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  Judgement - 09KLC-3343
 
   
   
 

Before MR.S.R.Bannurmath & K.M Joseph, JJ
Thursday, the 12th day of November 2009/ 21st Karthika 1931

Party Array / Case No.


IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 2021 of 2009(R)


1. ASHA.P., D/O.K.PONNAMMA,
                      ...  Petitioner

                        Vs



1. STATE OF KERALA, REP.BY SECRETARY TO
                       ...       Respondent

2. HIGH COURT OF KERALA, REP. BY THE

3. REGISTRAR(SUBORDINATE JUDICIARY),

4. BABU.K., R/AT CHARUVILA PUTHEN VEEDU

5. KAUSER EDAPPAGATH R/AT.ZAHIRA,

6. BADHARUDEEN.A., R/AT.PANAYIL VEEDU,MYLAK

7. LAKSHMI.K., ADVOCATE, R/AT.SATHYAGRIHA,

8. GIRIJA.P.G., R/AT.KAZHANIPARAMBIL,

9. SHAJITH.T., R/AT.UDAYAM, IMA HALL ROAD,

10. BEVEENA NATHA.K.S.,R/AT.TAJ

11. MANILAL.C.S, R/AT.CHENNATTU HOUSE

12. NAZEERA.S., R/AT.8/61, NELSA , VIDYA

13. BALAMURALEEDHARAN.G., R/AT.SMRUTHI

14. SHEREEF.K.P., R/AT.KADAMBIL,

15. BALAKRISHNAN.K.K., ADVOCATE R/AT.

16. SULEKHA.M., R/AT.PANAMVILAKAM VEEDU,

17. AJITH THANKAYYA, R/AT.PADMALAYAM,

18. ASHA.B.MATHEWS, R/AT.PALLATHU HOUSE

19. SHERLY.S.A., R/AT.PUNNAKKATTUSSERY

20. MOHANAN VALIYAPURAYIL,

21. ANILRAJ.K.K., R/AT.KAYAKANDIYIL HOUSE,

22. LATHA JAYARAJ

23. ANILC.D., R/ATASHA BHAVAN,

24. SUNIL KUMAR.K., R/AT.CHEMBAKA HOUSE

25. CLEMANCE ANTO GRACE THOTTAPPILLY

26. FATHIMMA BEEVI.M.M.,R/AT.SANDRAM,

27. CHITHRA LEKHA.V.K., R/AT.RAMAVILAS,

29. ALPHONSA JOHN, ADVOCATE, R/AT.

30. ALIYAR.M.M.,R/AT.M.M.HOUSE,

31. SIVANANDAN.C.T., R/AT.CHEEKILOTTU

32. BEENA.K.C., R/AT.KOMATHARA HOUSE

                For Petitioner  :SRI.V.CHITAMBARESH (SR.)

                For Respondent  :SRI.KRB.KAIMAL (SR.)

Judgement




     
     O R D E R
                         S. R. BANNURMATH, CJ. &
                               K. M. JOSEPH, J.
                  --------------------------------------------------
                    W.P(C).NOS.2021/09 R, 2282/09 R,
                     2302/09 R, 3543/09 R, 4810/09 R,
                            14027/09 R & 19032/09,
                  ---------------------------------------------------
                  Dated this the 12th November, 2009

                                  JUDGMENT


    Joseph, J.


         Several important and interesting questions arise for our

    consideration in this batch of Writ Petitions coming up by

    reference by a learned Single Judge, Justice T. R. Ramachandran

    Nair. What is the effect of the founding fathers providing for

    seven years experience as an Advocate to be eligible for

    appointment as a District Judge in Article 233(2) ? Does the

    acceptance of the Report of the Shetty Commission by the Apex

    Court in the decision in All India Judges' Association And

    Others v. Union of India And Others((2002) 4 SCC 247)

    (hereinafter referred to as the All India Judges case) amount to

    declaration of law ?       What is the impact of the amendment in

    the Kerala Higher Judicial Service Rules, 1961 (hereinafter

    referred to as the Rules) prescribing the qualification of

    WPC.2021/09R & CONN.CASES         2

    minimum age as thirtyfive and the maximum age as fortyfive for

    appointment as a District Judge on the rights of the writ

    petitioners, who had applied for selection and passed the written

    test prior to the amendment?

          2. The Facts:

          The High Court of Kerala issued a Notification dated

    16.4.2007 inviting applications for appointment as District

    Judges. The last date for receipt of applications was fixed as

    30.6.2007.     The qualifications prescribed, inter alia, are as

    follows:

          Qualifications for appointment:

          A candidate for appointment as District Judge from the Bar

          shall satisfy the following conditions:

          (a)   He shall be a Citizen of Indian Union.

          (b)   He shall not have completed 47 years of age on the
                first day of January, 2007.

          (c)   He shall be of good character.

          (d)   He shall be of sound health and active habits and free
                from any bodily defect or infirmity which renders
                him unfit for such appointment.

          (e)   He shall not have more than one wife living unless

    WPC.2021/09R & CONN.CASES       3

               exempted by the Government on special grounds.

         (f) He shall be a practising Advocate and should
             have so practised for a period of not less than 7
             (seven) years.


               Note.-(1): Upper age limit shall be raised by

         five years in the case of candidates belonging to

         Scheduled Castes or adult members of such Castes

         and their children when such adult members are

         converted to other religion or Scheduled Tribes and

         by three years in the case of candidates belonging to

         any of the Other Backward Classes.


               (2)    For relaxation of age limit for other

         categories of persons, provisions in Rule 10 of the

         Kerala State and Subordinate Service Rules, 1958

         may be referred to. Any one coming within the

         description in the Rules and who satisfies the other

         conditions can also apply.


               (3)   Save as otherwise provided, eligibility

         shall be determined with reference to the last date

         fixed for receipt of the applications."

    The petitioners filed applications pursuant to the Notification.

    WPC.2021/09R & CONN.CASES       4

    The process of selection contemplated under the Notification

    comprises of a written examination and a viva voce. The written

    test was held from 27.10.2007 to 29.10.2007. After conduct of

    the written test, the Rules came to be amended. The amendment

    with which we are concerned, relates to the prescription of

    minimum and maximum age. The following is the amendment:

                "(d):    For clause (b) of sub-rule (2), the

          following shall be substituted, namely:-

                "(b) He shall have attained the age of 35

          years and shall not have completed 45 years of age

          on the first day of January of the year in which

          applications for appointment are invited:

                Provided that the provisions in sub-rule (c)

          of Rule 10 of the Kerala State and Subordinate

          Service Rules, 1958 raising the upper age limit in

          the case of candidates belonging to Scheduled

          Castes, adult members of Scheduled Castes and

          their children when such adult members are

          converted to other religions, Scheduled Tribes and

          Other Backward Classes shall be applicable to

          such candidates for appointment under Rule (2) (c)

          (iii)."

    WPC.2021/09R & CONN.CASES        5

    After the substitution, the relevant Rule reads as follows:

                "3.(2):     A candidate for appointment to

          category (2) from the Bar shall satisfy the

          following general conditions, namely.-

                     x            x         x           x

                (b)  He shall have attained the age of 35

          years and shall not have completed 45 years of age

          on the first day of January of the year in which

          applications for appointment are invited.

                Provided that the provisions in sub-rule (c) of

          Rule 10 of the Kerala State and Subordinate

          Service Rules, 1958 raising the upper age limit in

          the case of candidates belonging to        Scheduled

          Castes, adult members of Scheduled Castes and

          their children when such adult members are

          converted to other religions, Scheduled Tribes and

          Other Backward Classes shall be applicable to

          such candidates for appointment under Rule (2)(c)

          (iii)."

    The amendment which came into force "at once", was published

    in the Official Gazette on 12.6.2008. Subsequently, the viva

    voce was held from 1.12.2008 to 12.12.1008.        The petitioners

    (save one) were invited for the interview. The petitioner in W.P.

    WPC.2021/09R & CONN.CASES       6

    (C).No.2302/09 came to be interviewed pursuant to the

    Judgment in W.A. No.229/08. It is subsequently that a select

    list came to be published.      However, the complaint of the

    petitioners is that they stand excluded from selection on the

    basis of amendment to the Rules prescribing minimum and

    maximum age as aforesaid. That is to say, except for the

    petitioner in W.P.(C).No.3543/09, all the other writ petitioners

    being below thirtyfive years of age as on 1.1.2007, stand

    excluded from being considered for appointment. The petitioner

    in W.P.(C).No.3543/09 stands excluded by virtue of his being

    over aged in terms of the amended rule.

          3. We heard the learned counsel for the writ petitioners,

    the learned senior counsel appearing on behalf of the High Court

    of Kerala as also the learned counsel appearing for the

    contesting parties including the State of Kerala.

          The Contentions:

          4. Shri K. Jaju Babu, learned counsel for the petitioners in

    W.P.(C).No. 2282/09 would essentially raise two contentions

    WPC.2021/09R & CONN.CASES        7

    before us. He would submit that the petitioners fulfilled the

    criteria which were stipulated in the Notification. The only

    stipulation as to age contained in the Notification as also the

    Rules was that the candidate should not have crossed fortyseven

    years of age. He would submit that the Notification makes it

    clear that the question of qualifications and conditions would be

    judged with reference to the last day prescribed for receipt of

    applications.   The last date was 30.6.2007.     The petitioners

    could not, therefore, be eliminated with reference to the

    amendment incorporated in the Rules by publication in the

    Gazette dated 12.6.2008. He would submit that the amendment

    does not have any retrospective effect.       The amendment is

    purely prospective as is evident from the words indicating that

    the amendment would come into effect at once. He would,

    therefore, submit that the amendment, even if it is valid, would

    not apply in respect of the writ petitioners. He would press into

    service the principle that once a recruitment process has

    commenced, the Rules of the game cannot be altered and even if

    WPC.2021/09R & CONN.CASES        8

    there is an alteration, it will not affect the rights of those who

    had already applied and the matters must be decided in respect

    of the applicants with reference to the qualifications and

    conditions as they prevailed with reference to the relevant day

    which in this case, is the last day for receipt of the applications.

    In this regard, he relied on the case law, which we shall advert

    to.

          5. Shri K. Jayakumar, learned counsel appearing for the

    petitioner in W.P.(C). No.19032/09 would, apart from adopting

    the contentions of Shri Jaju Babu, contend as follows:

          The amendment to the Rules which is impugned by him is

    ultra vires of Article 233(2) of the Constitution. According to

    him, the prescription of a minimum age limit of thirtyfive years

    would be opposed to the prescription of the eligibility condition

    of seven years experience as an Advocate. He would submit

    that subordinate legislation cannot, if it does not square with the

    constitutional provisions, survive judicial scrutiny. He would

    submit that the prescription of eligibility to be appointed as a

    WPC.2021/09R & CONN.CASES         9

    District Judge being only that the candidate should have seven

    years practice would impliedly exclude the fixation of the

    minimum age of thirtyfive years.        He would expatiate and

    submit that if the candidate has seven years of practice and thus

    fulfills the requirement of Article 233(2), an age limit which is

    incompatible with the prescription of seven years as the

    eligibility condition is impermissible. He would contend that

    without an amendment to Article 233, the amendment was

    illegal.

          6.    Shri M. Pathros Mathai, learned senior counsel

    appearing for the petitioner in W.P.(C).No.14027/09, however,

    would contend that the petitioner in his case, in fact, complies

    with the condition that the candidate should be thirtyfive years

    of age. His argument is that in accepting the recommendations

    of the Shetty Commission, all that the Supreme Court has

    decided was that the candidate should have a minimum age of

    thirtyfive years to be appointed as District Judge. He does not

    dispute the fact that the petitioner was not thirtyfive years of age

    WPC.2021/09R & CONN.CASES        10

    as on 1.1.2007. But, he would contend that there would be no

    transgression of the recommendation which stood accepted by

    the Apex Court that the candidate should be thirtyfive years of

    age when he is appointed as a District Judge, in the case of the

    petitioner. It is the petitioner's case that he attained thirtyfive

    years of age before the cut off date, namely the last day for

    receipt of applications. He would also submit that the

    amendment in the Rule is only prospective and the amendment

    could not adversely affect the fate of the petitioner.         The

    decision in Dipitimayee Parida v. State of Orissa & Others

    ((2008 (10) SCC 687) is an authority for the proposition that the

    question of qualification or extra qualification should be

    appreciated with reference to the last date for filing of the

    applications. It is in the same vein, that the decision of the Apex

    Court in Ashok Kumar Sonkar v. Union of India & Others

    ((2007) 4 SCC 54) was rendered. Shri M. Pathros Mathai also

    relied on the decision in Subhash Chand Jain v. Ist Additional

    District And Sessions Judge, Saharanpur And Others (AIR 1989

    WPC.2021/09R & CONN.CASES        11

    SC 1070). Therein, the Court took the view that the employees

    who had been appointed before 1968 were entitled to be

    governed in the matter of seniority on the basis of the length of

    service and the Rule introduced in 1968 by which confirmation

    was made, the basis to determine that inter se seniority could not

    affect their rights. Thus, the proposition canvassed is that a

    vested right cannot be taken away retrospectively. In the same

    vein, he relied on the decision of the Apex Court in R. S. Ajara

    And Others v. State of Gujarat and Others ((1997) 3 SCC 641).

          7. Shri S. Sreekumar, learned counsel appearing for the

    petitioner in W.P.(C). No.2302/09 would also essentially adopt

    the contentions of Shri K. Jaju Babu. He would further contend

    that in the facts of this case, the respondents are estopped from

    invoking the amendment against the petitioner.         He would

    submit that the petitioner had fared exceedingly well in the

    examination, but was not called for the interview. The reason

    given was that though the petitioner was practising as an

    Advocate on the relevant day, subsequently he came to be

    WPC.2021/09R & CONN.CASES       12

    selected as a Munsiff. He approached this Court by filing W.P.

