IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON FRIDAY, THE 23RD SEPTEMBER 2011 / 1ST ASWINA 1933 WA.No. 777 of 2011() -------------------- AGAINST THE JUDGEMENT DATED 12.04.2011 IN WPC.19525/2006 .................... APPELLANT : PETITIONER --------------------------------------- SAJITHA.B, D/O.LATE BADARUDIN, KAMBLARA,THOLICODE VILLAGE,NEDUMANGAD TALUK, THIRUVANANTHAPURAM. BY ADV. MR. O.V.RADHAKRISHNAN, SENIOR ADVOCATE MR. LAL GEORGE MS. M.J.INDUJA RESPONDENTS : RESPONDENTS & ADDL.RESPONDENTS --------------------------------------------- 1. STATE OF KERALA,REP.BY PRINCIPAL SECRETARY TO GOVERNMENT,HIGHER EDUCATION DEPARTMENT,GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR OF COLLEGIATE EDUCATION, THIRUVANANTHAPURAM. 3. KERALA PUBLIC SERVICE COMMISSION, REP.BY ITS SECRETRY,KERALA PUBLIC SERVICE COMMISSION, PATTOM, THIRUVANANTHAPURAM. 4. K.RAJANI, AGED 50 YEARS, D/O.V.S.KRISHNANKUTTY,VALAYIL HOUSE, SASTHAMKOTTA PO, KOLLAM,NOW R/AT TYPE IV/B-1, NGO QUARTERS, THRIKKAKARA PO, KAKKANADU. 5. K.P.RAJEEV, KOTHAT HOUSE, MULAVUKAD PO, ERNAKULAM DISTRICT. 6. M.D.SUBAIDA, W/O.SATHEESAN, MATTAPPALLY, EAST KADUNGALLOOR,U.C.COLLEGE PO, ALUVA - 2. W.A. NO. 777 OF 2011 :2: 7. MANOR.R, S/O.SRI.RAJAPPAN ACHARI, AGED 30 YEARS,SIVAMANGALAM,KULANGARA BHAGOM, KOLLAM DISTRICT. R1 AND R2 BY SENIOR GOVERNMENT PLEADER MR. BENNY GERVASIS R3 MR. P.C. SASIDHARAN, STANDING COUNSEL, KPSC R4 MS. ASHA P.KURIAKOSE R5 MR. MILLU DANDAPANI F R6 MR. KRB.KAIMAL, SENIOR ADVOCATE MR. P.SREEKUMAR FOR MR. K.S.MANU (PUNUKKONNOOR) THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 22/08/2011, THE COURT ON 23/09/2011 DELIVERED THE FOLLOWING: J. CHELAMESWAR, C.J. & P.R. RAMACHANDRA MENON J. ~~~~~~~~~~~~~~~~~~~~ W.A.No. 777 Of 2011 ~~~~~~~~~~~~~~~~~~~~ Dated, this the 23rd day of September, 2011 JUDGMENT Ramachandra Menon J. Whether the amendment to Rules 14 and 15 of Part II KS & SSR, substantially changing the concept of 'selection year' and the manner in which the rules of reservation / rotation are to be applied (as per Ext.P5 notification dated 08.03.2006, to be effective from 02.02.2006) has any adverse effect on the rank lists already published or whether the scope of amendment has to be restricted only to the rank lists which are published on or after 02.02.2006, forms the basic issue for consideration in this appeal. 2. The appellant is the unsuccessful writ petitioner. The third respondent, Kerala Public Service Commission, invited application for the post of Lecturer in Islamic History in the Collegiate W.A No. 777 of 2011 : 2 : Education Department, as per the Gazette notification dated 18.12.2011. The appellant, having the requisite qualification, applied for the post and on finalization of the selection process, she was included at rank No. 5 in Ext. P4 rank list published on 28.11.2003. 3. The case put forth by the appellant is that, the first rank holder in Ext. P4 was advised for appointment on 03.02.2004 against an 'open' vacancy, which arose during the first selection year i.e. 28.11.03 to 27.11.2004. The second rank holder (Ezhava community) and the third rank holder (open category) were also advised for appointment in the same selection year (on 13.03.2004). However, in the second selection year i.e. from 28.11.2004 to 27.11.2005, only one vacancy arose and as such, the 4th rank holder was advised on 14.11.2005 against 'open' quota, lest the extent of reservation did exceed 50%. The dispute is with regard to the next W.A No. 777 of 2011 : 3 : vacancy that arose in the 3rd selection year i.e 28.11.2005 to 27.11.2006, which was a retirement vacancy in the University College, Thiruvananthapuram occurred on 01.06.2006. Since there was only one vacancy in that year, the appellant contends that she was liable to be advised in respect of the said vacancy as an 'open candidate', to be in conformity with the rule providing a maximum of 50 % reservation as contemplated under the 'proviso' to 15 (c) of KS & SSR. 4. The appellant was let known that she could not be advised in view of Ext. P5 amendment to the Rule w.e.f. 02.02.2006. As per the said amendment, the concept of different selection years, consisting of the first, second and third respectively was dispensed with and the 'selection year' was defined to mean the whole currency of the rank list from the date of publication, till its expiry. The provision W.A No. 777 of 2011 : 4 : to have the 'Turn Passed Over' (TPO), 'No Candidate Available' (NCA) and 'Non Joining Duty' (NJD), enabling the said vacancies to be filled up by 'open' candidates was dispensed with, providing for re-notification of the vacancy for the concerned category, in the manner specified therein. It was also stipulated that, all pending uncompensated Turns Passed Over, No Candidate Available, Non Joining Duty Vacancies had to be compensated. 