cancel the list to various posts prepared and published earlier including the select list WP(C) 12965 OF 2007 :10:
for the post of Light Motor Vehicle Driver Grade II, the select list published earlier stands cancelled and the Board is resorting to fresh recruitment. There are 28 sanctioned permanent posts of LMV Driver Grade II under the Board. Of these, 20 posts have regular and permanent posts and 8 posts are lying vacant. In those vacant posts, employees like watchers, kazhakam etc. who are qualified to be Light Motor vehicle Driver Grade II are deputed to work as drivers on duty basis and so far no person is appointed from the open market on temporary basis to the sanctioned posts. The writ petition is liable to be dismissed.
5. In the reply affidavit filed by the petitioners, it is stated that the reasons stated for cancellation of the select list for Light Motor Vehicle Drivers Grade - II is wrong and the decision to cancel the rank list is arbitrary. According to the petitioners, the allegations made in WP(C) 22384/2006 were with regard to the appointment made to the post of Assistant Engineer, Overseer, Smith, Storekeepers, Typist WP(C) 12965 OF 2007 :11:
etc. and no allegation of any sort was made against the Post of Light Motor Vehicle Driver - Grade- II and hence these posts stood outside the enquiry conducted by the High Power Commission. Though the High Power Commission conducted enquiry regarding the appointment to various posts, adverse remarks were observed only in respect of the select list of Santhies, Panchavadyam Artists, Watcher and Kazhakam. Each of the allegations against the particular post and the observation of the Commission has also been highlighted. According to them, Ext.P5 select list of Light Motor Vehicle Driver Grade-II is not a subject matter of the enquiry conducted by the High Power Commission. Therefore, any reference or observation made in the report of the high Power Commission can not be related to the post in question and hence no reliance on such observation could be made nor is there any justification for cancelling the select list made to the post of Light Motor Vehicle Driver Grade - II. It is also contended WP(C) 12965 OF 2007 :12:
that though a candidate in the select list has no indefeasible right to be appointed, the duly selected candidates could not be denied appointment on the pretext that the term of the panel had expired and the post had been filled by some one else is not a ground to deny appointment to selected candidate. Reliance is also placed on the decision of the Apex Court in Purushotham vs. Chairman, KSEB & another (1999)6 SCC 49). It is also contended that the decision not to fill up the vacancies has to be taken bona fide and must pass the test of reasonableness so as not to fail on the touch stone of Article 14 of the Constitution of India. Reliance is made to the decision of the Apex Court in Food Corporation of India & Others v. Bhanu Lodh & Others ((2005) 3 SCC 618). According to them, the cancellation of Ext.P5 rank list and the selection process without assigning any valid reason is, therefore, arbitrary and liable to be set aside. According to the petitioners, despite the interim direction passed by this WP(C) 12965 OF 2007 :13:
Court, not to fill the post on any temporary basis, respondents are resorting to fill up the posts by appointing low paid Temple employees without resorting to the process of direct recruitment. According to them, the post of driver is one which can be filled up by direct recruitment as per the rules framed by the Travancore Devaswom Board under sub section (2) of Section 29 and Clause (2) of sub section (2) of Section 35 of the TCHRI Act. Subsequently, petitioners have produced Exts.P8 and P9 by filing I.A. 1299/2009. Ext.P8 is a true copy of the proceeding of the Travancore Devaswom Board dated 22.1.2009 and Ext.P9 is the true copy of the order issued by the Administrative Officer, Bus Operations, Trivandrum, dated 23.1.2009. In the supporting affidavit, it is averred that without adhering to the order passed by this Court, the respondents have promoted bus cleaners as drivers and five bus cleaners so promoted were appointed to the available vacancies of drivers in the service of the Devaswom Board by Ext. P8 WP(C) 12965 OF 2007 :14:
order, considering the representation submitted by them for category change/ promotion to the post of LMV. Drivers. From Ext.P8 it can be seen that the above said promotions are purely provisional and subject to the disposal of the present case. Ext.P9 is an office order effecting transfer and promotion. Though the petitioners sought to issue an interim stay of disbursement of salary to the drivers so appointed, no orders were passed by this Court granting any such relief.
