Kerala High Court
Kunju Kunju vs State Of Kerala on 16 September, 2004
Equivalent citations: 2005(1)KLT364
Author: P.R. Raman
Bench: P.R. Raman
JUDGMENT N.K. Sodhi, C.J.
1. O. P. Nos. 30458 and 34803 of 2001, 8725 and 34586 of 2002 and W.A. Nos. 256 and 277 of 2002 can be conveniently disposed of together as common questions of law and fact arise in them and they all pertain to the selection of Industries Extension Officers in the Department of Industries and Commerce.
2. Recruitment to the posts of Industries Extension Officers was not governed by any statutory rules. The State Government by its order dated August 23, 1962 (hereinafter referred to as 'the G.O.') in consultation with the Kerala Public Service Commission (for short 'the Commission') prescribed the following method of appointment and qualifications for the said post:
"1. Method of appointment.-(a)By direct recruitment.
(b) By promotion from the Kerala Industries Subordinate Service.
(c) By transfer from the Gram Sevaks in the Development Department.
Note.-
(i) 50 per cent of the vacancies shall be filled up by direct recruitment; 25 per cent by promotion and 25 per cent by transfer.
(ii) Appointment by transfer of Gram Sevaks will also be made by the Public Service Commission on the basis of merit to ensure the best candidates.
(iii) Promotion from the Kerala Industries Subordinate Service will be made by the Director of Industries and Commerce.
2. Qualifications.-(i) For direct recruitment.-
(a) Degree or Diploma in any branch of Engineering; or
(b) Diploma in Rural Services with Village Industries as optional subject awarded by the National Council of Rural Higher Education; or
(c) Degree in Arts, Science, Commerce or Business Management; or
(d) Diploma in Textile Technology; or
(e) Diploma in Food Technology.
(ii) For promotion and transfer.- Same qualification as for direct recruitment but with not less than five years service."
It will, thus, be seen that appointment to the post is made by direct recruitment, by promotion from the Kerala Industries Subordinate Service and also by transfer from the Gram Sevaks in the Development Department and 50 per cent vacancies were meant for the direct recruits and 25 per cent each for the promotees and transferees. The total cadre strength of the Industries Extension Officers is 193 as averred in paragraph 4 in O.P. No. 30458 of 2001 which fact has not been denied by the respondents therein. It may be mentioned that 192 posts out of 193 had been occupied by temporary promotees who had been promoted under Rules 31 of the Kerala State and Subordinate Services Rules, 1958 (for short 'the 1958 Rules'). This Rule provides that where it is necessary in public interest owing to an emergency which had arisen to fill immediately a vacancy in a post and borne on the cadre of a higher category in a service or class by promotion from a lower category and there would be undue delay in making such promotion in accordance with the Rules, the appointing authority may promote a person otherwise than in accordance with the Rules temporarily. It is further provided in the Rule that a person so promoted shall be replaced as soon as possible by the member of the service who is entitled to the promotion under the Rules or by a candidate appointed in accordance with the Rules as the case may be.
3. By notification dated 26th May, 1992, the Commission invited applications for. 33 posts of Industries Extension Officers to be filled up by direct recruitment and for 11 posts to be filled by transfer from Village Extension Officers (previously known as Gram Sevaks). The qualifications prescribed in the notification were the same as prescribed in the G O. Petitioners in O.P. Nos. 34803 of 2001 and 345 86 of 2002 applied in response to the advertisement for posts meant for direct recruits and petitioners in O.P. No. 30458 of 2001 submitted their applications for posts to be filled by transfer. The Commission also made a special recruitment for scheduled tribe candidates and published a notice on 27th October, 199 8 inviting applications for direct recruitment for 7 posts meant for them. The petitioners in O.P. No. 8725 of 2002 who belong to scheduled tribes, applied in response to this notification.