5. Pursuant to Ext. P5 amendment to the Rules, the PSC issued Ext. P6 Circular prescribing the modalities to be applied for giving effect to the same. Subsequently, the PSC issued Ext. P13 Circular (produced in the due course getting the Writ Petition amended, accordingly challenging the same as well), stipulating that paragraph 2 of Ext. P6 Circular will stand substituted to the effect that the selection year in respect of the rank list published prior to 02.02.2006 will continue from the W.A No. 777 of 2011 : 5 : stage at which the Rank List stood as on the date of last advice, disregarding the previous selection years, if any and that the OC - BC position in the last rotation would be reckoned only as on 02.02.2006. The appellant sought to challenge Ext. P5 amendment and also the power and competence of the PSC to have issued the concerned Circulars, contending that, the amendment could not have any adverse effect on the vested rights of the appellant to get advised to the vacancy, being serial No. 5 in Ext. P4 rank list published, pursuant to the selection finalized prior to 02.02.2006, the effective date of amendment. 6. During the pendency of the above Writ Petition, some other writ petitions were also filed by the parties concerned, connected with the subject matter herein, particularly with regard to the filling up of the 5th vacancy which arose on 01.06.2006 and all these petitions were tagged W.A No. 777 of 2011 : 6 : together and considered accordingly. The claim was resisted by the PSC, by filing a counter affidavit dated 12.07.2007, followed by the additional counter affidavit dated 14.12.2007. The first respondent / Government has filed counter affidavit in support of the stand taken by the PSC, justifying the amendment and as to the lack of merit in the Writ Petition. A counter affidavit has been filed by the additional 7th respondent, who is a 'viswakarma candidate', as well. 7. In the course of hearing before the learned Single Judge, various decisions were cited from the part of the writ petitioner, such as N.T. Devin Katti and Others Vs. Karnataka Public Service Commission and others [(1990) 3 SCC 157], P. Mahendran and others Vs. State of Karnataka (AIR 1990 SC 405), Gopal Krushna Rath Vs. M.A.A. Baig (Dead) by Lrs. and Others [(1999) 1 SCC 544], State of Uttaranchal and others Vs. Sidharth Srivastava W.A No. 777 of 2011 : 7 : and Others [(2003) 9 SCC 336], Secretary, A.P. Public Service Commission Vs. V. B. Swapna and Others [(2005) 4 SCC 154], Railway Board and others Vs. T. Vittal Rao and others [(2006) 2 SCC 467], Marripati Nagaraja and others Vs. Government of Andhra Pradesh and others [(2007) 11 SCC 522] and Hemani Malhotra Vs. High Court of Delhi [(2008) 7 SCC 11]. The State as well as the PSC contended that the above decisions did not have any application to the case in hand and that the issue was actually covered by the Full Bench decision of this Court reported in Mohanan Vs. Director of Homeopathy (2006 (3) KLT 641 FB). Some other unreported decisions were also sought to be pressed into service, including that of a Division Bench. After referring to the relevant provisions of law and the judicial precedents, the learned Single Judge observed that, the issue was squarely covered by the Full Bench decision rendered by this Court in W.A No. 777 of 2011 : 8 : Mohanan's case (cited supra), holding that, all the vacancies which arose after the amendment of the Recruitment Rules had to be filled up only on the basis of the amended rules, notwithstanding the placement given to anybody in the rank list, published before such amendment. Accordingly, interference was declined and W.P.(C) No. 19525 of 2006 was dismissed, simultaneously disposing of all the connected cases, based on the findings as aforesaid. The petitioner in W.P.(C) No. 19525 of 2006 seeks to assail the judgment passed by the learned Single Judge in this appeal. 8. Heard Sri. O.V. Radhakrishnan, the learned senior counsel appearing for the appellant; Sri. Benny Gervasis, the learned Senior Government Pleader appearing for the State; Sri. P.C. Sasidharan, the learned standing counsel appearing for the Kerala Public Service Commission; Sri. K. R.B. Kaimal, the learned senior counsel appearing W.A No. 777 of 2011 : 9 : for the 6th respondent and the learned counsel for the others concerned. 9. The arguments by the appellant are mainly three fold. Firstly, Ext. P5 amendment does not have any retrospective operation and is only prospective from the effective date shown as 02.02.2006, which cannot affect the accrued rights of the appellant by virtue of inclusion in Ext. P4 rank list published on 28.11.2003 i.e. much prior to the date of commencement of the amendment. The second point raised is that the amendment is only in relation to the vacancies under the 'reserved quota' and that the same cannot have any effect with regard to 50 % vacancies earmarked to the 'open' category (under which head, the appellant seeks to establish the claim, in respect of the sole vacancy which arose in the 3rd selection year, pursuant to the retirement of an employee on 01.06.2006). The third and last contention is with regard to the W.A No. 777 of 2011 : 10 : absence of power, jurisdiction and competence for the PSC to have issued Ext. P13 Circular, which is stated as contrary to the relevant rules. Reliance was also sought to be placed on the decision rendered by a Division Bench of this Court in W.A. 137 of 2007 (paragraphs 4 and 5). 