    (C).No.34161/08. Though the learned Single Judge dismissed

    the Writ Petition, a Division Bench of this Court allowed his

    Writ Appeal in the decision in Muhammed Raees v. High Court

    of Kerala (2008 (4) KLT 916). He would draw our attention to

    the aforesaid Judgment. He would contend that the amendment

    came into force on 12.6.2008. It was certainly open to the

    respondents to have set up the amendment against him in the

    earlier Writ Petition, he contends. They failed to do so. The plea

    is, therefore, barred by res judicata or constructive res judicata,

    he contends. The High Court allowed him to participate in the

    interview. He would point out that the petitioner has secured

    424 marks and he stood first. He would submit that in such

    circumstances, the official respondents are estopped from

    invoking the amendment to the Rule to defeat his cause. He

    would submit that the petitioner by mere reason of being below

    thirtyfive years of age should not be eliminated, having regard to

    the remarkable performance that he had shown.

    WPC.2021/09R & CONN.CASES       13

          8. Shri T. Sethumadhavan, learned counsel appearing for

    the petitioner in W.P.(C). No.3543/09 would contend that the

    petitioner in this case was not over-aged, going by the Rule as it

    stood prior to the amendment. He would also contend that the

    amendment cannot be invoked to defeat his rights as it stood

    crystallized on the date on which he applied. He would further

    point out that under Rule 10(c) of the KS & SSR which is

    applicable, he was entitled to relaxation of three years being a

    member of the OBC. He would also point out that the petitioner

    will not get another chance and this is the last chance, which he

    has, to be considered for the post of District Judge. He does not

    dispute that the petitioner was fortynine years of age as on

    1.1.2007.

          9. Shri Jacob P. Alex, learned counsel for the petitioner in

    W.P.(C).No.4810/09 adopted the contentions of Shri Jaju Babu.

          10.    Shri K. R. B. Kaimal, learned senior counsel

    appearing for the High Court of Kerala would address the

    following contentions:

    WPC.2021/09R & CONN.CASES       14

         Entry (41) of List II of the VIIth Schedule to the

    Constitution provides for legislative power with the State

    Legislature as follows:

         "41. State Public Services; State Public Service

                     Commission."

    Prior to the enactment of the Kerala Public Services Act, 1968,

    Article 309 of the Constitution provided for power with the

    State to frame law governing the conditions of service of a

    District Judge also and in the absence of a law made by the

    State Legislature, it was open to the Government to frame Rules.

    It was accordingly that the Rules have been framed in the year

    1961. Subsequently, the Kerala Public Services Act, 1968 came

    to be enacted. The Act, inter alia, provides power with the

    Government of Kerala to frame Rules. The Judicial Service is

    one of the Services mentioned in the Act. Thus, he would

    submit that the Government of Kerala, after 1968 had power to

    frame Rules under the Kerala Public Services Act, 1968. He

    would submit that the Shetty Commission specifically

    recommended the prescription of minimum age of thirtyfive for

    WPC.2021/09R & CONN.CASES      15

    appointment as District Judge, as much as it recommended the

    maximum age of fortyfive for the said post. The matter came up

    before the Apex Court and the Apex Court accepted the

    recommendations, except certain recommendations which were

    either not accepted or accepted in the modified form. As far as

    prescription of minimum age and maximum age to the post of

    District Judge was concerned, he would submit that it cannot be

    in the region of dispute that the recommendations stood

    accepted.    He would submit that the Judgment of the Apex

    Court was declaratory in nature. In other words, he would

    submit that after the Judgment of the Apex Court, unless the

    person is between the age of thirtyfive and fortyfive, he cannot

    be appointed as District Judge. It may be true, he contends, that

    on account of some delay in passing the amendment, the formal

    amendment to the Rules was gazetted only on 12.6.2008. He

    would submit that in view of the Judgment of the Apex Court,

    the petitioners cannot have any right to seek the relief they have

    sought. No doubt, he does not have quarrel with the proposition

    WPC.2021/09R & CONN.CASES       16

    enunciated in a catena of decisions of the Supreme Court

    relating to the effect of an amendment made during the course of

    a selection process.

          11. Shri Elvin Peter, learned counsel appearing on behalf

    of respondent No. 12 in W.P.(C).No. 2282/09 would raise the

    following submissions:

          He would submit that the principle enunciated in the

    decisions of the Apex Court relied on by the petitioners may not

    apply to the facts of this case. He would submit that this Court

    is concerned in these cases with selection to the post of District

    Judge. The selection is sought to be made by direct recruitment.

    The appointees would be holding upon appointment, the post of

    District Judge, an entry post. He would contend that Article

    233 of the Constitution specifically deals with the matter of

    appointment to the post of District Judge.        Article 233(1)

    provides for appointment by the Government in consultation

    with the High Court.          He would submit that in such

    circumstances, in view of the Judgment of the Apex Court by

    WPC.2021/09R & CONN.CASES       17

    which the recommendations of the Shetty Commission

    regarding the minimum and maximum age stood accepted and

    what is more, the Government of Kerala stood directed to

    implement the same with the outer time limit of 30.9.2002 by

    which compliance reports were to be filed by the States as well

    as another, being fixed, if the High Court and the Government

    of Kerala decided that the minimum age should be thirtyfive and

    the maximum age should be fortyfive, an inroad could not be

    made into the same under any Rule framed by the Government.

    In this context, he relied on the Judgment of the Apex Court in

    State of Bihar And Another v. Bal Mukund Sah And Others

    ((2000) 4 SCC 640). In the same, the Apex Court was dealing

    with the law made by the Legislature of the State of Bihar by

    which it provided for reservation for appointment to the post of

    District Judge. There was no consultation with the High Court.

    We will deal with it in detail later on. He would submit that in

    view of the Judgment in the All India judges' case, these Writ

    Petitions are not maintainable. Shri Elvin Peter also would

    WPC.2021/09R & CONN.CASES        18

    submit that there is no merit in the contention based on Article

    233(2) of the Constitution, namely the complaint that the

    prescription of the age limit is ultra vires the eligibility condition

    declared in the same. Learned counsel relied on the decision of

    this Court in Sreekumar v. High Court of Kerala (1995 (2) KLT

    88). He would further contend that what the petitioners are

    seeking in these cases, is a writ of mandamus. He would point

    out that writ of mandamus may not be issued in the light of the

    decision of the Apex Court in the All India Judges' case (2002

    (4) SCC 247). In this regard, he relied on the decision of the

    Apex Court in Delhi Development Authority v. Skipper

    Construction Co. (P) Ltd. And Another ((1996) 4 SCC 622).

         12. Shri P. C. Sasidharan, learned counsel appearing on

    behalf of the 6th and 26th respondents in W.P.(C). No. 2282/09

    would adopt the contentions raised by the respondents.             He

    would further rely on the Judgment of a learned Single Judge of

    this Court in Ajith v. State of Kerala (2007 (2) KLT 1044).

    Therein, the learned Single Judge was concerned with the

    WPC.2021/09R & CONN.CASES      19

    appointment to the post of Munsiff. The complaint raised was

    that there was no consultation as contemplated in law with the

    High Court.     The learned Single Judge found merit in the

    contention. However, the learned Single Judge took note of the

    decision of the Apex Court in the All India Judges' case (supra)

    and proceeded to uphold the impugned Rule. Shri P.C.

    Sasidharan would also in the alternative, advance the following

    argument:

          He would submit that even accepting the case of the

    petitioners, the principle regarding an amendment having

    prospective effect not adversely affecting the rights of those

    who have already applied, could not be pressed into service in

    respect of vacancies which arose after the date of the

    amendment. This principle is accepted by a Full Bench of this

    court in Mohanan v. Director of Homeopathy (2006 (3) KLT

    641 (FB)), following the decision of the Apex Court. He would

    also submit that no relief may be granted in view of the

    developments culminating in the Judgment of the Apex Court in

    WPC.2021/09R & CONN.CASES       20

    the All India Judges' case (supra). The delay in amending the

    Rules on the part of the Constitutional Authorities, he submitted,

    could not be considered as of moment. He would submit that

    any appointment of the petitioners in the circumstances would

    be vulnerable and can be questioned in appropriately instituted

    proceedings.

         13.     Shri A. Mohamed Mustaque, learned counsel

    appearing for the fifth respondent in W.P.(C).No.2282/09

    would make the following submissions:

         He would contend that a distinction must be drawn

    between cases where a party has a vested right and cases where

    the party has accrued right. According to him, all that has

    happened is that pursuant to the Notification issued in the year

    2007, an examination was held. Even prior to the date of the

    interview, the amendment in question was enacted vetoing any

    appointment unless the candidate fulfills the prescription as to

    the minimum and maximum age. He would submit that it is not

    a case where either any appointment has taken place or even the

    WPC.2021/09R & CONN.CASES      21

    select list had been prepared in pursuance of the Notification.

    He would contend, therefore, that the principle which was

    pressed into service by the petitioners could not be applied in

    the facts situation present in these cases. He would further

    contend that in the facts of these cases, what the Court should

    enquire is whether it would be arbitrary for the official

    respondents to deny the right to be considered for appointment,

    in view of the indisputable fact that following the

    recommendation of the High Power Judicial Commission, the

    Apex Court itself accepted the prescription of minimum and

    maximum age.      He would contend that it may be true that

    pursuant to the Notification, the candidates may have applied.

    They may have sat for the examination.          But, they stood

    overtaken by the amendment to the Rule. They did not have any

    accrued right to appointment.      In such circumstances, he

    contended that if the Court did not find any irrationality or

    arbitrariness in the actual decisions and the reasons for the

    decision to prescribe the minimum and maximum age, it may not

    WPC.2021/09R & CONN.CASES        22

    be open to the writ petitioners to impugn their elimination. It is

    pointed out that the petitioners do not question the rationale of

    the amendment.      He pointed out that there is a background to

    the lis and it essentially consisted of the felt necessity to vitalise

    the judiciary and the perceived distinction between the civil

    service on the one hand and judiciary on the other.

          14. Shri A. Mohamed Mustaque would contend further

    that what the petitioners have is a legitimate expectation. He

    would point out that a legitimate expectation can be defeated, if

    there is a change in policy. (See Madras City Wine Merchants'

    Association And Another v. State of T.N. And Another ((1994)

    5 SCC 509), Punjab Communications Ltd. v. Union of India and

    Others ((1999) 4 SCC 727) and State of M.P. And Others v.

    Raghuveer Singh Yadav And Others ((1994) 6 SCC 151) and

    Kuldeep Singh v. Govt. of NCT of Delhi ((2006) 5 SCC 702)).

    In the last decision, the Court dealing with the question relating

    to the grant of licence to vend liquor, took the view that there

    can be no vested right with the applicant on the basis of the

    WPC.2021/09R & CONN.CASES      23

    applicant having made huge investments. He would, therefore,

    contend that when what existed is a legitimate expectation and

    there is a change of policy, it is to be tested on the anvil of

    Articles 14 and 16. He would further contend that Article 233

    of the Constitution enables the High Court to recommend

    persons based on the policy which in turn, is based on the

    decision of the Apex Court. It is the prerogative power of the

    High Court which is available under Article 233, he contends. If

    it were a matter affecting selection process, the time factor may

    be relevant, he contends. But, it is not so. He further contended

    that the concern of the Apex Court for preserving independence

    in judiciary has been evinced by it from 1990 onwards, in a

    series of decisions. Referring to the decision of the Apex Court

    in Indra Sawhney v. Union of India And Others ((2000 (1) SCC

    168), he would contend that a mandamus cannot be issued to

    override the direction of the Supreme Court. He further relied

    on the decision of the Apex Court in Dr. Chanchal Goyal (Mrs).

    v. State of Rajasthan (2003 (3) SCC 485) and Jitendra Kumar

    WPC.2021/09R & CONN.CASES       24

    And Others v. State of Haryana And Another ((2008) 2 SCC

    161). The last was a case where the question was of legitimate

    expectation. There was a change of government. The new

    Government decided not to act on the select list which had been

    published by the previous Government. The decision was to not

    appoint for valid reasons. Then, he relied on the decision of the

    Apex Court in High Court of Judicature at Bombay through

    Registrar And Another v. Brij Mohan Gupta (Dead) through Lrs.

    And Another ((2003) 2 SCC 390).         We shall notice the said

    case in greater detail, as it may be crucial for a proper decision

    in this matter. Shri R.K. Muraleedharan, learned counsel

    appearing for the 14th respondent in W.P.(C). No.2282/09

    adopted the contentions of the respondents.

         15. Shri Nandakumar, learned Government Pleader made

    the following submissions:

         He contended that in some cases, Rules were not

    challenged and in W.P.(C).No.3543/09, the prayer is for a writ

    of certiorari which is misconceived. (Subsequently proper

    WPC.2021/09R & CONN.CASES      25

    prayers stand incorporated by amendment). He submitted that

    the Government could not make a Rule governing the selection

    to the post of District Judge by itself. The proposal from the

    High Court came on 26.8.2006 and, therefore, he would contend

    that the intention of the High Court was to amend the Rule

    fixing the age limit in tune with the Supreme Court Judgment

    prior to the Notification.  No doubt, he would take the stand

    that the Judgment of the Apex Court in the All India Judges'

    case (supra) was not a completely declaratory Judgment. But,

    he would submit that it is binding on the State and the High

    Court. He referred to R.L. Bansal And Others v. Union of India

    And Others ((1992) 2 Suppl. SCC 318) and Karnataka Bank

    Limited v. State of A.P. & Others ((2008) (2) SCC 254) for the

    proposition that candidates have no legal right to be appointed.

    He also relied on Mani Subrat Jain And Others v. State of

    Haryana And Others ((1977) 1 SCC 486) and Shankarsan Dash

    v. Union of India ((1991) 3 SCC 47) in this regard. As regards

    the validity of the Rule is concerned, he would submit that no

    WPC.2021/09R & CONN.CASES        26

    ground has been made out to invalidate the Rule. He said that

    none of the vitiating factors as laid down by a Division Bench of

    this Court to unsettle a Rule were present in this case. (See

    Pankajaksy & Others v. George Mathew & Others (1987 (2)

    KLT 723).