6. In the additional counter affidavit filed for and on behalf of the Travancore Devaswom Board, it is contended that as per rule 9 of the Rules relating to appointment under the Board as amended in 1987, the validity of the rank list is only for a period of one year from its publication and there is no provision for extension of the period of validity of the rank list and therefore, the extended period of validity provided in the rank list for a period of three years have no legs to stand. According to WP(C) 12965 OF 2007 :15:
them, the list has expired on 23.1.2008. They developed a contention based on Section 29A of the TCHRI (Amendment) Act, 2007, that with effect from 1.7.2008, the date on which the said amendment has come into force along with the passing of the Kerala Public Service Commission (Additional Functions as respects Administrative Services under Devaswom Boards Act) 2008 (Act 19/2008) and by virtue of Section 1(2) of the P.S.C. Additional Functions Act, the Government has appointed the date viz,, 1.7.2008 as the date on which the said Act shall come into force. Thus the legislative intention is amply made clear that with effect from 12.4.2007 the date on which the amendment to Section 29 came into force, the appointment has to be made by selection through the Public Service Commission. Being a policy decision to be taken by the Board as to whether the existing vacancies could be filled from the earlier select list or through a new method of selection and the Board having decided to make WP(C) 12965 OF 2007 :16:
appointments to all the existing vacancies in various posts through the process of Public Service Commission there is no illegality or arbitrariness in the decision so taken. The respondents produced Ext.R1(a) along with I.A. 3844/2009 which is a proceeding of the Board dated 24.11.2008. As per Ext.R1(a) the Board, in its meeting held on 24.11.2008, has taken a decision that all the existing vacancies in the various administrative posts in the service of the Board be made through selection by the Kerala Public Service Commission.
7. On the basis of the pleadings in the case, we find that the following facts are beyond dispute.
Applications were invited for appointment to the post of LMV Driver - Grade - II by Ext.P1 dated 23.6.2005 to the existing vacancies as also to the vacancies that may arise within a year from the date of publication of the rank list. Pursuant to Ext.P1, selection process was done, a rank list was prepared and accepted by the Board and even directed the Head of the Department to issue orders of appointment to 17 candidates including the petitioners. The process of selection was thus completed;
but appointment orders were not actually issued. The
WP(C) 12965 OF 2007 :17:
change in law brought out by introducing Section 29A as per the amendment made to the TCHRI Act was much later.
8. Now the question that arises for consideration is as to whether the decision of the Board not to proceed with any appointment to the post of LMV Driver - Grade II based on the previous selection until a fresh recruitment is done through the public Service Commission as per the amended provision for the reasons stated in the earlier affidavit can be said to be arbitrary and illegal and what is the effect of the amendment brought out by introducing Section 29A to the TCHRI Act with effect from 12.4.2007. Though there is no express or implied retrospective effect to the above provision, what will be the legal effect on the existing select list ? Whether the amendment brought out with effect from 12.4.2007 will have any effect on the selection already made.
9. According to the learned counsel appearing for the petitioner, the selection process and the ranked list published to fill up the vacancies of LMV Drivers Grade II were not at all the subject matter of enquiry before the High Power Commission. This Court has constituted the High Power Commission for conducting an enquiry in respect of the allegations made by the WP(C) 12965 OF 2007 :18:
petitioners in the writ petition, W.P.(C) No.2384 of 2006 against the President, Members of the Board and the Devaswom Commissioner. The specific allegation in the writ petition was against the appointment to the post of Assistant Engineers (Civil and Electrical), Overseers, Store Keepers etc. No allegation, what so ever, was raised against the filling up of the vacancies of LMV Drivers Grade II. So, the reason to cancel Ext.P5 ranked list based on the general observation of the High Power Commission is not valid in law.
10. On the other hand, the Board would contend that it decided to cancel all the select list prepared earlier to various posts by its proceedings dated 4.12.2007 and resorted to fresh list. Accordingly, in the case of LMV Drivers Grade II also, the Board's decision is not to make appointments from the select list already prepared and resorted to fresh list for appointment. Thus, it is their case that a policy decision was taken not to proceed with any appointment based on selection conducted by the previous list. According to them, merely because the petitioners are included in the select list, they have no WP(C) 12965 OF 2007 :19:
indefeasible right to claim appointment.
11. The observation of the High Power Commission, as extracted in Para 4 of this judgment, no doubt is a general observation. It is a fact that no specific allegation was raised against the selection of LMV Drivers Grade II in the writ petition filed earlier, which culminated in the appointment of High Power Commission, nor is there any enquiry made specifically with reference to the selection to the post of LMV Drivers Grade II. The learned counsel appearing for the Board was specifically asked to point out as to whether there was any such material before the High Power Commission to draw an inference that the general observation applies to selection made to the post of LMV Drivers Grade II also. But the standing counsel for the Board was not able to place any material with regard to the same. We also asked whether the Board had made any independent enquiry or collected any material, at least after the High Power Commission report was received, before they took a decision to cancel the select list for the post of LMV Drivers Grade II, to which also the answer was negative.