4. A written test was held by the Commission on the basis of which the candidates were short listed. Interviews were notified by the Commission and these were to be held between 26th December, 2000 to 30th December, 2000. Some of the employees who had been temporarily promoted under R.31 of the 1958 Rules filed O.P. No. 34827 of 2000 in this Court challenging the interviews and an interim order was issued by a learned Single Judge on 13th December, 2000 restraining the Commission from conducting the interviews without obtaining further orders from the Court. The stay order was, however, vacated on 5th April, 2001 and the interviews were eventually held in May 2001.
5. Before the Commission could complete the selection process and even before the interviews were held, the State Government, in exercise of its powers under Sub-section (l) of Section 2 of the Kerala Public Services Act, 1968 (hereinafter referred to as 'the Act') framed Rules for recruitment to the Kerala Industries Subordinate Service. These Rules were called the Special Rules for the Kerala Industries Subordinate Service, 2001 (hereinafter called 'the Special Rules'). These Rules were published in the Kerala Gazette on 17th February, 2001 and were deemed to have come into force with effect from July 1, 1983. The Special Rules were framed superseding all the existing Rules and Orders including the G.O. pertaining to the recruitment to the Kerala Industries Subordinate Service. The method of appointment and qualifications for the post of Industries Extension Officer were altered substantially. The method of appointment and the qualifications for the post as prescribed by Rule 3 of the Special Rules are as under:
TABLE Name of category Method of appointment Qualification Industries (i) By Direct Recruitment A Degree in any Extension branch of Officer Engineering
(ii) By promotion from the 1. A Degree in any following categories in branch of Engi-
the order of preference neering with not
1. Senior Co-operative less than 5 years
Inspector(S.G.) service in the
Department;
or
2. Senior Co-operative 2. A degree or Di-
Inspector. ploma in any
Branch of Engi-
3. Development Officer neering or any
(Handicrafts). Branch of Tech-
4. In the absence of nology with not
qualified hands from less than 5 years
Senior Co-operative service in the
Inspector qualified Department.
Junior Co-operative or
Inspector. 3. A Degree in Arts,
Science, Com-
Merce, Social Sci-
ences or Busi-
ness Manage-
ment with not
less than 5 years
service in the
Department.
Note.- 1. Appointment by direct recruitment and promotion shall be made in the ratio 3:7. While filling up the post by promotion the following categories will be considered in the order of preference. 1. Senior Co-operative Inspector (S.G.), 2. Senior Co-operative Inspector, 3. Development Officer (Handicrafts), 4. Junior Co-operative Inspector.
A perusal of the aforesaid Table would show that there are two methods of appointment, one by direct recruitment and the other by promotion. The Special Rules do not permit appointment to the post by transfer which could earlier be made in terms of the G.O. It will also be seen that for direct recruitment, the qualification prescribed is a Degree in any branch of Engineering whereas under the G.O., five alternative qualifications had been prescribed including Diplomas in Engineering and other subjects/disciplines. Qualifications for promotion to the post have also been changed and so also the ratio in which the appointments are to be made. Under the G.O. the appointments could be made by direct recruitment, by promotion and by transfer in the ratio of 50:25:25 whereas under the Special Rules, appointments could be made only by direct recruitment and promotion in the ratio of 3:7.