          16.  Shri K. P. Dandapani, learned senior counsel for

    respondents 4 and 16 in W.P.(C). No.2021/09 and for the same

    respondents in the connected cases, adopted the contentions of

    the other   respondents.    In addition, he contended that the

    amendment in question which was brought on 09.6.2008 was a

    curatory amendment, and it would have effect in respect of the

    petitioners also. In this regard, he relied on the decision of the

    Apex Court in S.S. Grewal v. State of Punjab And Others (1993

    Suppl. (3) SCC 234), S. B. Bhattacharjee v. S. D. Majumdar

    And Others((2007) 10 SCC 513 Paragraph 36) and Renganatha

    Pai v. DIG of Police (1994 (2) KLT 366).

          17. Shri S. Sreekumar, learned counsel for the petitioner,

    in reply, would refer us to the decision in Comptroller And

    WPC.2021/09R & CONN.CASES       27

    Auditor General of India, Gian Prakash, New Delhi And

    Another v. K. S. Jagannathan And Another ((1986) 2 SCC 679)

    in regard to the scope of a writ of mandamus. He also relied on

    the decision in Ashok Kumar Sonkar v. Union of India And

    Others ((2007) (4) SCC 54) which related to the question of cut

    off date.

          18.  Shri K. Jayakumar, in his reply, submits that the

    principle enunciated in K. Manjusree v. State of Andhra Pradesh

    And Another ((2008) 3 SCC 512) has been accepted as laying

    down the correct law in Hemani Malhotra v. High Court of

    Delhi ((2008 (7) SCC 11). He also sought to draw support from

    certain recent decisions of the Apex Court in Amlan Jyoti

    Borooah v. State of Assam And Others ((2009) 3 SCC 227),

    and Mohd. Sohrab Khan v. Aligarh Muslim University And

    Others ((2009) 4 SCC 555). He would contend that the decision

    of the Division Bench of this Court in Sahadeva Valigan v. State

    of Kerala (1988 (1) KLT 202) was not applicable to the facts

    and that was a case where initially the power of selection of

    WPC.2021/09R & CONN.CASES       28

    Munsiff's was lodged with the Public Service Commission and a

    conscious decision was taken to vest the power with the High

    Court. He would submit that it may be different, if it was

    decided not to proceed with the Notification issued in 2007, to

    cancel the same and to proceed afresh in which case the

    amendment in question may apply. He would contend that the

    argument of the respondent based on the need for maintaining

    independence in judiciary equally involved the need for the

    judiciary to follow the rule of law and he invoked the principle

    established by the Apex Court in Maharashtra State Judges'

    Association And Others v. Registrar General, High Court of

    Judicature At Bombay and Another ((2009) 1 SCC 569) and

    contended that the Apex Court itself contemplated the need for

    an amendment and, therefore, there is no merit in the argument

    of the Apex Court decision in the matter operating as an

    amendment of the Rule itself.      Reliance was placed on the

    decision of the Apex Court in Civil Appeal No.1867/2006.

         19.   Shri K. Jaju Babu, learned counsel, would apart from

    WPC.2021/09R & CONN.CASES       29

    reiterating the contentions, submit that the amendment of the

    Rule being purely prospective, it could not interfere with the

    destiny of the applicants pursuant to the Notification of the year

    2007. Learned counsel appearing in W.P.(C).No.14027/09

    would reiterate that the petitioner in his case had completed

    thirtyfive years of age prior to the last date for receipt of

    applications as per the Notification and accepting that the

    amendment was having retro-active operation, in the wake of the

    decision of the Apex Court in so far as the Apex Court had not

    stipulated the time at which the candidate must fulfill the

    requirement of minimum age, he would submit that it is a

    principle incorporated in the Notification also, namely the

    fulfillment of the conditions must be with reference to the last

    date of receipt of applications, which binds. He also points out

    that in regard to the vacancies which arose prior to the

    amendment, it is the Rule in force prior to the amendment which

    must hold good. In this context, he relied on the decision of the

    Apex Court in Y.V. Rangiah And Others v. J. Sreenivasa Rao

    WPC.2021/09R & CONN.CASES       30

    ((1983) 3 SCC 284 at paragraph 9).          Of course, he would

    submit that if the Court accepts the principle that the amendment

    has no effect on the petitioners, the petitioner is entitled to

    succeed on that score. In reply to the aforesaid submissions,

    Shri K.R. B. Kaimal would submit that the Clause in the

    Notification provided that the last date shall be relevant save as

    otherwise provided. The relevance of the first day of the year is

    justified with reference to the Public Services (Date for

    Determination of Age for Eligibility For Appointment) Rules,

    1977, he contended.         He would submit that even the

    Notification as issued, contemplated the fixation of age with

    reference to 1.1.2007 in keeping with the said Rules. However,

    Shri P. B. Suresh Kumar would submit that the said Rules

    cannot apply as the Rules providing for selection to the post of

    District Judge did not contemplate any minimum age and,

    therefore, the question of the Rules relied on by Shri K. R. B.

    Kaimal operating on the Rules, would not arise.

    WPC.2021/09R & CONN.CASES        31

                      FINDINGS:

         20. Whether the Amended Rule is valid And Whether

               it is ultra vires Article 233(2) of the Constitution ?

         Article 233 reads as follows:

                "233.    Appointment of District Judges.-(1)

          Appointments of persons to be, and the posting and

          promotion of, District Judges in any State shall be

          made by the Governor of the State in consultation

          with the High Court exercising jurisdiction in

          relation to such State.

                (2) A person not already in the service of the

          Union or of the State shall only be eligible to be

          appointed as District Judge, if he has been for not

          less than seven years an Advocate or a Pleader and

          is   recommended       by   the   High    Court   for

          appointment."

    As far as the contention that the prescription of age limit is ultra

    vires of Article 233(2), we are of the view that there is no merit

    in the contention. Article 233(2) undoubtedly provides that in

    order that a person be considered eligible, he should have seven

    years of experience as an Advocate. It is quite clear that the

    WPC.2021/09R & CONN.CASES       32

    founding fathers only intended to incorporate the requirement

    as to practice, i.e. the number of years of standing that an

    Advocate should possess to render him eligible. We find it

    inconceivable that the founding fathers would have considered

    it not being open to the appropriate authority to prescribe

    qualifications which do not directly conflict with the

    constitutional mandate. Take for instance: the prescription of

    good character as a qualification. The prescription of good

    character is an objective and universal prescription for

    appointments in all situations. In fact, the possession of good

    character would be of the utmost importance for a person who is

    to hold the judicial post. We find, in fact, that good character is

    prescribed in the Rules as one of the qualifications for

    appointment as District Judge. Can it be said that prescription

    of character by the appropriate authority in consultation with the

    High Court is liable to be found incompatible with the dictate of

    Article 233(2) ? We certainly think not. It is to be further noted

    that it is not as if by the prescription of the age limit, the law

    WPC.2021/09R & CONN.CASES        33

    giver is providing for a qualification contrary to what is

    provided in Article 233(2) of the Constitution. If for instance,

    the Rule was amended to provide for a qualifying period of less

    than seven years, it would be in the teeth of the constitutional

    embargo. Apart from the fact that this is an amendment which is

    necessitated by reason of the acceptance of the Shetty

    Commission in the All India Judges' case by the Apex Court,

    on an interpretation of the provision, we do not see any warrant

    for the contention that Article 233(2) will not brook any

    prescription as to age as is sought to be done. The legislative

    power is undoubtedly present. In fact, if we were to accept the

    case of the petitioners, then it would rob the legislative body of

    power to provide for many of the other indispensable

    qualifications for appointment to a post of vital importance,

    namely the post of a District Judge. We do not think that an

    amendment to Article 233(2) was indispensable to sustain the

    validity of the amended Rule.        We do not think that the

    petitioners have made out any case to declare the amendment to

    WPC.2021/09R & CONN.CASES       34

    the Rule as bad. Certainly, the amendment which is based on

    the recommendation of the Shetty Commission and accepted by

    the Apex Court and also recommended by the High Court,

    cannot be found to be irrational or arbitrary in any manner. We

    also do not find any merit in the contention that it is ultra vires

    Article 233 of the Constitution.

         21. Whether the Amendment is curative, clarificatory

              and declaratory in nature and hence retrospective ?

         We are of the view that the amendment cannot be

    considered to be declaratory or curatory or clarificatory. The

    Rules as they stood at the time of issuance of the Notification

    did not provide for any minimum or maximum age. All that it

    declared was that the candidate should not have crossed

    fortyseven years of age. Thus, any person who was below

    fortyseven years of age was considered eligible as per the Rules,

    to be selected and appointed as a District Judge. About this, we

    cannot hold that the matter could be said to be in the region of

    any doubt. There was no room for any ambiguity. There was

    no omission in the Rules as they stood. It is no doubt true that

    WPC.2021/09R & CONN.CASES         35

    the High Court and the State of Kerala were bound to implement

    the prescription of age limit. But, the delay in amending the

    Rules and finally deciding to amend the Rules without

    retrospective effect only expressly (the Rules as amended were

    to come into force at once, spelling out prospectivity alone),

    cannot have the effect of the amendment bearing operation into

    the past.

          22. In S.S. Grewal v. State of Punjab And Others (1993

    Supp.(3) SCC 234), the Apex Court was dealing with the

    question relating to inter se seniority between direct recruits

    drawn from general quota and the reserve quota as also the

    question of sub-reservation and sub-roster. Letter dated April 8,

    1980 gave certain clarifications on certain doubts created by

    some Departments in the matter of implementation of the

    instructions contained in an earlier letter. It is in this context

    that the Court took the view that the clarifications contained in

    the later letter must be read as part of the instructions contained

    in the earlier letter and in this context, it was, inter alia, held as

    WPC.2021/09R & CONN.CASES         36

    follows:

                 "In this context, it may be stated that

           according      to    the   principles   of   statutory

           construction, a Statute which is explanatory or

           clarificatory of the earlier enactment is usually

           held to be retrospective (See Craies on Statute Law,

           7th Edition, Page 58.)"



    In S.B. Bhattacharjee v. S. D. Majumdar And Others ((2007) 10

    SCC 513), the Court was dealing with the interpretation of an

    Office Memorandum relating to the manner in which the ACRs

    are to be considered for promotion to the post of Executive

    Engineer. Government issued a clarification pending the Writ

    Petition filed before the Court regarding the said provision. The

    Court after repelling the contention that the clarification was in

    the teeth of the illustration given in the Office Memorandum and

    after adverting to S.S. Grewal's case (supra), held that the

    clarification being explanatory and/or clarificatory, will have a

    retrospective effect. In Devadas v. Dy. Labour Commissioner

    (1995 (2) KLT 366), the facts were as follows:

    WPC.2021/09R & CONN.CASES       37

         This Court had held that a Secretary or Branch Manager

    of a Co-operative Society will not be entitled to claim

    subsistence allowance under the Payment of Subsistence

    Allowance Act. A proviso was added in rule 198 (6) of the Co-

    operative Societies Rules, to the effect that an employee not

    coming under the purview of the Payment of Subsistence

    Allowance Act, 1972 shall be entitled to subsistence allowance

    at the rate admissible to State Government employees under the

    Kerala Service Rules.        The proviso was introduced on

    26.6.1990. The contention of the employee based on the said

    proviso was sought to be overcome by pointing out that the

    claim was for various periods prior to the introduction of the

    proviso. The Court held, inter alia, as follows:

                "4. The newly added proviso was introduced

          into the Rules in exercise of the powers conferred

          by S. 109 of the Co-operative Societies Act read

          with S. 80(3) thereof. The Explanatory Note states

          that as per the provisions in the Kerala Payment of

          Subsistence Act, 1972 an employee in a managerial

          cadre or an administrative capacity is not entitled

    WPC.2021/09R & CONN.CASES      38

         to subsistence allowance and so, the proposal is to

         amend the rules so as to enable payment of

         subsistence allowance to an employee not covered

         by the above said Act. As the amendment has been

         introduced in the wake of the decisions of this Court

         holding that Secretary or Branch Manager of a Co-

         operative Society will not be entitled to claim

         subsistence allowance as provided under the

         Payment of Subsistence Allowance Act, it can only

         be construed as retrospective as it is declaratory in

         nature.       Presumption     against   retrospective

         operation is not applicable to declaratory statutes.

         As the proviso has been introduced to the Rules

         with a view to declare that an employee in a

         managerial cadre or having administrative capacity

         is also entitled to subsistence allowance under the

         Payment of Subsistence Allowance Act, 1972, its

         effect is certainly declaratory and so cannot be but

         retrospective.    It cannot be doubted that the

         introduction of the newly added proviso was really

         for removal of doubts and also for a definite and

         positive clarification.  It is settled law that if a

         statute is curative or merely declaratory of the

         previous law retrospective operation is generally

    WPC.2021/09R & CONN.CASES      39

         intended. (See Channan Singh v. Jai Kour (AIR

         1970 SC 349 para.5).       As the proviso has been

         added to get over the difficulty encountered by an

         employee in a managerial cadre or administrative

         capacity of the society being not entitled to

         subsistence allowance under the Payment of

         Subsistence Allowance Act and as it can be

         construed only as declaratory in nature, we hold

         that it has retrospective operation."

         23. We have already noted that the extant Rules prevailing

    on the date of the Notification as also the Notification clearly

    provided for restriction as to age only by declaring that the

    candidate should not exceed fortyseven years of age. In Shri

    Chaman Singh And Another v. Srimathi Jaikaur ((1969) 2 SCC

    429), the Court considered whether the Punjab Pre-emption

    Amendment Act 1964 was clarificatory or declaratory. The Suit

    was based on the right of pre-emption. The Suit was brought by

    a daughter of one Santa Singh who died leaving behind him a

    widow who sold certain lands. The respondent/plaintiff was

    daughter from another wife.     The Court, inter alia, held in

    WPC.2021/09R & CONN.CASES       40

    paragraphs 5 and 6 as follows:

               "5. It appears to us that the Amendment Act

          of 1964 was merely of a clarificatory or

          declaratory nature. Even in the absence of the

          words which were inserted by the Amendment Act

          of 1964 in Section 15(2)(b), the only possible

          interpretation and meaning of the words "in the

          son or daughter of such female" could have

          reference to and cover the son or daughter of the

          husband of the female.