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Therefore, we proceed on the assumption that the general observation made by the High Power Commission do not however apply to the selection made to the post of LMV Drivers Grade II, nor is there any other material before the Board to hold that there was any such allegation of corruption in the matter of selection to the post of LMV Drivers Grade II. Therefore, if the cancellation of the select list was solely based on the general observation of the High Power Commission, as pointed out in the counter affidavit, then possibly this Court would have held that in the absence of any such materials to warrant a conclusion that there was any widespread allegation of corruption to the post of LMV Drivers Grade II, the decision to cancel the selection may not be justified. At the same time, it is settled position that a candidate included in the merit list has no indefeasible right to appointment, even if the vacancy exists.
12. In Shankarsan Dash v. Union of India (1991(3) SCC 47) a Constitutional Bench of the Apex Court held that candidate included in merit list has no indefeasible right to appointment even if a vacancy exists. But State while filling up WP(C) 12965 OF 2007 :21:
the vacancies has to act bona fide and not arbitrarily. The Apex Court also held that adoption of different policy for filling different vacancies is not arbitrary in view of the special circumstances explained by the State. Even if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidate do not acquire any indefeasible right to be appointed against the existing vacancies. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. From the materials produced in that case, the Apex Court found that WP(C) 12965 OF 2007 :22:
there has not be any arbitrariness on the part of the respondents in filling up the vacancies in question or other vacancies.
13. In Union of India v. Rajesh P.U.(2003 (7) SCC 285) the Apex Court considered whether cancellation of a selection in its entirety by a competent authority, in the absence of any specific or categorical finding of widespread infirmities of all pervasive nature undermining the selection process was a unreasonable decision. It was held that the competent authority misdirected itself in taking such an extreme and unreasonable decision and the selection of untainted candidates were not justified. That was a case of filling up of 134 posts of Constables by CBI. The process of selection consists of a written examination and interview followed by a physical fitness test. However, the selected candidates were informed that the select list has been cancelled by the Special Committee constituted to enquire into the allegations of favouritism and nepotism on the part of the officers in conducting the Physical Efficiency Test and irregularities committed during written examination. The candidates who were duly selected approached the CAT, but were WP(C) 12965 OF 2007 :23:
unsuccessful. They filed writ petitioner before the High Court, and a Division Bench of High Court after perusal of the Committee's report and review of the entire process categorically rejected allegations of nepotism and favouritism and came to the conclusion that there was no justification to cancel the entire selection when the impact of irregularities which crept into evaluation on merit could not be identified specifically and was found on a reconsideration of the entire records to have resulted in about 31 specific number of candidates being selected undeservedly to the detriment of similar such number of candidates. It rejected the plea that a person in the select list has no vested right to get appointed and found that the cancellation of entire selection was arbitrary and unreasonable. Challenging the said decision, the Union has filed an appeal before the Apex Court. Dismissing the appeal, the Apex Court held as follows:
"Considering the contentions on either side in the light of the materials brought on the record, including the report of the Special Committee there appears to be no scope for any legitimate grievance against the decision WP(C) 12965 OF 2007 :24:
rendered by the High Court. There seems to be no serious grievance of any malpractices as such in the process of the written examination
- either by the candidates or by those who actually conducted them. The Special Committee had extensively scrutinized and reviewed the situation by re-evaluating the answer sheets of all candidates and ultimately found that except 31 candidates found to have been declared successfully though they were not really entitled to be so declared successful and selected for appointment, there was no infirmity whatsoever in the selection of the other successful candidates. In the light of the above and in the absence of any specific or categorical finding supported by any concrete and relevant material that widespread infirmities of an all-pervasive nature, which could be really said to have undermined the very process itself in its entirety or as a whole and it was impossible to weed out the beneficiaries of one or the other irregularities, or illegalities, if any, there was hardly any justification in law to deny appointment to the other selected candidates whose selections were not found to be, in any manner, vitiated for any one or the other reasons. Applying a unilaterally rigid and arbitrary standard to cancel the entirety of the selections is nothing but total disregard of relevancies, giving a complete go-by to contextual considerations throwing to the winds of the principle of proportionality in going farther than what was strictly and reasonably to meet the situation. In short, the competent authority completely misdirected itself in taking such an extreme and unreasonable decision of cancelling the entire selections, wholly unwarranted and WP(C) 12965 OF 2007 :25:
unnecessary even on the factual situation found too, and totally in excess of the nature and gravity of what was at stake, thereby virtually rendering such decision to be irrational."