6. After the promulgation of the Special Rules in February 2001, the Commission interviewed the candidates who had applied for the post by way of direct recruitment and also by way of transfer. As already observed, these interviews were held in May 2001 and the selection process which was started on 26th May, 1992 was completed only on 24th August, 2001 when two rank lists were notified by the Commission. List I was in regard to direct recruits and List II pertained to recruitment by transfer from Village Extension Officers. There was yet another list which came into force with effect from 28th August, 2001 and it pertained to the special recruitment made only for candidates belonging to Scheduled Tribes. The names of the two petitioners in O.P. No. 34586 of 2002 appear at Sl. Nos. 21 and 24 of List I and the sole petitioner in O.P. No. 34803 of 2001 figures at Sl. No. 10 in the list. The five petitioners in O.P. No. 30458 of 2001 figure in List II at Sl. Nos. 6,10,17,33 and 47. The two petitioners in O.P. No. 8725 of 2002 who belong to Scheduled Tribes figure at Sl. Nos. 7 and 6 of the separate list. Some of the employees who had been temporarily promoted to the post of Industries Extension Officer filed O. P. Nos. 18047 and 38589 of 2001 for a mandamus directing the Commission not to proceed with the selection process which commenced in pursuance to the notifications dated 26th May, 1992 and 27th October, 1998 since Special Rules had been promulgated and the method of appointment and qualifications for the post had substantially changed. These two Writ Petitions came up for hearing before two Single Benches and were dismissed holding that the petitioners therein were provisional appointees under Rule 31 of the 1958 Rules and had no enforceable right to insist that they should be permitted to continue. Since the persons whose names appeared in the rank list had not been impleaded, the Writ Petition was dismissed on that ground as well. The petitioners also contended that in view of the Special Rules, the posts were meant for promotees and the Commission could not be allowed to make direct recruitment. This plea was also negatived in O.P. No. 38589 of 2001 and it was held that the process for direct recruitment could not be brought to a halt merely because some other persons had subsequently become eligible for promotion because of the promulgation of the Special Rules with retrospective effect. This petition was also dismissed. The petitioners in these two cases have filed W. A. Nos. 256 and 277 of 2002 which are being disposed of by this order. O.P. Nos. 34803 of 2001 and 8725 and 34586 of 2002 have been filed by those persons, who have been selected by the Commission by way of direct recruitment in pursuance to the notifications issued on 26th May, 1992 and 27th October, 1998 and whose names appear in the rank lists prepared by the Commission. O.P. No. 30458 of 2001 has been filed by the Village Extension Officers who had been selected by the Commission for appointment by transfer to the post of Industries Extension Officer and whose names appear in Rank List II. The appellants in the two Writ Appeals are temporary/provisional promotees under Rule 31 of the 1958 Rules and they want the Special Rules to be enforced and appointments made in accordance therewith. The petitioners in the Writ Petitions, on the other hand, challenge the validity of the Special Rules and want the appointments to be made as per the rank lists prepared by the Commission in accordance with the G.O. We are called upon to decide as to which of the two stands is correct.
7. Mr. Thottathil Radhakrishnan, learned Counsel appearing for the petitioners in O.P. No. 34586 of 2002, strenuously contended that the Special Rules are invalid as they were not laid as soon as may be after they were made before the Legislative Assembly while it was in session and therefore these would have no effect. According to the learned Counsel, the provisions of Sub-section (2) of Section 2 of the Act stood violated. Mr. Sudhakara Prasad, learned Counsel appearing for the petitioners in O.P. No. 30458 of 2001, emphatically urged that since the selection process had commenced on 26th May, 1992 when the Commission invited applications and prescribed the method of appointment and the qualifications for the post of Industries Extension Officer, the petitioners had a right to be considered for selection in accordance with the method and qualifications so prescribed and such a right could not be taken away by the Special Rules retrospectively. His argument is that such a right had vested in the petitioners and the Special Rules which have taken away such a right are invalid, arbitrary and unconstitutional. The grievance of the petitioners is that they were eligible for being considered for appointment in terms of the notification issued by the Commission but the Special Rules by operating retrospectively had made them ineligible by altering the method of appointment and also the qualifications for the post. It is also contended by Sri. Sudhakara Prasad that the petitioners are working as Village Extension Officers (previously known as Gram Sevaks) and when they were seeking appointment by transfer to the post of Industries Extension Officer which is a higher post with a higher scale of pay, they were, in fact, seeking appointment by promotion and that this right of theirs to be considered for promotion is a vested right which could not be taken away by the Special Rules operating retrospectively. He placed reliance on the judgment of the Apex Court in T.R. Kapur and Ors. v. State of Haryana and Ors. (AIR 1987 SC 415). The argument indeed is that a right to be considered for promotion is a fundamental right which could not be taken away. He also relied on the Judgment of the Apex Court in Chairman, Railway Board and Ors. v. C. R. Rangadhamaiah and Ors. ((1997) 6 SCC 623) and also in Ajit Singh and Ors. (II) v. State of Punjab and Ors. ((1999)7 SCC 209). Another argument advanced by the learned Counsel for the petitioners is that the Special Rules even though promulgated in February, 2001 were made operative with effect from 1st July, 1983 and in view of the length of time covered by the retrospective operation, the Special Rules are arbitrary. He also argued that if this Court had not restrained the Commission from conducting the interviews, the rank lists would have been prepared earlier to the promulgation of the Special Rules and that the persons named in the rank lists like the petitioners would have been appointed. The contention is that no party should be allowed to be prejudiced by the acts of the Court and, therefore, the respondents should be directed to make appointments in accordance with the rank lists prepared by the Commission. He cited the decisions in Devidayal Rolling Mills v. Prakash Chiman Lal Parikh and Ors. (AIR 1993 SC 1982) and State of M.P. and Ors. v. M.V. Vyavasaya and Co. ((1997) 1 SCC 156) in support of his contention.