               6. If the above discussion is kept in view,

          there is no difficulty in attributing a retroactive

          intention to the Legislature when the Amendment

          Act of 1964 was enacted. It is well settled that if a

          statute is curative or merely declares the previous

          law retroactive operation would be more rightly

          ascribed to it than the legislation which may

          prejudicially affect past rights and transactions."

    In Statute Law by Craies, which has been approved in Central

    Bank of India v. Their Workmen (AIR 1960 SC 12), the learned

    Author would state as follows:

               "For modern purposes, a declaratory Act

          may be defined as an Act to remove doubts existing

    WPC.2021/09R & CONN.CASES       41

          as to the common law, or the meaning or effect of

          any statute.   Such Acts are usually held to be

          retrospective."

          24. The unamended Rules as also the terms of the

    Notification created legal rights in favour of all those who were

    within the age limit of fortyseven years, to apply and to be

    considered for selection.     There can be no room for any

    ambiguity, nor can there be any room for invoking the principle

    of the amendment being a declaratory Statute.

          25.   Whether there is an axiomatic amendment of the

                statutory Rule by virtue of the decision of the Apex

               Court in the Judges' case (supra) ? Whether the

             aforesaid Judgment amounts to a declaration of law ?

          The amendment of a statutory rule is a legislative exercise.

    No doubt, the legislative power is normally exercised by the

    Legislative Bodies. But, legislative power is also exercised by

    the other Organs of the State. The Rules were originally framed

    under the provisions of Article 309 of the Constitution. On the

    enactment of the Kerala Public Services Act, 1968, the source of

    legislative power can be said to be the said enactment. It is

    WPC.2021/09R & CONN.CASES       42

    professedly under the said Act that the amendment in question

    has been enacted. The proposal for the amendment emanating

    from the High Court in the year 2006, for some reason, the

    matter did not receive the immediate attention it truly deserved

    and it is only in the middle of 2008, as already noticed, that the

    amendment came into force. Thus, both the High Court and the

    Government are privy to the Rule making process in amending

    the Rule in question.

         26. The Shetty Commission undoubtedly did recommend

    the prescription of a minimum age for appointment as a District

    Judge at thirtyfive years. So also, it recommended the maximum

    age of fortyfive years. Nobody can have a case that the mere

    recommendation of the Shetty Commission had the effect of

    amending the Statutory Rule. Undoubtedly, the Supreme Court

    must be treated as having accepted the recommendation of the

    Shetty Commission as regards the prescription of the minimum

    and the maximum age for the post of District Judge. A perusal

    of the Judgment in the All India Judges' case (supra), would

    WPC.2021/09R & CONN.CASES        43

    make it clear that the Apex Court has directed the

    implementation of the recommendations. Equally, the Apex

    Court had in its contemplation, amendment to the Rules

    wherever they were necessary. A perusal of paragraph 38 is

    necessary in this regard. It reads as follows:

               "38.     We are aware that it will become

         necessary for service and other rules to be

         amended so as to implement this judgment.

         Firstly, with regard to the pay scales, the Shetty

         Commission has approved the pay scales with

         effect from 1-1-1996 but has directed the same to

         be paid with effect from 1-7-1996. The pay scales

         as so approved by us are with effect from 1-7-

         1996. However, it will take some time for the

         States to make necessary financial arrangements

         for the implementation of the revised pay scales.

         The Judicial Officers shall be paid the salary in

         the revised pay scales as approved by this Court

         with effect from 1-7-2002. The arrears of salary

         between 1-7-1996to 30-6-2002, will either be paid

         in cash or the States may make the payment by

         crediting the same in the provident fund account

         of the respective Judicial Officers. Furthermore,

    WPC.2021/09R & CONN.CASES        44

          the payment by credit or otherwise should be

          spread over between the years 1-7-1996 to 30-6-

          2002 so as to minimise the income tax liability

          which may be payable thereon. In calculating the

          arrears, the Government will, of course, take into

          account the interim relief which had been granted

          and drawn by the Judicial officers. The amount to

          be credited in the provident fund account would

          also be after deducting the income tax payable."

          ((2002) 4 SCC 247).

    The Apex Court has not declared that from the date of the

    Judgment, the minimum age of a person to be appointed as a

    District Judge will be thirtyfive years of age or that the

    maximum age cannot exceed fortyfive years. It is not directed

    that the age limit as aforesaid shall come into force from the date

    of the Judgment. It is also not directed that the age limits

    recommended by the Shetty Commission will come into force

    on a specified future date. No doubt, it has in paragraph 39

    directed as follows:

                "39.   The States as well as the Union of

          India shall submit their compliance report by 30-

    WPC.2021/09R & CONN.CASES       45

          9-2002.    Case be listed thereafter for further

          orders."

         27. It is necessary also to advert to certain decisions in this

    context. In High Court of Judicature at Bombay v. Brij Mohan

    Gupta (Dead) through Lrs. and Another ((2003) 2 SCC 390)

    relied on by Shri A. Mohamed Mustaque, the question which

    arose for consideration arose as follows:

         The appellant was a member of the Judicial Service. The

    Statutory Rule provided that a direct recruit could continue so as

    to have a minimum service of ten years so as to draw pension.

    Of course, there was an outer limit of sixty years for such

    continuance. The Apex Court had in its decision directed that

    the District Judges could continue till they attain the age of sixty

    years. However, it was hedged in with the limitation that the

    High Court was to screen such candidates for the purpose of

    deciding as to whether they could be permitted to continue till

    they attain the age of sixty years. Efficiency, integrity and other

    aspects were to be looked into. The High Court found that the

    appellant should not be permitted to continue. It was in this

    WPC.2021/09R & CONN.CASES       46

    context that the Apex Court proceeded to hold as follows:

                "11. In our view, the exercise of setting up a

          committee     by     the    Chief     Justice,   the

          recommendation made by the Committee and also

          finally the administrative order passed by the High

          Court, were strictly in terms of Judges' case I and

          Judges' case II. In fact, by virtue of Judges' case I

          and    Judges'  case    II,  Rule   10(3)(c)   stood

          subrogated. We are, therefore, of the view that

          the judgment under challenge is not in conformity

          with the aforesaid decisions and is liable to be set

          aside."

    In this regard, we must at once notice what the Apex Court had

    decided and directed in All India Judges' Association v. Union

    of India ((1993) 4 SCC 288). It is relevant to extract paragraphs

    30 and 31 which we do as follows:

                "30. There is, however, one aspect we should

          emphasise here.      To that extent, the direction

          contained in the main judgment under review shall

          stand modified. The benefit of the increase of the

          retirement age to 60 years, shall not be available

          automatically to all Judicial Officers irrespective of

    WPC.2021/09R & CONN.CASES       47

          their past record of service and evidence of their

          continued utility to the judicial system. The benefit

          will be available to those who, in the opinion of the

          respective High Courts, have a potential for

          continued useful service. It is not intended as a

          windfall for the indolent, the infirm and those of

          doubtful integrity, reputation and utility.       The

          potential for continued utility shall be assessed and

          evaluated by appropriate Committees of Judges of

          the respective High Courts constituted and headed

          by the Chief Justices of the High Courts and the

          evaluation shall be made on the basis of the

          Judicial Officer's past record of service, characte

          rolls, equality of judgments and other relevant

          matters.

                31.  The High Court should undertake and

          complete the exercise in case of Officers about to

          attain the age of 58 years well within time by

          following the procedure for compulsory retirement

          as laid down in the respective Service Rules

          applicable to the judicial Officers. Those who will

          not be found fit and eligible by this standard should

          not be given the benefit of the higher retirement age

          and should be compulsorily retired at the age of 58

    WPC.2021/09R & CONN.CASES        48

           by following the said procedure for compulsory

           retirement.    The exercise should be undertaken

           before the attainment of the age of 58 years even in

           cases where earlier the age of superannuation was

           less than 58 years. It is necessary to make it clear

           that this assessment is for the purpose of finding out

           the suitability of the concerned Officers for the

           entitlement of the benefit of the increased age of

           superannuation from 58 years to 60 years. it is in

           addition to the assessment to be undertaken for

           compulsory     retirement    and    the   compulsory

           retirement at the earlier stage/s under the respective

           Service Rules."

    A perusal of paragraphs 30 and 31 would make it clear that the

    Apex Court clearly had given unambiguous and specific

    directions. To the extent that the Statutory Rule did not square

    with the aforesaid directions, it was clear that the Rule had died

    a natural death.

         28. Now, we would turn to the decision which is brought

    to our notice by Shri K. Jayakumar, reported in Maharashtra

    State Judges' Association And Others v. Registrar General, High

    WPC.2021/09R & CONN.CASES       49

    Court of Judicature at Bombay And Another ((2009) 1 SCC

    569). It is at once necessary to refer to paragraph 24 and extract

    the same as follows:

                 "24. Shetty Commission, as a corollary to its

           pay scale recommendation, recommended that

           there should be only three cadres:District Judges,

           Civil Judge (Senior Division) and Civil Judge

           (Junior Division), and multiple categories should

           be avoided. But, the recommendation made in the

           report dated11-11-1999 was not binding, until it

           was accepted by this Court and rules were framed

           in terms of it.    The said recommendation was

           accepted in all India Judges' Assn.(III) by judgment

           dated 21-3-2002. By the said order, this Court

           granted time up to 31-3-2003 to implement the said

           recommendations. Until the recommendation was

           accepted    and     rules    were      framed,    the

           integration/caderisation was a nebulous concept

           inapplicable of being claimed or enforced as a

           right."

                                       (Emphasis supplied)

    It is also necessary to bear in mind at this juncture paragraph 38

    of the All India Judges' case (supra), which we have already

    WPC.2021/09R & CONN.CASES       50

    extracted. Therefore, the aforesaid view taken by the Apex

    Court does appear to clearly probabilise and reinforce the case

    of the petitioners that the Apex Court itself contemplated

    appropriate amendments to the Statutory Rules to breathe life

    into certain recommendations made by the Shetty Commission

    which it had accepted. In other words, in the absence of any

    specific directions indicating that the Apex Court intended that

    the prescription of age limits came into force without anything

    more, to be done by the legislative body, we are of the firm

    view that the decision of the Apex Court did not amount to an

    amendment of the Statutory Rule.           No doubt, the Court

    accepted the recommendation and directed the implementation

    of the same. But, we are of the view that the Judgment of the

    Apex Court did not amount to a declaration of law in the sense

    that the Court did not intend that its acceptance of the restriction

    as to age contained in the Shetty Commission Report is to be

    effective without an amendment to the Rules, or that it was to

    operate from the date of the Judgment or from any specified

    WPC.2021/09R & CONN.CASES       51

    future date. The fact that no such perception was entertained

    either by the High Court or the State Government, is clear from

    two circumstances:

          In the first place, the Notification was issued by the High

    Court in the year 2007, without prescribing the minimum or

    maximum age limit as was contained in the Shetty Commission

    and was accepted by the Supreme Court. The prescription was

    strictly in tune with the Rules as they stood prior to the

    amendment in the year 2008. If the Rules had stood amended,

    by virtue of the decision of the Apex Court in the All India

    Judges' case, certainly, such an indication would have been

    reflected in the Notification.      Still further, the fact of an

    amendment actually being carried out to the Rules to effectuate

    the decision of the Apex Court and bringing it into force

    prospectively only, indicates that the contemplation of both the

    High Court and the State Government was that an amendment

    was inevitable. We cannot also overlook the argument of the

    learned counsel for the petitioners that if the Judgment of the

    WPC.2021/09R & CONN.CASES       52

    Apex Court must be understood as having amended the Rules,

    every selection made subsequent to it would have to satisfy

    every aspect which was recommended by the Shetty

    Commission and which was accepted by the Apex Court.

          29. Finding on the Contentions of Shri P.C.

              Sasidharan, learned counsel for the party

              respondents:

          We are not impressed by the contention of Shri P.C.

    Sasidharan on the basis of the decision of the learned Single

    Judge in Ajith v. State of Kerala (2007 (2) KLT 1044). Therein,

    the learned Single Judge held, inter alia, as follows:

                "39. By the directions in All India Judges'

          Association 2002, the State Governments and the

          High Courts stood directed to amend their Rules.

          The constitutional support for those directions

          emanate, particularly, out of Arts. 32 and 141 of

          the Constitution. Along with that, those directions

          get the plenary power of the Apex Court, supported

          by the law laid in All India Judges' Association

          1993 regarding the scope and authority of the Apex

          Court to issue directions commanding the making

    WPC.2021/09R & CONN.CASES      53

          of the Rules as dictated by the Apex Court, in so far

          as it relates to the field of judiciary. Therefore,

          notwithstanding the procedure provided for in Art.

          234, the State Government and the High Courts

          were obliged by the directions of the Apex Court to

          have the Rules relating to judicial services of the

          respective "States modified in accordance with the

          directions contained in paragraph 32 of All India

          judges' Association 2002, as noticed above. Hence,

          any opinion rendered by the High Court under Art.

          234 and any aid and advice, on the subject, to the

          Governor in terms of Art. 163 of the Constitution,

          would be of no avail, unless such opinions are in

          conformity with the directions of the Apex Court as

          noticed above.     Therefore, notwithstanding the

          question whether there was a complete consultation

          following the mandate of Art. 234, the State

          Government and the High Court were obliged to

          amend the Service Rules as noticed above, in terms

          of the directions in paragraph 32 of the All India

          Judges' Association 2002."