14. In Food Corporation of India & Others v.
Bhanu Lodh & Others ((2005) 3 SCC 618) it was held that merely because vacancies are notified, State is not obliged to fill up all the vacancies unless there is some provision to the contrary in the applicable rules. The decision to fill up or not to fill up the vacancies is a policy decision and unless it is infected with the vice of arbitrariness, there is no scope for interference in judicial review. Hence the decision not to fill up the vacancies has to be bona fide so as not to fail on the touchstone of Article 14 of the Constitution. Similarly, if the vacancies are proposed to be filled up, then State is obliged to fill them in accordance with merit from the list of the selected candidates.
15. In Purushottam v. Chairman, M.S.E.B. & Another (1999 (6) SCC 49) it was held that duly selected candidate should not be denied appointment on the pretext that WP(C) 12965 OF 2007 :26:
panel and posts had been filled up by someone else. In that case, appellant was selected against the post reserved for scheduled tribe candidate. Though the Board doubted his status as a scheduled caste, High Court held that he belongs to Scheduled tribe. Despite that finding by the High Court, the appointment was not given to the appellant, and therefore, he again approached the High Court. But the respondent Board persuaded the High Court to accept that appointment could not be given to respondent because someone else had already been appointed and therefore there was no vacancy, and that term of the panel had already expired. The Apex Court however held that appellant's right to be appointed against the post for which he had been selected could not be denied. It was further held that usurpation of post by someone else was not on account of appellant's fault but on account of the Board's own erroneous decision.
16. In the factual background of the present case and in view of the decision of the Apex Court in Union of India v. Rajesh P.U.'s case, supra, it has to be held that in the WP(C) 12965 OF 2007 :27:
absence of any specific or or categorical finding of widespread infirmities in respect of selection of LMV Drivers Grade II, there is hardly any justification for cancellation of the entire select list on that ground alone.
17. Another reason pointed out by the Board for not to appoint the candidates selected is because of the subsequent change in the Laws made by the Amendment of Travancore Cochin Hindu Religious Institutions Act in 2007, incorporating Section 29A. Section 29A of the said Act is inserted by Act 5 of 2007 which reads as follows:-
"29A. Appointment to be made through Kerala Public Service Commission:-
Notwithstanding anything contained in this Act or in the rules or the byelaws made thereunder relating to the recruitment and conditions of service of officers and employees of the Board, all appointments of officers and employees in the Devaswom Administrative Service of the Board for which direct recruitment is resorted to, shall be made from a select list of candidates belonging to Hindu religion furnished by the Kerala Public Service Commission, in accordance with the law made for the exercise of this additional function by the Kerala Public Service Commission. A Hindu member/members of the Public Service Commission may discharge the function of WP(C) 12965 OF 2007 :28:
conducting interview in the process of selection of candidates for appointments."
18. Section 29A was introduced by Section 13 of the Amending Act and all the sections of the Act, except Sections 13 and 31, are deemed to have come into force on 5th February, 2007. Therefore, the legislature in its wisdom has given retrospective effect to certain provisions, but conspicuously did not extend the retrospectivity to Section 13 of the Amending Act, thereby, by an express intendment, Section 29A the enforcement of which was left to the Government (Section 13 of the Amending Act was to come into force on such date as the Government make notification in the Gazette) and the Government notification enforcing Section 29A was only with effect from 1.7.2008. Therefore, by no stretch of imagination, it can be said that 29A of the Act has any retrospective effect. In this connection, we may refer to R.P.No.804/2008 in W.P.(C) No.27575 of 2006, wherein a Co-ordinate Bench of this Court held as follows:-
WP(C) 12965 OF 2007 :29:
"The amendment has come into force
only from 1.7.2008. Merely because an
amendment has come into force, it does not mean that the respondents can not comply with the interim orders and directions passed by this Court. Further the provisions of Section 29A of the Act is only prospective in nature. An amendment to the Act by incorporating Section 29A of the Act was introduced only on 5.2.2007 i.e., much later to the orders passed by this Court. In fact, Section 29A of the Act has come into force only on 1.7.2008. Therefore, in our opinion, even this stand of the respondent that merely because Section 29A of the Act that has come into force would not provide that all selections and appointments required to be made only by the Public Service Commission, also cannot come to the aid of the respondent/contemnor......."