8. We shall first deal with the contentions raised by Mr. Sudhakara Prasad, learned Counsel for some of the writ petitioners. It is argued that since the selection process commenced in the year 1992 when the Commission invited applications for direct recruitment, the same had to be completed as per the Rules which then existed notwithstanding the promulgation of the Special Rules in February, 2001 with retrospective effect. This argument, as advanced, cannot be accepted.
9. Y.V. Rangaiah and Ors. v. State of Andhra Pradesh and Anr. (AIR 1983 SC 852), was a case pertaining to the appointments to the posts of Sub Registrars Grade II. As per the Rules which were prevalent on the date when the posts fell vacant, Lower Division Clerks in the Department were entitled to be promoted for which purposes the Government was required to prepare a panel in September each year. The panel which was due in September, 1976 was not prepared till 1977 by which time the Rules were amended whereby the Rule providing for consideration of Lower Division Clerks for appointment as Special Registrars Grade II was done away with and promotion or transfer to that category was to be made from amongst the Upper Division Clerks employed in the Department. The amendment was made prospectively. The action of the Department in filling up the posts as per the amended Rules was challenged and Their Lordships accepted the plea of the petitioner therein and observed as under:
"The vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules..................................... But the question is of filling the vacancies that occurred prior to the amended rules. We have not the slightest doubt that the posts which fell vacant prior to the amended rules would be governed by the old rules and not by the new rules."
In A.A. Calton v. Director of Education (AIR 1983 SC 1143), the dispute pertained to the appointment of a Principal of an Intermediate College belonging to a minority institution. Under Section 16F(4) of the U.P. Intermediate Education Act, 1921, the power to appoint a Principal vested in the Director if the recommendation made under Sub-section (2) had been disapproved twice. This provision was amended with effect from August 18,1975 taking away the power of the Director to make the appointment in the case of a minority Institution. The selection process commenced in the year 1973 and even though the appointment was made after the amendment in 1975, it was made by the Director under the unamended law. This was challenged before the Allahabad High Court which dismissed the petition. In appeal, the Order of the Director was upheld and it was observed as under:
"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 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 Section 16F of the Act. Nor do we find any words in it which by necessary intendment would affect such pending proceedings.................................... 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............................................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."
In this case also, the amendment was prospective and did not affect the pending proceedings. Had the amendment been made retrospectively, the decision would have been different.
10. In P. Mahendran and Ors. v. State of Karnataka and Anr. (AIR 1983 S.C. 1143), the Rules were amended prospectively after the selection process had commenced and it was held that the selection process had to be completed in accordance with the Rules as they stood at the time of its commencement. Their Lordships followed their earlier decision in Calton's case (supra) and observed as under:
"It is true that a candidate does not get any right to the post by merely making an application for the same. But a right is created in his favour for being considered for the post in accordance with the terms and conditions of the advertisement and the existing recruitment rules. 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."
Here again, Their Lordships had made it clear that a selection process which once commences shall have to be completed in accordance with the Rules as they existed at the time of its commencement and the right of a person to be considered for appointment could not be affected by any subsequent amendment to the Rules unless the amendment is made retrospectively. In other words, if an amendment is made in the recruitment rules retrospectively, then the appointment shall have to be made in terms of the amended Rules.