                                     (Emphasis supplied)

    In that case, the learned Single Judge was concerned with the

    WPC.2021/09R & CONN.CASES     54

    vires of a provision on the score that there was no consultation

    in its enactment with the High Court. It is in the context of the

    decision of the Apex Court that it was found that though there

    was no consultation, the Rule need not be overturned, as it

    would be a futile exercise. This was for the reason that even if

    consulted, it was inconceivable as to how the High Court could

    have offered anything different or useful in the light of the

    decision of the Apex Court. In other words, even if there was

    consultation, it would have been a futile exercise. Thus, on the

    one hand, it was found that there was no consultation, but it is,

    on the other hand, found that any consultation would be of no

    use. It was in such circumstances that the learned Single Judge

    took the view that the decision of the Apex Court removed the

    shadow over the validity of an otherwise invalid Rule. We do

    not see how the said Judgment can apply in the facts of the

    present cases.

          30. As far as the contention based on the amendment

    being relevant to vacancies which arose after the amendment is

    WPC.2021/09R & CONN.CASES       55

    concerned, it is to be noted that as is clear from the Notification

    in question issued in 2007, there were six vacancies prior to the

    amendment. Learned counsel for the petitioners also would

    contend that their claim is in respect of the six vacancies. As

    regards vacancies which have arisen after the amendment is

    concerned, it would appear to be beyond the pale of the

    controversy raised in these cases.

         31. Finding on the Contentions of Shri Elvin Peter
             P.J., learned counsel for the party respondents:

         The argument of Shri Elvin Peter, learned counsel

    appearing on behalf of the party respondents based on the

    decision in State of Bihar And Another v. Bal Mukund Sah And

    Others ((2000) 4 SCC 640), at first blush sounds attractive. But,

    on a deeper scrutiny, we are of the view that the learned counsel

    may not be justified in canvassing for the wide proposition that

    the High Court and the Government are totally free from the

    trammels of legislative power. As already noted, the question

    which arose for consideration was the validity of the law made

    by the Legislature of the State of Bihar, providing for

    WPC.2021/09R & CONN.CASES       56

    reservation for direct recruitment. As we have already noted,

    the Apex Court took the view that the general sweep of Article

    309 has to be read subject to the complete code regarding

    appointment of the District Judges and Judges in the

    Subordinate Judiciary. A candidate unless he was recommended

    by the High Court under Article 233, could not be validly

    appointed as a District Judge. In this context, we must refer to

    paragraphs 26, 29, 30, 37 and 45 which read as follows:

               "26. So far as recruitment to the District and

          Subordinate Judiciary is concerned, we have

          therefore, to turn to the twin articles found in

          Chapter VI of Part VI dealing with "subordinate

          courts". The relevant two articles read as under:


                    "233.      Appointment    of   District
              Judges.- (1) Appointment of persons to be,
              and the posting and promotion of, District
              Judges in any State shall be made by the
              Governor of the State in consultation with
              the High Court exercising jurisdiction in
              relation to such State.
                    (2) A person not already in the service
              of the Union or of the State shall only be
              eligible to be appointed a District Judge if
              he has been for not less than seven years an

    WPC.2021/09R & CONN.CASES       57

              advocate or a pleader and is recommended
              by the High Court for appointment.

                         *           *          *

                    234.   Recruitment of persons other
              than District Judges to the Judicial
              Service.- Appointments of persons other
              than District Judges to the Judicial Service
              of a State shall be made by the Governor of
              the State in accordance with rules made by
              him in that behalf after consultation with the
              State Public Service Commission and with
              the High Court exercising jurisdiction in
              relation to such State."


         Article    233 dealing with appointment of District

         Judges, on its own express terminology projects a

         complete scheme regarding the appointment of

         persons to the District Judiciary as District judges.

         In the present appeals, we are concerned with direct

         recruitment to the cadre of District Judges and hence

         sub-article (2) of Article 233 becomes relevant.

         Apart from laying down the eligibility criterion for

         candidates to be appointed from the Bar as direct

         District judges the said provision is further hedged

         by the condition that only those recommended by the

         High Court for such appointment could be appointed

         by the Governor of the State.            Similarly, for

    WPC.2021/09R & CONN.CASES      58

         recruitment of judicial Officers other than District

         Judges to the Judicial Service at lower level, a

         complete scheme is provided by Article 234 wherein

         the   Governor    of   the  State can    made such

         appointments in accordance with the rules framed by

         him after consulting with the State Public Service

         Commission and with the High Court exercising

         jurisdiction in relation to such State. So far as the

         Public Service Commission is concerned, as seen

         from Article 320, the procedure for recruitment to the

         advertised posts to be followed by it is earmarked

         therein.    But, the role of the Public Service

         Commission springs into action after the posts in a

         cadre are required to be filled in by direct

         recruitment and for that purpose due intimation is

         given to the Commission by the State authorities.

         They have obviously to act in consultation with the

         High Court so far as recruitment to posts in the

         Subordinate Judiciary is concerned. Of course, it

         will be for the High Court to decide how many

         vacancies in the cadre of District Judges and

         Subordinate Judges are required to be filled in by

         direct recruitment so far as the District Judiciary is

         concerned and necessarily only by direct recruitment

    WPC.2021/09R & CONN.CASES       59

         so far as the Subordinate Judiciary is concerned.

         This prime role of the High Court becomes clearly

         discernible from article 235 which deals with the

         control of the High Court over the Subordinate

         Judiciary and also of subordinate courts. The said

         article provides as under:


                         "235: Control over subordinate

              courts - The Control over District Courts

              and courts subordinate thereto including

              the posting and promotion of, and the grant

              of leave to, persons belonging to the

              Judicial Service of a State and holding any

              post inferior to the post of District Judge

              shall be vested in the High Court, but

              nothing in this article shall be construed as

              taking away from any such person any right

              of appeal which he may have under the law

              regulating the conditions of his service or

              as authorising the High Court to deal with

              him otherwise than in accordance with the

              conditions of his service prescribed under

              such law."

         It is in the light of the aforesaid relevant scheme of

    WPC.2021/09R & CONN.CASES      60

         the Constitution that we now proceed to tackle the

         main controversy posed for our consideration.

               29. The first part of Article 235 itself lays down

         that it is for the High Court to control the District

         Courts and courts subordinate thereto and in

         exercise of that control vesting in the High Court,

         regulation of posting and promotions and granting of

         leave to persons belonging to the Judicial Services

         has to be done by the High court. It is, of course,

         true that in the second part of Article 235 judicial

         Officers already appointed to the service have their

         statutory right of appeal and the right to be dealt

         with regarding other service conditions as laid down

         by any other law for the time being in force, expressly

         protected. But, these provisions of the second part

         only enable the Governor under Article 309, in the

         absence of any statutory enactment made by the

         competent Legislature for regulating the conditions

         of service of judicial Officers who are already

         recruited and have entered and become part and

         parcel of the State service, to promulgate appropriate

         rules on the subject. But, so far as the entry points

         are concerned, namely recruitment and appointment

         to the posts of Presiding Officers of the courts

    WPC.2021/09R & CONN.CASES     61

         subordinate to the High Courts, only Articles 233

         and 234 would govern the field. Article 234 lays

         down the procedure and the method of recruiting

         judicial   Officers  at   grass-root    level  being

         Subordinate Judges and Munsiffs as laid down by the

         1955 Rules.    These Rules are also framed by the

         Governor of Bihar in exercise of his powers under

         Article 234 obviously after the consultation of the

         High Court and the Public Service Commission.

         Rules regarding the procedure of selection to be

         followed by the State Public Service Commission as

         found in Rules 4 to 17 deal with the method to be

         adopted by the Public Service Commission while

         selecting candidates who offer their candidature for

         the posts advertised to be filled in.    These Rules

         obviously require consultation with the Commission

         on the procedural aspect of selection process. But,

         so far as the High Court is concerned, its

         consultation becomes pivotal and relevant by the

         thrust of Article 233 itself as it is the High Court

         which has to control the candidates, who ultimately

         on getting selected, have to act as Judges at the

         lowest level of the Judiciary and whose posting,

         promotion and grant of leave and other judicial

    WPC.2021/09R & CONN.CASES      62

         control would vest only in the High court, as per

         Article 235 first part, once they enter the Judicial

         Service at grass-root level. Thus, consultation of the

         Governor with the High Court under Article 234 is

         entirely of a different type as compared to his

         consultation with the Public Service Commission

         about the procedural aspect of selection. So far as

         direct recruitment to the posts of District Judges is

         concerned, Article 233 sub-article (2) leaves no room

         for doubt that unless the candidate is recommended

         by the High Court, the Governor cannot appoint him

         as a District Judge. Thus, Articles 233 and 234,

         amongst them, represent a well-knit and complete

         scheme regulating the appointments at the apex level

         of the District Judiciary, namely, District Judges on

         the one hand and Subordinate Judges at the grass-

         root level of the Judiciary subordinate to the Distrct

         Court. Thus, the Subordinate Judiciary represents a

         pyramidical structure. At the base level, i.e. grass-

         root level are the Munsiffs and Magistrates whose

         recruitment is governed by Article 234. That is the

         first level of the Judiciary.     The second level

         represents already recruited judicial Officers at

         grass-root level, whose working is controlled by the

    WPC.2021/09R & CONN.CASES      63

         High Court under Article 235 first part. At the top of

         this pyramid are the posts of District Judges. Their

         recruitment to these posts is governed by Article 233.

         It is the third and the apex level of the Subordinate

         Judiciary.

               30. It has also to be kept in view that neither

         Article 233 nor Article 234 contains any provision of

         being subject to any enactment by the appropriate

         Legislature as we find in Articles 98, 146, 148, 187,

         229(2) and 324(5).     These latter articles contain

         provisions regarding the rule-making power of the

         authorities concerned subject to the provisions of the

         law made by Parliament or the Legislature. Such a

         provisions is conspicuously absent in Articles 233

         and 234 of the Constitution of India. Therefore, it is

         not possible to agree with the contention of learned

         counsel for the appellant State that these articles only

         deal with the rule-making power of the Governor, but

         do not touch the legislative power of the competent

         Legislature. It has to be kept in view that once the

         Constitution provides a complete code for regulating

         recruitment and appointment to the District Judiciary

         and to the Subordinate Judiciary, it gets insulated

         from the interference of any other outside agency.

    WPC.2021/09R & CONN.CASES    64

         We have to keep in view the scheme of the

         Constitution and its basic frame work that the

         Executive has to be separated from the Judiciary.

         Hence, the general sweep of Article 309 has to be

         read subject to this complete code regarding

         appointment of District Judges and Judges in the

         Subordinate Judiciary.

               36.   It becomes, therefore, obvious that no

         recruitment to the post of a District Judge can be

         made by the Governor without recommendation

         from the High Court. Similarly, appointment4s to

         the Subordinate Judiciary at grass-root level cannot

         be made by the Governor save and except according

         to the rules framed by him in consultation with the

         High Court and the Public Service Commission.

         Any statutory provision bypassing consultation with

         the High Court and laying down a statutory fiat as is

         tried to be done by enactment of Section 4 by the

         Bihar Legislature has got to be held to be in direct

         conflict   with   the  complete   code    regarding

         recruitment and appointment to the posts of the

         District Judiciary and the Subordinate Judiciary as

         permitted and envisaged by Articles 233 and 234 of

         the Constitution.     The impugned Section 4,

    WPC.2021/09R & CONN.CASES       65

         therefore, cannot operate in the clearly earmarked

         and forbidden field for the State Legislature so far

         as the topic of recruitment to the District Judiciary

         and the Subordinate Judiciary is concerned. That

         field is carved out and taken out from the operation

         of the general sweep of Article 309.


         37. It is, of course, true as laid down by a catena of

         decisions of this Court, that topics of constitution of

         courts and services, laying down of rules regarding

         the conditions of service other than those expressly

         placed within the jurisdiction of the High Court by

         Articles 233 and 235, providing for age of

         superannuation or other recruitment benefits to

         judicial Officers, fixing pay scales, diversification

         of cadres may form part of the general recruitment

         and conditions of services falling within the spheres

         of the Governor's rule-making power under Article

         309 read with the second part of Article 233 or may

         even be made the subject-matter of legislation by

         the competent Legislature in exercise of its

         legislative powers under Entry 41 of List II or for

         that matter Entry 11-A of List III of the Seventh

         Schedule. But, save and except this permitted field,

    WPC.2021/09R & CONN.CASES      66

         the State Legislature cannot enter upon the

         forbidden field expressly reserved for consultation

         with the High Court by the thrust of Articles 233

         and 234 so far as the initial entry point of

         recruitment to the Judicial Service at grass-root

         level or at the apex level of the District Judiciary is

         concerned. A three-Judge Bench of this Court in

         the case of A. Panduranga Rao v. State of A.P.

         speaking through Untwalia, J., considered the

         question whether anyone can be appointed by the

         Governor as a District Judge without being

         recommended by the High Court. Relying on the

         Constitution Bench decision of this Court in

         Chandra Mohan case in para 7 of the Report,

         observations were made as under: (SCC p.712):

                      "There   are    two    sources    of
                 recruitment, namely, (i) service of the
                 Union or the State, and (ii) Members of
                 the Bar. The said Judges from the first
                 source are appointed in consultation
                 with the High Court and those from the
                 second source are appointed on the
                 recommendation of the High Court."

         And thereafter the following pertinent observations

         were made in para 8, which read as under: (SCC

         p.712):

                      "8.    A candidate for direct

    WPC.2021/09R & CONN.CASES       67

                recruitment from the Bar does not
                become eligible for appointment without
                the recommendation of the High Court.
                He becomes eligible only on such
                recommendation under clause (2) of
                Article 233.    The High Court in the
                Judgment     under   appeal    felt some
                difficulty in appreciating the meaning of
                the word "recommended".          But, the
                literal meaning given in the Concise
                Oxford Dictionary is quite simple and
                apposite. It means "suggest as fit for
                employment". In case of appointment
                from the Bar, it is not open to the
                Government to choose a candidate for
                appointment until and unless his name
                is recommended by the High Court."