10. The learned senior counsel for the appellant drew our attention to various decisions including (1990) 3 SCC 157 (cited supra) and other verdicts as cited before the learned Single Judge, in support of the contentions raised in the appeal. The factual and legal position as asserted before the learned Single Judge by the concerned respondents were sought to be reiterated by the concerned counsel in this appeal as well. The scope of the various decisions cited at the Bar has been dealt with by the learned Single Judge, referring to each case separately, as discernible from paragraphs No. 8 to 19 and we do not propose to W.A No. 777 of 2011 : 11 : reproduce the same. Referring to the specific observation made by the Full Bench of this Court in Mohanan's case (cited supra), that once an amendment regarding the qualifications and method of appointment etc. in respect of a particular post comes into force, any vacancy which arises subsequent to the commencement of the amended rules, can be filled up only in accordance with the amended rules notwithstanding the currency of any rank list published by the PSC (selection of which was initiated prior to the amendment of the Rules), the learned Single Judge has observed that, the dictum laid down by the Full Bench is a complete answer to the issue raised before the Court and as such, going by the dictum laid down therein, in view of Ext. P5 amendment, any vacancy which arose after 02.02.2006 could have been filled up only in accordance with the amended rules, notwithstanding the fact that the selection was initiated prior to the amendment of W.A No. 777 of 2011 : 12 : the Rules. The attempt made from the part of the concerned writ petitioner, trying to distinguish the Full Bench decision, stating that, the amendment considered therein was with regard to the qualification, it has been observed in paragraph 21 of the verdict, that the Full Bench had considered the whole issue with reference to the date of occurrence of the vacancy as well. 11. Going further, the learned Single Judge in Paragraph 24, has referred to the observation of a Division Bench of this Court in W.A. No. 843 of 2008. Paragraph 2 of the said verdict was extracted therein, which reads as follows : 24. A Division Bench of this Court in the judgment in W.A. No. 843 of 2008 held in para 2 as follows: “But now it is well settled that the law applicable at the time of filling up the vacancies has to be taken into account and not the law prevailing when the rank list was published. In view of this well settled position, the claim of the appellant W.A No. 777 of 2011 : 13 : to ignore the amendment introduced to Rule 15 of Part II KS & SSR cannot be allowed”. The verdict passed by the Division Bench as aforesaid was followed in W.P.(C) No. 21028 of 2006 (as referred to in the very same paragraph) and it was accordingly, that a finding was rendered, that the Writ Petition was devoid of any merit; thus declining interference. The scope of amendment has been considered and answered in favour of the PSC / State by another Division Bench of this Court as per the verdict passed in W.A. 867 of 2009 as well. We find that the verdict passed by the Full Bench in Mohanan's case (cited supra) and that of the Division Bench in W.A. No. 843 of 2008 have been rightly followed by the learned Single Judge and we concur with the finding and reasoning given in this regard. 12. No doubt, there cannot be any dispute with regard to the settled position of law that the Rules of the game cannot be changed, once the game is W.A No. 777 of 2011 : 14 : started, as held in various decisions cited from the part of the appellant, as referred to before the learned Single Bench and before us, including that of the Apex Court in K. Manjusree Vs. State of Andhra Pradesh [(2008) 3 SCC 512] and that of a Division Bench of this Court in W.P(C) 2282 of 2009 and connected cases [ILR 2009 (4) Kerala. 543 (Asha P.Vs. State of Kerala). This is mainly with intend to arrange a common platform, where different persons are put to contest among themselves and that the change in qualification / norms for selection shall not affect the rights and interest of the parties concerned in proving their credentials to the extent it is required and notified. The scope and applicability of Ext. P5, amendment of Rules 14 and 15 of Part II KS & SSR, stands entirely on a different footing, which rather stipulates the turn in which allocation is to be made from the rank list, following the rules of reservation / rotation. W.A No. 777 of 2011 : 15 : As given in the 'explanatory note' of Ext.P5, the change was necessitated in view of the steps taken by the Government to give effect to Justice Narendran Commission Report, with a view to ensure adequate representation of backward class and also to avoid loss of representation of the communities, who have reservation in appointments made through Kerala Public Service Commission / Selection