11. Again, in N.T. Devin Katti and Ors. v. Karnataka Public Service Commission ((1990) 3 SCC 157), Their Lordships reiterated the aforesaid proposition of law and Justice K.N. Singh (as His Lordship then was) speaking for the Bench observed as under:
"Lest there be any confusion, we would like to make it clear that a candidate on making application for a post pursuant to an advertisement does not acquire any vested right of selection, but if he is eligible and is otherwise qualified in accordance with the relevant rules and the terms contained in the advertisement, he does acquire a vested right of being considered for selection in accordance with the rules as they existed on the date of advertisement. He cannot be deprived of that limited right on the amendment of rules during the pendency of selection unless the amended rules are retrospective in nature." (underlining is ours) Referring to the earlier decisions, Justice K.N. Singh observed in paragraph 13 of the Judgment as under:
"It is well accepted principle of construction that a statutory rule or Government Order is prospective in nature unless it is expressly or by necessary implication made to have retrospective effect. Where proceedings are initiated for selection by issuing advertisement, the selection should normally be regulated by the then existing rules and Government Orders and any amendment of the rules or the Government Order pending the selection should not affect the validity of the selection made by the Selecting Authority or the Public Service Commission unless the amended Rules or the amended Government Orders issued in exercise of its statutory power either by express provision or by necessary intendment indicate that amended Rules shall be applicable to the pending selections. See P. Mahendran v. State of Karnataka ((1990) 1 SCC 411).
It is, thus, clear that a person who applies for appointment to a post in response to an advertisement does not acquire any right much less a vested right to get selected. If he is eligible and is otherwise qualified in accordance with the recruitment rules governing the post and the terms and conditions contained in the advertisement, he gets a right of being considered for selection in accordance with the rules as they existed as the date of advertisement. This limited right cannot be taken away by any authority amending the terms and conditions in the advertisement or by amending the recruitment Rules unless the amendment is made with retrospective effect. The authority which issued the advertisement or which framed the recruitment rules has a right to amend the terms and conditions of appointment to the post and also to amend the recruitment rules but no such amendment shall affect the selection process which had already commenced prior to the amendment unless the amendment is made retrospectively. In other words, if an amendment/is brought about in the recruitment rules with retrospective effect, then the selection to the post shall be governed by the amended rules and no candidate can be heard to say that he has a right to be considered for appointment in terms of the Rules as they stood at the time of the commencement of the selection process. In the case before us, the Special Rules were promulgated in February, 2001 when the selection process had not been completed and it is common case of the parties that these Rules were made operative retrospectively with effect from 1st July, 1983 superseding all the Government Orders governing the field including the G.O. It, therefore, follows that the selection to the posts of Industries Extension Officers had to be made in accordance with the Special Rules and that the commission was in error in selecting the candidates and preparing the rank lists in terms of the G.O.
12. It was then argued by Mr. Sudhakara Prasad, learned Counsel for the petitioners, that the Special Rules which were promulgated on 17th February, 2001 retrospectively with effect from 1st July, 1983 making the petitioners ineligible are arbitrary and violative of Articles 14 and 16 of the Constitution. He places reliance on a Judgment of the Supreme Court in T.R. Kapur and Ors. v. State of Haryana and Ors. (AIR 1987 SC 415), wherein, according to the learned Counsel, a similar amendment made in the rules retrospectively taking away the eligibility of members of Class II Service for purposes of promotion to the posts of Executive Engineers in Class I service from a back date was declared constitutionally invalid. We have given our thoughtful consideration to this contention of the learned Counsel and having carefully gone through the judgment of the Apex Court in T.R. Kapur's case (supra) are unable to accept the same. In T.R. Kapur's case, Rule 6(b) of the Punjab Service of Engineers, Class I/Public Works Department (Irrigation Branch) Rules, 1964 which was amended on June 22,1984 with retrospective effect from 10th July, 1964 whereby the members of Class II Service who were diploma holders were made ineligible for purposes of promotion to the post of Executive Engineers in Class I Service from aback date ranging over 20 years was held to be violative of Articles 14 and 16 of the Constitution because it had the effect of rendering invalid the promotions already made. The submission made by the learned Counsel in T.R. Kapur's case is noticed in paragraph 15 of the judgment in the following words:
"In substance, the submission is that a retrospective amendment of Rule 6(b) by the impugned notification which seeks to take, away the eligibility of menders of Class II Service who are diploma holders for purposes of promotion to the posts of Executive Engineers in Class I Service from aback date ranging over 20 years and (hereby renders invalid the promotions already made; is constitutionally impermissible."