                It is, therefore, obvious that the State

          Legislature has no role to play while controlling

          appointments of District Judges under Article 233

          or appointment of Civil Judges to the Subordinate

          Judiciary at grass-root level under the District

          Judiciary and it is only the Governor who is

          entrusted with the said task which he has to

          undertake after consultation with the High Court

          and by framing appropriate rules for recruitment

          to the Judiciary at grass-root level as enjoined by

          Article 234 and can only act on recommendation

          by the High Court for direct recruitment from the

          Bar for being appointed as District Judges as laid

    WPC.2021/09R & CONN.CASES         68

            down by Article 233 sub-article (2). There is no

            third method or third authority which can

            intervene in the process or can have its say,

            whether     legislative   authority   or   executive

            authority, as the case may be, independently of the

            complete scheme of such recruitment as envisaged

            by the aforesaid two articles.      It is, therefore,

            difficult to appreciate the contention of learned

            Senior Counsel for the appellant State that

            paramount     legislative   power    of   the  State

            Legislature stands untouched by the scheme of the

            aforesaid two articles of the Constitution."

    It is also necessary to refer to the following passage in paragraph

    (45):

                  "That shows the clear intention of the

            Constitution-makers that so far as question of

            recruitment    and    appointment     to   available

            vacancies in the cadre of District Judges and

            Judges of the Subordinate Judiciary is concerned,

            neither the Legislature, nor the Governor dehors

            any consultation with the High Court, can have

            any independent say."

    WPC.2021/09R & CONN.CASES       69

         32. A perusal of paragraphs 36 and 37 would show that

    there is legislative power to prescribe the relevant conditions of

    service as sanctioned by law.       Undoubtedly, there must be

    consultation with the High Court in this regard. If a Rule is

    made in consultation with the High Court, we feel that it will be

    straining the constitutional provisions, to hold that there is no

    rule making power, either or that the High Court can be free

    from its trammels. We have already held that the Judgment of

    the Apex Court in the All India Judges' case does not amount to

    a declaration of law in the sense that without an amendment of

    the existing Rules, the relevant restrictions in this regard were

    born of their own.     In fact, neither the High Court, nor the

    Government of Kerala have a case that the amendment

    prescribing the age is contrary to the constitutional scheme or is

    impermissible. It was the High Court which made the move in

    2006 to amend the Rules. As far as the argument of Shri Elvin

    Peter based on the decision of the Apex Court in Delhi

    Development Authority v. Skipper Construction Co. (P). Ltd.

    WPC.2021/09R & CONN.CASES        70

    And Another ((1996) 4 SCC 622) is concerned, we do not think

    that the dicta in the said case have any application to the facts of

    the present cases. That was a case where the Apex Court had to

    deal with the conduct of a party before it, namely a builder who

    did not abide by certain orders. The relevant paragraphs are as

    follows:

                "18. The above principle has been applied

          even in the case of violation of orders of injunction

          issued by civil courts. In Clarke v. Chadburn Sir.

          Robert Megarry V-C observed:

                     "I need not cite authority for the
               proposition that it is of high importance that
               orders of the court should be obeyed. Wilful
               disobedience to an order of the court is
               punishable as a contempt of court, and I feel
               no doubt that such disobedience may
               properly be described as being illegal. If by
               such disobedience, the persons enjoined
               claim that they have validly effected some
               charge in the rights and liabilities of others, I
               cannot see why it should be said that
               although they are liable to penalties for
               contempt of court for doing what they did,
               nevertheless those acts were validly done. Of
               course, if an act is done, it is not undone
               merely by pointing out that it was done in
               breach of the law. If a meeting is held in
               breach of an injunction, it cannot be said that

    WPC.2021/09R & CONN.CASES       71

              the meeting has not been held. But, the legal
              consequences of what has been done in
              breach of the law may plainly be very much
              affected by the illegality. It seems to me on
              principle that those who defy a prohibition
              ought not to be able to claim that the fruits of
              their defiance are good, and not tainted by
              the illegality that produced them."

                19. To the same effect are the decisions of the

          Madras and Calcutta High Courts in Century Flour

          Mills Ltd. v. s. suppiah and sujit Pal v. Prabir

          Kumar Sun. In Century Flour Mills Ltd. it was held

          by a Full Bench of the Madras High Court that

          where an act is done in violation of an order of stay

          or injunction, it is the duty of the court, as a policy,

          to set the wrong right and not allow the

          perpetuation of the wrongdoing.         The inherent

          power of the court, it was held, is not only available

          in such a case, but it is bound to exercise it to undo

          the wrong in the interest of justice. That was a case

          where a meeting was held contrary to an order of

          injunction. The Court refused to recognise that the

          holding of the meeting is a legal one. It put back

          the parties in the same position as they stood

          immediately prior to the service of the interim

          order."

    WPC.2021/09R & CONN.CASES        72

    We do not see how it can be of any assistance to the respondents

    in the facts of these cases.      Learned counsel for the party

    respondent then relied on paragraph 40 of the Judgment in the

    All India Judges' case. It reads as follows:

                "40. Any clarification that may be required

           in respect of any matter arising out of this

           decision will be sought only from this Court. The

           proceedings, if any, for implementation of the

           directions given in this Judgment shall be filed

           only in this Court and no other court shall

           entertain them."



    He would contend that in the light of the said decision, the Writ

    Petitions are to be dismissed. We see no merit in the said

    contention. We cannot hold that this case is one which was in

    the contemplation of the Court within the meaning of paragraph

    40. It cannot be said that what the petitioners are seeking is a

    clarification in respect of a matter arising out of the decision.



          33. Finding on the contentions of Shri T.

               Sethumadhavan based on Rule 10(c) of

    WPC.2021/09R & CONN.CASES       73

              the KS & SSR in W.P.(C).No.3543/09:

         The date of birth of the petitioner is 28.11.1957. He is a

    member of Other Backward Community.                  As per the

    Notification and in terms of the Rule then in force, the candidate

    should not have completed fortyseven years of age, as on 1st

    January, 2007. The petitioner had not completed fifty years of

    age as on 1.1.2007. Rule 10(c) of the KS & SSR in so far as it

    relevant is extracted hereunder:

                 "10(c): The upper age limit prescribed in

           the Special Rules shall, unless otherwise stated, be

           raised by 5 years in the case of a candidate

           belonging to any of the Scheduled Castes or adult

           members of such castes and their children when

           such adult members are converted to other regions

           or Scheduled Tribes and by 3 years in the case of

           a candidate belong to any of the Other Backward

           Classes:"

    In terms of this Rule, as the petitioner was entitled to relaxation

    of upper age limit by three years, the petitioner was considered

    eligible. However, the argument based on Rule 10(c) to the

    WPC.2021/09R & CONN.CASES       74

    effect that even after the amendment, he would be eligible is

    misconceived. After the amendment, a person who is above

    fortyfive years of age as on 01.01.2007, will not be considered

    eligible.  However, under the Rule, the petitioner being a

    member of OBC, is entitled to relaxation of three years.

    Applying the said Rule, it can be seen that the petitioner will not

    be eligible. This is for the reason that as per the amended Rule,

    the petitioner cannot be considered eligible for the reason that

    he had completed fortynine years of age as on 28.11.2006 and

    had, therefore, completed fortynine years as on 1.1.2007. The

    age relaxation being only for three years and the maximum age

    being fortyfive years, the petitioner being fortynine years, it is

    clear that the petitioner cannot claim the benefit of Rule 10(c)

    and hence his claim is rejected.

         34. Finding on the contentions of the petitioner

           in W.P.(C).No.14027/09 based on the petitioner

           having completed thirtyfive years of age as on

           the last date for receipt of applications:

         We see no merit in the aforesaid contention of the

    WPC.2021/09R & CONN.CASES       75

    petitioner.   It may be true that the petitioner has become

    thirtyfive years of age before the last date for receipt of

    application. The argument is based on the Clause in the

    Notification which provides that eligibility shall be determined

    with reference to the last date fixed for receipt of the

    applications, as also the decisions of the Apex Court, for the

    proposition that what would be relevant is the last day for

    receipt of applications. The Apex Court in Rekha Chaturvedi

    (Smt). v. University of Rajasthan And Others ((1993) Supp.(3)

    SCC 168), after referring to the perils of uncertainty of date to

    determine possession of qualification, held as follows:

                "Hence, in the absence of a fixed date

           indicated in the advertisement/notification inviting

           applications with reference to which the requisite

           qualifications should be judged, the only certain

           date for the scrutiny of the qualifications will be

           the last date for making the applications."



    This principle is approved in Bhupinderpal Singh And Others v.

    State of Punjab And Others ((2000) 5 SCC 262) and Ashok

    WPC.2021/09R & CONN.CASES        76

    Kumar Sonkar v. Union of India And Others ((2007) 4 SCC 54).

    Per contra, Shri K.R.B. Kaimal, learned senior counsel

    appearing for the High Court relies on the actual provision

    contained in the Notification in this regard. Note 3 to clause (2)

    of the Notification reads as follows:

                 "Save as otherwise provided, eligibility shall

           be determined with reference to the last date fixed

           for the receipt of the applications."



    Clause (3)(b) provides that the candidate should not have

    completed fortyseven years of age as on the first day of January,

    2007. Therefore, learned senior counsel appearing for the High

    Court would contend that even the Notification clearly

    contemplates that as regards the question of age, it has to be

    determined with reference to the first day of January, 2007. He

    submits that this exception made is in conformity with the

    Kerala Public Services (Date for Determination of Age for

    Eligibility for Appointment) Rules, 1977.      Rule 2 reads as

    follows:

    WPC.2021/09R & CONN.CASES      77

           "Date for determination of age for eligibility for

              appointment to Public Services.-


                With effect on and from the commencement of

          these Rules, the Special Rules for the various State

          Services and Subordinate Services, in force at such

          commencement, shall stand modified as if the date

          specified in those Special Rules for determination of

          the age for eligibility for appointment to posts

          included in the various services had been modified

          as the 1st January of the year in which applications

          for appointment to such posts are invited;

                Provided that nothing in this Rule shall apply

          to any appointment to be made in pursuance of any

          notification inviting applications, published before

          the commencement of these Rules."



    Clearly the Rule contemplates eligibility condition as to age

    being determined with reference to the first day of the year in

    which applications are called for, which in this case is

    01.01.2007. Admittedly, as on the said date, the petitioner has

    not completed thirtyfive years of age. The determination of

    WPC.2021/09R & CONN.CASES        78

    eligibility with reference to the last day fixed for receipt of

    applications assumes relevance only if no other date is indicated

    by the Rules and the Notification. The general rule aforesaid

    operates and it is the first day of the year in which applications

    are invited which is relevant.      Thus, it is not open to the

    petitioner to contend that the amendment applies, but the

    petitioner has completed thirtyfive years as provided in law and

    as per the Notification.

                     W.P.(C).No.2302/09:

          35. Whether there is res judicata or constructive res

               judicata by virtue of the Judgment in 2008(4) KLT

               916 ?

          The contention of res judicata or constructive res judicata

    does not appeal to us. There is no written plea as such. The Writ

    Petition culminating in the Judgment of the Division Bench

    arose out of the refusal by the High Court to call the petitioner

    for interview on the ground that the petitioner had been selected

    as a Munsiff. Therefore, what fell for decision was whether the

    refusal to call the petitioner for interview could be justified on

    WPC.2021/09R & CONN.CASES       79

    the said ground. No occasion arose for the Court to consider

    whether the petitioner could be called for interview on the basis

    of the amendment in question. In fact, the High Court has

    apparently called all the other petitioners for the interview. We

    also notice that the Judgment of the Division Bench itself has

    not become final        especially   when    S.L.P.    is  pending

    consideration before the Apex Court. Further more, actually

    there was no specific pleading as such about the plea based on

    the amendment being barred by res judicata or constructive res

    judicata.

               36. What is the effect of the amendment on the

                           rights of the petitioners ?

         This is the most crucial question which arises. We will

    advert to the decisions referred to by Shri K. Jaju Babu, the

    arguments based on which are adopted              by the counsel

    appearing for the other petitioners also.      In A.A. Calton v.

    Director of Education and Another ((1983) 3 SCC 33), the

    appellant called in question the appointment of the second

    respondent as the Principal of an Intermediate College, a

    WPC.2021/09R & CONN.CASES       80

    minority Institution. The selection commenced in the year 1973.

    The Selection Committee recommended the name of the

    appellant also. The Regional Deputy Director did not approve

    the selection. There was a remit to the Selection Committee.

    Thereafter, the second respondent was assigned a higher rank

    than the appellant. There was yet another remit and the Selection

    Committee made a third recommendation.            The appellant

    questioned the selection on the third occasion and the High

    Court quashed the same and the Director of Education was

    directed to make appointment.      The second respondent was

    appointed. This was challenged. It was this Writ Petition which

    was dismissed by the High Court. There was an amendment

    which came into force on 18.8.1975, taking away the power of

    the Director to make an appointment. It is in this context that

    the Court held as follows:

                "At every stage in that process certain rights

          are created in favour of one or the other of the

          candidates.    Section 16-F of the Act cannot,

          therefore, be construed as merely a procedural

    WPC.2021/09R & CONN.CASES      81

         provision. It is true that the legislature may pass

         laws with retrospective effect subject to the

         recognised constitutional limitations.     But, it is

         equally well settled that no retrospective effect

         should be given to any statutory provision so as to

         impair or take away an existing right, unless the

         statute    either  expressly    or   by    necessary

         implication directs that it should have such

         retrospective effect. In the instant case admittedly,

         the proceedings for the selection had commenced

         in the year 1973 and after the Deputy Director

         had disapproved the recommendations made by

         the Selection Committee twice the Director

         acquired the jurisdiction to make an appointment

         from amongst the qualified candidates who had

         applied for the vacancy in question.         At the

         instance of the appellant himself in the earlier writ

         petition filed by him, the High Court had directed

         the Director to exercise that power. Although the

         Director in the present case exercised that power

         subsequent to August 18, 1975 on which date the

         amendment came into force, it cannot be said that

         the selection made by him was illegal since the

         amending law had no retrospective effect. It did

    WPC.2021/09R & CONN.CASES      82

          not have any effect on the proceedings which had

          commenced prior to August 18, 1975."