Thus, it has to be found that Section 29A has no retrospective operation.
19. Then the next question is though the provision as such may not be retrospective, whether the appointing authority could take a policy decision not to proceed to make appointments based on an earlier selection, in view of the change of the policy made by the amendment as introduced by Section 29A. In this context, we have to bear in mind that the observation of the High Power Commission, though not strictly WP(C) 12965 OF 2007 :30:
apply to the present selection, is no doubt an indication of the prevailing circumstances which led the Government to entrust the selection to an independent constitutional body like the PSC and when appointments have not been effected and law has come into force, the Board had the option to decide either way ie. either to make the appointment, if they so chose, as the Section is not retrospective in character or to fall in line with the change in policy brought out by the amendment. So if the Board decides on its wisdom to wait for a fresh selection to be made by the constitutional body and if they decided not to make the appointment based on previous selection, it cannot be characterised as an arbitrary decision. This Court is not an appellate authority and this Court cannot substitute its decision as that of the appointing authority, unless it is arbitrary in character. In the overall circumstances, taking note of the fact that hereafter appointments have to be made based on selection by the PSC, and if the Board decided not to make appointments based on the previous selection, rather wait for selection to be conducted in accordance with the amended provision, it cannot be WP(C) 12965 OF 2007 :31:
said to be an irrational decision. Further, there is no allegation as such of any mala fide action on the part of the Board in cancelling the selection. It is not also the case of the petitioners that a few were appointed from the select list and it is with a view to exclude the rest that such a decision was taken. As a matter of fact, in the counter affidavit, it is stated that all appointments are deferred to be made only after the selection to be made by the PSC in accordance with the amended provision. Therefore, not only in the case of LMV Drivers Grade II post but also in other posts, the decision was uniform, and hence, the policy decision taken cannot be said to be arbitrary or actuated by any mala fides.
20. In this context, we may refer to a few decisions of the Apex Court. In State of A.P. and others v. D.Dastagiri and others (2003 (5) SCC 373), it was held that even if selection process is complete except selection list remaining to be published, when by virtue of change in government policy recruitment process is cancelled, selected candidates do not get any vested right to claim appointment. Since Government is WP(C) 12965 OF 2007 :32:
entitled to take a policy decision, consequent non appointment cannot be termed to be arbitrary.
21. In State of Orissa and others v. Bhikari Charan Khuntia and others (2003 (10) SCC 144), it was held by the Apex Court that court cannot interfere with the policy decision of Government for recruitment, unless it is arbitrary.
22. In State of M.P. And others v. Raghuveer Singh Yadav and others (1994 (6) SCC 151), it was held that the Government is entitled to conduct selection according to the changed rules and make final recruitment.
23. The above discussion leads us to the only conclusion that though by force of law, the selection process is not invalidated, the decision not to make appointment based on a previous selection, after the change of law has been brought into force, being a policy decision, cannot be interfered with unless it is arbitrary. When the Government thought of changing the manner of selection by enabling it to an independent WP(C) 12965 OF 2007 :33:
constitutional body and such changes are brought out by the law laid down by the legislature and thus there is a clear cut change in the policy effected, one cannot find fault with the appointing authority - the Board, if they thought it better on the side of caution by not making appointments from the earlier select list, one cannot indeed find the action as arbitrary or irrational.
24. Incidentally, it may be pointed out that as per the decision of the Board the process of selection included a written test and an interview. But no interview is ever conducted. The 17 persons included in the rank list are from the list of 91 persons submitted by the selection committee based on written test and practical test. Ext.P2 decision of the Board is to constitute a selection committee for conducting practical test and to furnish a short list to the Board so as to enable the Board to conduct the interview for preparation of select list. This decision was not carried out by conducting an interview by the Board.
25. Though it is contended by the respondents that the period of the list expired after one year, the validity of the list WP(C) 12965 OF 2007 :34:
is decided by the Board and in this case, the Board itself has made the list valid for a period of three years, as per its decision dated 23.1.2007, Ext.P4 produced in this case, as per which, the list will be valid for a period of three years from 23.1.2007. Therefore, the respondents' contention in this regard is rejected.
In the result, we find that the petitioners could not make out a case that the decision not to appoint them because of the cancellation of the select list is arbitrary or illegal. Hence, the writ petitions are dismissed. In such circumstances of the case, there will be no order as to costs.
P.R. RAMAN, JUDGE.
KNC/-
P.S. GOPINATHAN, JUDGE.