Upholding this contention, Their Lordships observed in paragraph 16 of the Judgment as under:
"Therefore, unless it is specifically provided in the rules, the employees who are already promoted before the amendment of the rules cannot be reverted and their promotions cannot be recalled. In other words, such rules laying down qualifications for promotion made with retrospective effect must necessarily satisfy the test of Articles 14 and 16(1) of the Constitution."
If is, thus, clear that the amendment to Rule 6(b) was declared invalid because the employees who had already been promoted before the amendment were sought to be reverted as they were made ineligible from a back date. This, the Supreme Court said, could not be done, as it would violate the fundamental rights of those who had already been promoted. Such is not the case before us. The petitioners before us had only applied for being appointed either by direct recruitment or by way of transfer from Gram Sevaks in the Development Department and none of them had been appointed who was sought to be reverted or transferred back on the promulgation of the Special Rules. As already observed, the petitioners had a limited right to be considered for appointment to the posts of Industries Extension Officers which could be taken away by promulgating the Special Rules retrospectively and this is precisely what the State Government has done. No fault can, thus, be found with the action of the Government in promulgating the Special Rules with retrospective effect. It is not in dispute that under Section 2(l) of the Act, the State Government has the power to frame service Rules retrospectively as well. It may be mentioned that 192 posts out of 193 in the cadre of Industries Extension Officers have been occupied by the provisional promotees under Rule 31 of the 195 8 Rules and not by any of the petitioners. In this view of the matter, we are clearly of the view that T.R. Kapur's case does-not help the petitioners.
13. It was then argued that even though the petitioners in O. P. No. 30458 of 2001 were seeking appointment to the posts of Industries Extension Officers by way of transfer from Gram Sevaks yet they were seeking appointment to a higher post carrying a higher scale of pay and, therefore, for all intents and purposes they were seeking promotion to the posts of Industries Extension Officers and since their right to be considered for promotion has been taken away by the Special Rules, the said rules violate their fundamental right as observed by the Supreme Court in Ajit Singh and Ors. v. State of Punjab and Ors. ((1999) 7 SCC 209) and Sarabjit Singh v. Ex. Major B.D. Gupta and Ors. ((2000) 7 SCC 67).
14. It is true that their Lordships of the Supreme Court in Ajith Singh's case (supra) and Sarabjit Singh's case (supra) have observed that a right to be considered for promotion is indeed a fundamental right guaranteed under Article 16 of the Constitution but the petitioners, before us are seeking appointment by way of transfer to the posts of Industries Extension Officers and they are not seeking any promotion. They are seeking appointment in terms of the G.O. whereunder 25 per cent of the posts had to be filled up by transfer from Gram Sevaks. This appointment by transfer cannot be equated with appointment by promotion merely because the post to which they were seeking appointment is a higher post because the GO. itself makes a provision for appointment by promotion as well. It may be recalled that 25 per cent of the seats under the G.O. are to be filled by promotion from Kerala Industries Subordinate Service and another 25 per cent by transfer from Gram Sevaks in the Development Department. When the G.O. provides for appointment both by promotion and by transfer, the mode of transfer cannot be equated with that of promotion. The very basis on which the argument is sought to be built is fallacious. We have, therefore, no hesitation in rejecting this contention of the learned Counsel.