    In P. Mahendran And Others v. State of Karnataka And Others

    ((1990) 1 SCC 411), the Karnataka General Service (Motor

    Vehicles Branch) (Recruitment) Rules, 1962 prescribed

    Diploma in Automobile Engineering or Mechanical Engineering

    as the minimum qualification for appointment of Motor Vehicle

    Inspectors. In 1983, the Commission invited applications from

    holders of Diploma in Automobile Engineering or Mechanical

    Engineering. Interview letters were issued and the Commission

    commenced the interview. The High Court of Karnataka issued

    orders of stay and the interviews could be completed only by

    June, 1987 and the result was published in July, 1987 in the

    Gazette. However, the Recruitment Rules were amended in

    May, 1987 omitting Diploma in Mechanical Engineering from

    the prescribed qualifications.    The Administrative Tribunal

    quashed the select list as well as the relevant advertisement on

    the basis of the amendment. The Apex Court, inter alia, after

    referring to the decision in Calton's case (supra) also, held as

    WPC.2021/09R & CONN.CASES      83

    follows:

                "In view of these facts the sole question for

          consideration is as to whether the amendment

          made in the Rules on May 14, 1987 rendered the

          selection illegal. Admittedly, the amending Rules

          do not contain any provision enforcing the

          amended Rules with retrospective effect. In the

          absence of any express provision contained in the

          amending Rules, it must be held to be prospective

          in nature.   The Rules which are prospective in

          nature cannot take away or impair the right of

          candidates    holding   Diploma    in  Mechanical

          Engineering as on the date of making appointment

          as well as on the date of scrutiny by the

          Commission, they were qualified for selection and

          appointment. In fact, the entire selection in the

          normal course would have been finalised much

          before the amendment of Rules, but for the interim

          orders of the High Court. If there had been no

          interim orders, the selected candidates would have

          been appointed much before the amendment of

          Rules.    Since the process of selection had

          commenced and it could not be completed on

          account of the interim orders of the High Court,

    WPC.2021/09R & CONN.CASES        84

          the appellants' right to selection and appointment

          could not be defeated by subsequent amendment of

          Rules.

                It is well settled rule of construction that

          every statute or statutory rule is prospective unless

          it is expressly or by necessary implication made to

          have retrospective effect. Unless there are words

          in the statute or in the Rules showing the intention

          to affect existing rights the rule must be held to be

          prospective. If a rule is expressed in language

          which is fairly capable of either interpretation, it

          ought to be construed as prospective only. In the

          absence of any express provision or necessary

          intendment the rule cannot be given retrospective

          effect except in matter of procedure.            The

          amending Rules of 1987 do not contain any

          express    provision     giving    the   amendment

          retrospective effect nor there is anything therein

          showing the necessary intendment for enforcing

          the rule with retrospective effect.       Since the

          amending Rules were not retrospective, it could

          not adversely affect the right of those candidates

          who were qualified for selection and appointment

          on the date they applied for the post, moreover as

    WPC.2021/09R & CONN.CASES       85

          the process of selection had already commenced

          when the amending Rules came into force, the

          amended Rules could not affect the existing rights

          of those candidates who were being considered for

          selection   as   they    possessed   the   requisite

          qualifications prescribed by the Rules before its

          amendment moreover construction of amending

          Rules should be made in a reasonable manner to

          avoid unnecessary hardship to those who have no

          control over the subject matter."

                                     (Emphasis supplied)

    In N.T. Devin Katti And Others v. Karnataka Public Service

    Commission And Others ((1990) 3 SCC 157), the Karnataka

    Public Service Commission issued Notification on 23.5.1975,

    published on 29.5.1975, inviting applications from inservice

    candidates for recruitment to fifty posts of Tahsildars. The

    Notification specified the details of the posts reserved for

    various categories. The appellants were applicants. The written

    examination and the interview being over, a final list of

    successful candidates was published.      The Commission also

    notified an additional list of candidates in accordance with the

    WPC.2021/09R & CONN.CASES      86

    1975 Rules. The Commission had followed the directions in

    the Government Order dated September 6, 1969 in regard to the

    reservation to various categories. The Government, however,

    refused to approve the list on the basis that reservation should

    have been made in accordance with Order dated July 9, 1975.

    The appellants before the Apex Court did not figure in the

    revised list of candidates prepared pursuant to the direction of

    the Government. The Apex Court found that the Government

    interpretation was erroneous, as the conditions precedent

    contemplated under paragraph 11 of the order were fulfilled and,

    therefore, the selections which were pending were saved.

    Thereafter, it was proceeded to hold as follows:

                "11.   There is yet another aspect of the

          question. Where advertisement is issued inviting

          applications for direct recruitment to a category of

          posts, and the advertisement expressly states that

          selection shall be made in accordance with the

          existing rules or government orders, and if it

          further indicates the extent of reservations in

          favour of various categories, the selection of

    WPC.2021/09R & CONN.CASES       87

          candidates in such a case must be made in

          accordance with the then existing rules and

          government orders. Candidates who apply, and

          undergo written or viva voce test acquire vested

          right for being considered for selection in

          accordance with the terms and conditions

          contained in the advertisement, unless the

          advertisement itself indicates a contrary intention.

          Generally, a candidate has right to be considered

          in accordance with the terms and conditions set

          out in the advertisement as his right crystallises on

          the date of publication of advertisement, however,

          he has no absolute right in the matter.        If the

          recruitment Rules are amended retrospectively

          during the pendency of selection, in that event

          selection must be held in accordance with the

          amended Rules.         Whether the Rules have

          retrospective effect or not, primarily depends upon

          the language of the Rules and its construction to

          ascertain the legislative intent.    The legislative

          intent is ascertained either by express provision or

          by necessary implication; if the amended Rules

          are not retrospective in nature, the selection must

          be regulated in accordance with the rules and

    WPC.2021/09R & CONN.CASES        88

           orders which were in force on the date of

           advertisement.    Determination of this question

           largely depends on the facts of each case having

           regard to the terms and conditions set out in the

           advertisement and the relevant rules and orders.

           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."

                                          (Emphasis supplied)

    In Gopal Krushna Rath v. M.A.A.Baig (Dead) by Lrs. And

    Others ((1999) 1 SCC 544), applications were invited for

    appointment to the post of Professor on 01.6.1991. On the basis

    of the assessment chart, candidates applied and after conducting

    WPC.2021/09R & CONN.CASES        89

    interviews, the Committee prepared select list. The interview

    had taken place on 11.5.1992. The Writ Petition was filed

    challenging the appointment of the appellant on the ground that

    guidelines prescribed by the UGC were changed with effect

    from 19.9.1991 and as the appellant did not possess the newly

    prescribed qualification of ten years experience in teaching in

    the Post Graduate level, his appointment was bad. It is in this

    context that the court held, inter alia, as follows:

                 "5. It is an accepted position that on the

           date of the advertisement and on the last date

           prescribed for the receipt of applications, the

           qualification prescribed by the University Grants

           Commission was 10 years' experience of teaching

           and/or research.      Therefore, the advertisement

           also prescribed the same qualification.          The

           appellant possessed that qualification. Even on

           the date when the Syndicate prepared an

           assessment chart, the position was the same. It

           was only thereafter, on 19.9.1991, that the new

           qualification   regarding      ten   years'  teaching

           experience at the postgraduate level came into

           effect."

    WPC.2021/09R & CONN.CASES        90

    It is also held that the appellant possessed the necessary

    qualifications as advertised on the last date for receipt of

    applications and accordingly, the Appeal filed by the appellant

    was allowed. In Maharashtra State Road Transport Corpn. and

    Others v. Rajendra Bhimrao Mandve And Others ((2001) 10

    SCC 51), advertisement was issued on 20.9.1995 for the post of

    Drivers in the appellant Corporation. According to the writ

    petitioners, the selection was bad for the reason that the

    Selection Committee had allotted twentyfive per cent marks for

    interview on the basis of Circular dated 24.6.1996. According

    to them, they were governed by Circular dated 4.4.1995 which

    assigned twelve and a half marks for the oral test as also

    Circular dated 23.1.1995. The High Court allowed the Writ

    Petition and set aside the selection and declared that the claim of

    the ten petitioners are also to be considered. The Apex Court

    found that the High Court was not correct in holding that

    Circular dated 24.6.1996 is illegal or arbitrary. Thereafter, it is

    proceeded to hold as follows:

    WPC.2021/09R & CONN.CASES       91

                "Instead, it would have been well open to the

          High Court to have declared that the criteria

          sought to be fixed by the Circular dated 24.6.1996

          as the sole determinative of the merit or grade of a

          candidate for selection long after the last date

          fixed for receipt of application and in the middle of

          the course of selection process (since in this case,

          the driving test was stated to have been conducted

          on 27.11.1995) cannot be applied to the selections

          under consideration and challenged before the

          High Court. It has been repeatedly held by this

          Court that the rules of the game, meaning thereby,

          that the criteria for selection cannot be altered by

          the authorities concerned in the middle or after the

          process of selection has commenced. Therefore,

          the decision of the High Court, to the extent it

          pronounced upon the invalidity of the circular

          orders dated 24.6.1996, does not merit acceptance

          in our hand and the same are set aside."



    In Secretary, A.P. Public Service Commission v. B. Swapna

    And Others ((2005) 4 SCC 154), the appellant Commission

    advertised fifteen posts in all of Assistant Public Relations

    WPC.2021/09R & CONN.CASES       92

    Officer. There was an amendment on 30.7.1997 of the Rules. It

    read as follows:

                "The list of the candidates approved/selected

          by the Commission shall be equal to the number of

          vacancies only including those for reserve

          communities/categories     notified  by   the   unit

          officers/Government. The fallout vacancies if any

          due to relinquishment and non-joining, etc., of

          selected candidates shall be notified in the next

          recruitment."

    The Apex Court in Appeal against the order of the tribunal as

    confirmed by the High Court, inter alia, held as follows:

                "14. The High Court has committed an error

          in holding that the amended rule was operative.

          As has been fairly conceded by learned counsel

          for respondent 1 applicant, it was the unamended

          rule which was applicable. Once a process of

          selection starts, the prescribed selection criteria

          cannot be changed. The logic behind the same is

          based on fair play. A person who did not apply

          because    a   certain   criterion  e.g.   minimum

          percentage of marks can make a legitimate

          grievance, in case the same is lowered, that he

    WPC.2021/09R & CONN.CASES        93

         could have applied because he possessed the said

         percentage.    Rules regarding qualification for

         appointment if amended during continuance of the

         process of selection do not affect the same. That is

         because every statute or statutory rule is

         prospective unless it is expressly or by necessary

         implication made to have retrospective effect.

         Unless there are words in the statute or in the

         rules showing the intention to affect existing rights

         the rule must be held to be prospective. If the rule

         is expressed in a language which is fairly capable

         of either interpretation, it ought to be considered

         as prospective only.....................The selection from

         the ranking list from amongst the posts advertised

         was limited to the cases where the selected

         candidates had relinquished the selection or who

         had not joined the duties within the given time and

         also new requisitions sent by the appointing

         authority.    The Commission did not think it

         appropriate to make appointment from the new

         requisitions. The fact that the Commission had

         directed that fresh advertisements were to be made

         is clearly indicative of the fact that the

         Commission did not want the new requisitions to

    WPC.2021/09R & CONN.CASES       94

         be filled up by appointing from the ranking list in

         force.    The Tribunal and the High Court were

         therefore not justified in holding by referring to

         the amended rule that the fallout vacancies were

         to be filled up from the ranking list. The fallout

         vacancies in terms of the amended notification

         were to be notified in the next recruitment. Case

         of the applicant all through has been that her

         claim was relatable to the 14 vacancies indented

         on 14.4.1997 and in particular the open category.

         It is not her case that the Commission had directed

         fresh advertisement though it had not frozen the

         rank list. It is not disputed that there cannot be

         direction for fresh advertisement unless the rank

         list is frozen.   The materials placed on record

         clearly    show    that   before   directing  fresh

         advertisement, the Commission had in fact, for

         reasons        recorded       directed     freezing.

         Unfortunately,    the    Tribunal  did  not   grant

         adequate time to the Commission to produce

         relevant records and the High Court proceeded on

         erroneous premises that the amended Rules

         applied. Therefore, looked at from any angle, the

         High Court's judgment affirming the Tribunal's

    WPC.2021/09R & CONN.CASES      95

           judgment cannot be maintained. The same is set

           aside."

    In Mohanan Pillai v. State of Kerala (2007 (2) KLT 551 (SC)),

    applications     were    invited   for    twelve      posts    of

    Watchman/Messenger/Attender and a written test was held on

    18.1.2001. Only thirtysix candidates who got the highest marks

    were called for the interview, appellant being one among them.

    A policy decision was taken to call only those candidates who

    had come within the zone of three times the number of posts.

    The minimum mark thereafter was reduced to 46 marks and

    eleven more persons were permitted to appear for the interview.

    The appellant who was not selected, challenged the selection on

    the ground that respondents 4 and 5 were called for the

    interview only one day prior to the holding thereof. The stand

    of the Public Sector Company was, inter alia, that it was decided

    to enlarge the zone of consideration to 1:4 and accordingly call

    letters were issued. The Apex Court held as follows:

                "9. Why such a decision had been taken after

           the publication of the result of the written

    WPC.2021/09R & CONN.CASES       96

          examination and after calling 36 candidates for

          interview is not known.        Why the Company

          intended to enlarge the zone of consideration from

          1:3 to 1:4 has also not been disclosed. Why the

          cut-off mark was also lowered remained a mystery.

               10. It may be that in a given situation, a

          decision of the State may be changed, but therefor

          good and sufficient reasons must be assigned. The

          Company failed to do so. The decision taken in

          this behalf smacks of arbitrariness. It prejudiced

          the candidates like the appellant.