Authority. It was with this intent, that the concept of 'selection year' was changed to be effective for the period from the date on which the rank list comes into force, to the date on which it expires. The undue benefit, which otherwise was being enjoyed by the 'open' category candidates, has thus been done away with, stipulating that the vacancies had to be kept unfilled and notified separately, in the manner as specified therein. As per the 'Note' added under Rule 15 (a), all pending uncompensated turns of vacancies, such as W.A No. 777 of 2011 : 16 : 'Temporarily Passed Over', 'No Candidate Available' and 'Non-Joining Duty', as on 2nd February 2006 have been stipulated to be compensated, which by itself is a pointer, as to the object sought to be achieved. The provisions have to be read, not in isolation, but as a whole, when it becomes conspicuous that the amendment seeks to remedy the situation, which otherwise was defective so far, by providing appropriate measures with regard to the advice and placement given for the respective categories. As it stands so, the arguments advanced from the part of the appellant that the amendment relates to the reserved categories alone and is not intended to affect the 'open category turn' is not of much pith or substance. 13. With regard to the submission made referring to the lack of power or competence of the PSC to have issued Ext. P13 Circular, it is to be noted that nothing new has been stated by the PSC, nor has W.A No. 777 of 2011 : 17 : anything been added or varied or modified, contrary to Ext. P5 amended Rules. As mentioned herein before, the amendment virtually changes the concept of 'selection year', making the same to be for the period from the date of publication of the rank list, till the date of expiry. The stipulation that the amendment has come into force w.e.f. 02.02.2006, in the light of the other provisions contained therein, only suggests that the advice made prior to the said date need not be unsettled, however making it clear that the Temporarily Passed Over, No Candidate Available and Non Joining Duty vacancies, already resulted as on that date, have to be compensated. The PSC, as per Ext. P13 Circular, does not change the commencement of the selection year, but for mentioning that in the case of the rank lists finalized prior to 02.02.2006, the selection year shall be 'continued' from the stage at which the Ranked List stands as on date of last W.A No. 777 of 2011 : 18 : advice disregarding the previous selection year, if any. This Court finds it difficult to accept the proposition mooted by the appellant as to the challenge raised against Ext. P13 Circular or in respect of the virus of Ext. P5 amendment; which has not been effectively or successfully brought out. 14. There is also a contention for the appellant that the scope of Ext. P5 amendment was considered and held as not applicable, where the selection process had already been started, in an unreported judgment in W.P.(C) 16862 of 2006 passed by a learned Single Judge on 20.12.2006. It is stated that the said verdict has been affirmed by a Division Bench, as per the verdict dated 06.02.2007 in W.A. No. 137 of 2007. The case involved therein was that the respondent University issued a notification on 19.12.2005 for appointment to the post of 'Reader' in Microbiology, specifying that, the vacancy was reserved for an Ezhava candidate and W.A No. 777 of 2011 : 19 : that, only in the absence of such candidates, that others will be considered. During the process of selection and before finalization, Rule 15 (a) of KS & SSR was amended (as per Ext. P5 herein). The writ petitioner therein contended that the 3rd respondent did not belong to Ezhava community, who hence should not have been considered in the wake of amendment and that the writ petitioner, being an Ezhava candidate having applied to the post ought to have been considered. The Bench observed that, if the petitioner / appellant had applied to the post being an Ezhava candidate, there was no question of application of the amendment, because if the appellant was qualified he was to be appointed. It was also simultaneously observed that the appellant was relying on the amendment, obviously because he was not qualified, as he did not posses a Doctoral Degree or any equivalent publication work of International standards and hence it had necessarily W.A No. 777 of 2011 : 20 : to be taken, as if, there were no qualified candidates belonging to 'Ezhava' community. It was in the above background, that reference was made to the scope of amendment as an incidental aspect, which however does not lay down any law in support of the case projected by the appellant herein. The said verdict has to be read, understood and appreciated with reference to the 'ratio decidendi' and this Court finds that the same is not applicable to the case in hand. In the above facts and circumstances, the judgment under appeal does not call for any interference. The appeal fails and it is dismissed accordingly. J. CHELAMESWAR, CHIEF JUSTICE P. R. RAMACHANDRA MENON, JUDGE kmd