15. Mr. Sudhakara Prasad then contended that the Special Rules which have been promulgated with retrospective effect are operative from a back date ranging over more than 17 years and, therefore, they are arbitrary and invalid. We cannot accept this contention either. It is by now well-settled by the final Court that mere length of time covered by retrospective operation is not itself a decisive test to determine the validity of the provision. Therefore, merely because the Special Rules have been made retrospective and go back to cover a period of more than 17 years, will not be a ground to hold that they are invalid unless it can be shown that the retrospectivity violates any fundamental right as was the case in T.R. Kapur's case where the already promoted employees were sought to be reverted after being made ineligible retrospectively. The learned Counsel could not point out any right in the petitioners which could be said to have been violated by retrospective operation of the Special Rules. This contention too is rejected.
16. It was then argued that had this Court not intervened in O.P. No. 34827 of 2000 by restraining the Commission from conducting the interviews, the select lists would have been completed much prior to the promulgation of the Special Rules and the petitioners would have been appointed in terms thereof. The argument of the learned Counsel is that his clients should not be made to suffer because of the act of the Court in granting an interim order which delayed the finalization of the selection process. As already observed, the selection process started in May, 1992 when the Commission issued a notification inviting applications for direct recruitment and also for appointment by transfer. The written test held by the Commission in March, 1995 with a view to short-list candidates. The candidates were short-listed in November, 2000 and the interviews were notified to be held between 26th December, 2000 to 30th December, 2000. It was then that some of the provisional promotees under R.31 of 1958 Rules filed O.P. No. 34827 of 2000 challenging the interviews. Even though an interim order was passed on 13th December, 2000, it was vacated on 5th April, 2001 and the selection process was allowed to continue. The interviews were eventually held in May, 2001 almost three months after the promulgation of the Special Rules. We do not think that the selection process was delayed because of the intervention of this Court. Once the Special Rules were promulgated with retrospective effect and the method of appointment and qualifications for the posts of Industries Extension Officers had been altered, the Commission ought not to have continued with the selection process which had earlier begun on the basis of the G.O. In this view of the matter, we have no hesitation to hold that the rank lists prepared by the Commission were of no consequence in view of the Special Rules and that appointments to the posts of Industries Extension Officers will have to be made in terms of the Special Rules.
17. We may now consider the argument advanced by Mr. Thottathil B. Radhakrishnan, learned Counsel for the petitioners in O.P. No. 34586 of 2002. It is urged that the Special Rules were not laid as soon as may be after they were promulgated before the Legislative Assembly while it was in session for a total period of fourteen days and therefore the provisions of Sub-section (2) of Section 2 of the Act stood violated and therefore the Special Rules are invalid and cannot be acted upon. There is no merit in this contention. Section 2 of the Act enables the Government to make rules either prospectively or retrospectively to regulate the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the State of Kerala. The Special Rules were notified on 17th February, 2001 to regulate the recruitment for the Kerala Industries Subordinate Service. On that day the last session of the Tenth Kerala Legislative Assembly was on. This session commenced on 15th February, 2001 and lasted till 8th March, 2001. The Special Rules were not laid before the Assembly in this session. Fresh elections to the Legislative Assembly were held and the first session of the Eleventh Kerala Legislative Assembly was convened on 5th June, 2001 which continued for some time. The Special Rules were laid on the table of the Assembly on July 2,2001 and it is common case of the parties that the Special Rules were before the Assembly for more than 14 days and that they were neither modified nor annulled. Sub-section (2) of Section 2 of the Act provides as under:
"(2) Every rule made under this section shall be laid as soon as may be after it is made before the Legislative Assembly while it is in session for a total period of fourteen days which may be comprised in one session or in two successive sessions, and if before the expiry of the session in which it is so laid or the session immediately following, the Legislative Assembly agrees that the rule should be either modified or annulled, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so however that any such modification or annulment shall be without prejudice to the validity of any thing previously done under that rule."
It is not uncommon that the Legislature makes such a provision requiring the rule making authority to lay before it the rules framed under the Act. The object of such a provision is to keep supervision and control over the rule making authority. The extent of control which the Legislature wishes to exercise will depend upon the language used in the statutory provision. It may require the rule making authority to simply place before it the rules framed under the Act or it may or may not require that the rules would be subject to its approval. The Legislature may also provide that it will have the power to modify or annul the rules if it so likes or it may like to exercise its control in such other manner as it may deem proper. It is equally open to the Legislature to provide as to what would be the effect if the rules are not laid before it. If no provision is made in this regard it would follow that the Legislature never intended that non-compliance with the requirement of laying rules before it should render them illegal or void. The language used in each statutory provision will show the extent of control and supervision which the Legislature wishes to exercise. In the case before us Sub-section (2) of Section 2 of the Act merely requires the rules to be laid as soon as may be after they are made before the Legislative Assembly while it is in session for a total period of 14 days and the Legislature has kept with it the power to modify or annul the rules so made making it clear that anything done under the original rules prior to their modification or annulment shall be valid. It is thus clear that the validity of the rules does not depend upon their being laid on the table of the Legislative Assembly because the section does not provide that the Special Rules will be valid only if they are laid before the Legislative Assembly. Of course, the Legislative Assembly could modify or annul them and in that event the modified rules would have effect or they would have no effect in case they were annulled and even if they had been modified or annulled any action taken under the original rules has been protected and the same would be valid notwithstanding the modification or annulment of the Special Rules. Since the Special Rules were neither modified nor annulled by the Legislative Assembly they were valid as originally laid before it. As there is no provision in Sub-section (2) of Section 2 of the Act as to what would be the effect if the rules are not laid before the State Legislature, we are clearly of the view that the Legislature did not intend that the rules would be invalid if they were not laid before it. In this view of the matter the provisions of Sub-section (2) of Section 2 of the Act have to be held to be only directory and not mandatory and, therefore, even if the Special Rules had not been laid before the Legislative Assembly they would be valid. The view that we have taken finds support from the observations of the Supreme Court in Jan Mohammad Noor Moohamad Bagban v. The State of Gujarat and Anr. (AIR 1966 SC 3 85), where their Lordships in similar circumstances made the following observations:
"Section 26(5) of Bombay Act 22 of 1939 does not prescribe that the rules acquired validity only from the date on which they were placed before the Houses of Legislature. The rules are valid from the date on which they are made under Section 26( 1). It is true that the Legislature has prescribed that the rules shall be placed before the Houses of Legislature, but failure to place the rules before the Houses of Legislature does not affect the validity of the rules, merely because they have not been placed before the Houses of the Legislature. Granting that the provisions of Sub-section (5) of Section 26 by reason of the failure to place the rules before the Houses of Legislature were violated we are of the view that Sub-section (5) of Section 26 having regard to the purposes of which it is made, and in the context in which it occurs, cannot be regarded as mandatory."
Again, in M/s Atlas Cycle Industries Ltd. and Ors. v. State of Haryana (AIR 1979 SC 1149), their Lordships were dealing with Sub-section (6) of Section 3 of the Essential Commodities Act, 1955 which provides that every order made under that section by the Central Government or any officer or authority of the Central Government shall be laid before both the Houses of Parliament as soon as may be after it is made. Holding that the said provision was directory, it was observed as under:
"From the foregoing discussions, it inevitably follows that the Legislature never intended that non-compliance with the requirement of laying as envisaged by Sub-section (6) of Section 3 of the Act should render the order void. Consequently non-laying of the aforesaid notification fixing the maximum selling prices of various categories of iron and steel including the commodity in question before both Houses of Parliament cannot result in nullification of the notification."
However, the Special Rules were laid on the table of the Legislative Assembly and the provisions of Sub-section (2) of Section 2 of the Act were complied with. As already observed, the rules were laid on the table of the Legislative Assembly on 2nd July, 2001 when the first session of the Eleventh Kerala Legislative Assembly was on and they remained on the table of the House for more than fourteen days thereafter because the session lasted much longer. There is, thus, no factual basis for the contention of the learned Counsel and we have no hesitation in rejecting the same.
18. No other point was raised.
In the result, all the Writ Petitions are dismissed and the two Writ Appeals allowed and it is held that the vacancies in the posts of Industries Extension Officers shall be filled up in accordance with the Special Rules and not from the rank lists prepared by the Commission in terms of the G.O. The parties are left to bear their own costs.