               11. It is now well-settled that ordinarily rules

          which were prevailing at the time, when the

          vacancies arose would be adhered to.             The

          qualification must be fixed at that time.        The

          eligibility criteria as also the procedures as was

          prevailing on the date of vacancy should ordinarily

          be followed."

    The Court allowed the Appeal and set aside the selection of

    respondents 4 and 5. The Court in the said case noted that the

    allocation of marks for interview was in fact misused and drew

    an inference of favouritism. Also it was noticed that the power

    was exercised for an unauthorised purpose and it constituted

    WPC.2021/09R & CONN.CASES      97

    malice in law.

         37. In K. Manjusree v. State of Andhra Pradesh And

    Another ((2008) 3 SCC 512), the Andhra Pradesh State Higher

    Judicial Service Rules did not prescribe any criteria for

    selection. However, as per the Resolutions, twentyfive marks

    were earmarked for interview. By Resolution dated 30.11.2004,

    it was resolved to conduct the written examination for

    seventyfive marks and oral examination for twentyfive marks.

    The written test was held on 30.1.2005 and 1026 candidates

    appeared for the examination. Results were declared on

    24.2.2005. There was some litigation as a result of which the

    interviews were delayed.    Thereafter, interview was held in

    March, 2006.       A consolidated merit list of eightythree

    candidates was prepared in the order of aggregate merit. It

    contained, inter alia, marks secured in the written examination

    out of 100 marks and marks secured in the interview out of

    twentyfive marks and the total marks secured in the written

    examination and interview out of one hundred and twentyfive.

    WPC.2021/09R & CONN.CASES        98

    When the matter came up before the Full Court, it did not agree

    with the select list as approved by the Administrative

    Committee.     It authorised the Chief Justice to constitute a

    Committee and the said Committee was of the view that the

    candidates should be evaluated with reference to the written

    examination marks of seventyfive and interview marks of

    twentyfive. It scaled down the marks with reference to the total

    marks in the written examination with reference to the total of

    hundred. It also was of the view that there should be the same

    cut off percentage for interview marks and those who failed to

    secure such minimum marks in the interview should be

    considered having failed. Smt. Manjusree whose name was

    found in the first list contended that the prescription of minimum

    marks which was not sanctioned by the Rules or the Resolution

    dated 30.11.2004 and the Full Court was changing the Rules of

    the game, not only after the game was started, but the game

    played. The Court after referring to the case law held, inter alia,

    as follows:

    WPC.2021/09R & CONN.CASES     99

                "33. The Resolution dated 30-11-2004 merely

         adopted the procedure prescribed earlier.        The

         previous procedure was not to have any minimum

         marks for interview.      Therefore, extending the

         minimum marks prescribed for written examination,

         to    interviews,  in  the   selection  process    is

         impermissible. We may clarify that prescription of

         minimum marks for any interview is not illegal. We

         have no doubt that the authority making rules

         regulating the selection, can prescribe by rules, the

         minimum marks both for written examination and

         interviews, or prescribe minimum marks for written

         examination but not for interview, or may not

         prescribe any minimum marks for either written

         examination or interview. Where the rules do not

         prescribe any procedure, the Selection Committee

         may also prescribe the minimum marks, as stated

         above.    But, if the Selection Committee wants to

         prescribe minimum marks for interview, it should do

         so before the commencement of selection process. If

         the Selection Committee prescribed minimum marks

         only for the written examination, before the

         commencement of selection process, it cannot either

         during the selection process or after the selection

    WPC.2021/09R & CONN.CASES      100

          process, add an additional requirement that the

          candidates should also secure minimum marks in the

          interview.   What we have found to be illegal, is

          changing the criteria after completion of the

          selection   process,  when     the  entire   selection

          proceeded on the basis that there will be no

          minimum marks for the interview."

                                         (Emphasis supplied)

    In Stalin v. State of Kerala (2006 (1) KLT 493), the question

    was whether the Commission was justified in refusing to advise

    the petitioners on the ground that they did not possess the

    qualifications in terms of the amended Special Rules after the

    commencement of the selection process. The Commission had

    issued Notification on 27th October, 1998. The selection process

    was completed and separate District-wise rank lists were

    prepared on various days between April 22nd and January, 2003.

    On 12th April, 1999, the Rules were amended, prescribing a

    qualification different from the qualification earlier prescribed.

    The Court referred to Mahendran's case (supra) and held that the

    amendment would not have any impact on the rights accrued to

    WPC.2021/09R & CONN.CASES        101

    the petitioners as on the date of the Notification issued by the

    Commission. It is also relevant to note that the Court also drew

    support from Ext.P4 G.O. clarifying that changes in

    qualifications, etc. after the issuance of a Notification by the

    Commission will be given effect to in future selections only.

    There was no retrospective effect, either. In Mohammed Najim

    v. State of Kerala (1993 (2) KLT 721), a Division Bench of this

    Court was considering selection to the post of Amins. The

    Court held that the Government had the power to amend the

    Rules even after the selection process have started with

    retrospective effect provided it did not affect the constitutional

    rights of a person. It was held as follows, inter alia,:

                "Though an applicant has a right to be

           considered for the post in accordance with the law

           as it existed at the time of commencement of the

           selection process, that right is not so sacrosanct or

           inviolable as not to be affected by a retrospective

           amendment to the rules. Such an amendment will

           operate and impair the right of consideration for

           appointment in a vacancy which alone inheres in

           an applicant. The government's power to make

    WPC.2021/09R & CONN.CASES        102

           rules regulating conditions of service, with

           retrospective effect is undeniable, whether under

           art. 309 of the Constitution or under S. 2 of the

           Kerala Public Services Act, 1968. A retrospective

           amendment naturally affects vested right. To say

           as suggested by the petitioners that any rules made

           with retrospective effect, shall not affect any

           vested rights, will thus be self-contradictory. Even

           if any right had vested in the petitioners, by the

           initiation of the selection process, that could be

           divested by a retrospective amendment provided it

           does not impinge upon any of their constitutional

           rights."                        (Emphasis supplied)

    It further held that the only right that is vested on the petitioners

    on their making the applications was the right to be considered

    for selection in accordance with the Rules as they existed on the

    date of the advertisement of which they could be deprived by a

    retrospective amendment.          In Mohanan v. Director of

    Homeopathy (2006 (3) KLT 641 (FB)), a Full Bench of the

    Kerala High Court was considering the following facts, inter

    alia:

    WPC.2021/09R & CONN.CASES      103

         Applications were invited in 1995 to the post of

    Pharmacists Gr. II, the last date being 29.11.1995. Following

    the written test and interview, a rank list was published on

    27.6.2003.     In 1999, the Government issued Special Rules

    changing the qualifications with effect from 12.4.1999. The

    question arose whether in view of the amendment, persons could

    be appointed from persons in the list prepared on the basis of the

    pre-revised qualifications. The Court referred to the case law

    which we have already referred to and proceeded to hold as

    follows:

               "It is worth noting that these decisions

          recognise a right in those persons who have

          applied pursuant to the selection process initiated

          prior to the date of coming into force of the Special

          Rules, for being considered for selection in

          accordance with the rules in force at that time. By

          the same coin, as equally enforceable right has to

          be recognised in those persons who possess the

          new/amended qualifications as per the Special

          Rules to get recruitments made in accordance with

          the new/amended rules, in which they also can

    WPC.2021/09R & CONN.CASES    104

         compete to the vacancies which have arisen

         subsequent to the coming into force of the

         new/amended rules.     Apart from consistency in

         applying law, failure to concede such right would

         amount to violation of the fundamental rights of

         those who have the new/amended qualifications,

         under Arts. 14 and 16 of the Constitution of India.

         In other words, both the rights should mutually co-

         exist and in that view also, our conclusion is

         perfectly in accordance with the constitutional

         principles which cannot be negated to both sets of

         people. When the position that the Government is

         empowered to amend recruitment rules even

         retrospectively is unquestionable, it cannot also be

         forgotten that after the amended rules have come

         into force, if appointments are allowed to be made

         from the list prepared in accordance with the

         unamended rules, notwithstanding the amendment,

         that would amount to postponing of the date of

         commencement of the amended rule itself, which

         no authority other than the Government can do.

         once an amendment regarding qualifications and

         method of appointment etc., in respect of a

         particular post comes into force any vacancy which

    WPC.2021/09R & CONN.CASES       105

           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."

          38.   We further notice that the decision in Manjusree's

    case (supra) came to be affirmed, though a contention was taken

    that it was rendered without noticing certain earlier decisions.

    The decision in     Hemani Malhotra v. High Court of Delhi

    ((2008) 7 SCC 11) related to the Delhi Higher Judicial Service.

    This case also related to the prescription for the minimum marks

    for the viva voce by the Full Court on the basis of the matter

    being placed before it by the Selection Committee.            The

    candidates sat for the written test. They were called for the

    interview on various dates, but the interview was being deferred

    and it was thereafter that the Full Court took its decision fixing

    minimum qualifying marks on 13.12.2006.            Thereafter, the

    interview was held. The complaint taken by the petitioners was

    that they have been excluded from being considered for

    WPC.2021/09R & CONN.CASES       106

    appointment to the post of Higher Judicial Service exclusively

    on the basis of the cut off marks prescribed for the viva voce test

    which was illegal being contrary to the decision of the Apex

    Court in Lila Dhar v. State of Rajasthan ((1981) 4 SCC 159). It

    was also contended that minimum marks could not be prescribed

    after the selection process has commenced. In this context of the

    facts and after referring to Manjusree's case, the Court, inter

    alia, held as follows:

                 "From the proposition of law laid down by

           this Court in the above mentioned case, it is evident

           that previous procedure was not to have any

           minimum marks for viva voce.               Therefore,

           prescribing minimum marks for viva voce was not

           permissible at all after the written test was

           conducted.........There is no manner of doubt that

           the authority making rules regulating the selection

           can prescribe by rules the minimum marks both for

           written examination and viva voce, but if minimum

           marks are not prescribed for viva voce before the

           commencement of selection process, the authority

           concerned, cannot either during the selection

           process or after the selection process add an

    WPC.2021/09R & CONN.CASES      107

          additional    requirement/qualification    that    the

          candidate should also secure minimum marks in the

          interview. Therefore, this Court is of the opinion

          that prescription of minimum marks by the

          respondent at viva voce test was illegal."

                                        (Emphasis supplied)

    In Amlan Jyoti Borooah v. State of Assam and Others ((2009) 3

    SCC 227), the Apex Court frowned upon the change in the order

    in which written test, physical test and interview for selection as

    Sub Inspector of Police was held and the Court took the view

    that the deviation could not have been done from the advertised

    order by holding the written test and interview first and then the

    physical test.   In Mohd. Sohrab Khan v. Aligargh Muslim

    University And Others ((2009) 4 SCC 555), the Court held that

    recruitment must be held in accordance with the qualifications

    prescribed in the advertisement. In Y.V. Rangaiah And Others

    v. J. Sreenivasa Rao and Others ((1983) 3 SCC 284), the Court

    held as follows:

                "8.    The contention on behalf of the

          appellants herein is that by the time the list was

    WPC.2021/09R & CONN.CASES     108

          prepared in May, 1977 Rule 5 of the Andhra

          Pradesh Registration and Subordinate Service

          Rules was amended and the list prepared was in

          accordance with the rules then prevailing at the

          time of preparation, and therefore, there was

          nothing wrong with the preparation of the panel.

          It was further contended that the petitioners in the

          two representation petitions having not challenged

          the validity of the amendment to Rule 5 of the

          Andhra Pradesh Registration and Subordinate

          Service Rules, it was not open to them to challenge

          the list prepared in May, 1977 which is in

          accordance with the rules prevailing at that time.

                9. Having heard the counsel for the parties,

          we find no force in either of the two contentions.

          Under the old rules a panel had to be prepared

          every year in September.     Accordingly, a panel

          should have been prepared in the year 1976 and

          transfer or promotion to the post of Sub-Registrar

          Grade II should have been made out of that panel.

          In that    event, the petitioners    in   the two

          representation petitions who ranked higher than

          respondents 3 to 15 would not have been deprived

          of their right of being considered for promotion.

    WPC.2021/09R & CONN.CASES     109

          The vacancies which occurred prior to the

          amended rules would be governed by the old rules

          and not by the amended rules. It is admitted by

          counsel for both the parties that henceforth

          promotion to the post of Sub-Registrar Grade II

          will be according to the new rules on the zonal

          basis and not on the State-wide basis and,

          therefore, there was no question of challenging the

          new 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. Manoharan And Others v. Union of India And Others

    ((2008) 3 SCC 641), the Apex Court took the view that the

    Regulations which were amended and having a prospective

    effect could not be applied retrospectively and any vacancy

    which had arisen prior to the coming into force of the said

    Amended Regulations must be filled up in terms of the law as

    was in force earlier.

         39. In Dr. K. Ramulu And Another v. Dr. S. Suryaprakash

    WPC.2021/09R & CONN.CASES       110

    Rao and Others ((1997) 3 SCC 59), the question arose in the

    following factual matrix: Government took a decision not to fill

    up vacancies pending amendment of the Rules which had been

    repealed. After referring to Shanker San's case (supra) and

    various other cases, the Court took the view that in view of the

    Rules and the facts of the case, it was open to the Government to

    have taken a decision not to make any appointment till the

    amendment of the Rules. Even there, the Court approved of the

    view that in regard to vacancies which were existing, eligible

    candidates were required to be considered in accordance with

    the prevailing Rules.

         40. We have already referred to the decision in

    Maharashtra State Judges Association And Others v. Registrar

    General, High Court of Judicature at Bombay And Another

    ((2009) 1 SCC 569). The petitioner which was the State Judges

    Association, contended that unification of posts was to be made

    effective from 13.11.1991, which was the date on which the All

    India Judges' Association (I) case ((1992) 1 SCC 119) was

    WPC.2021/09R & CONN.CASES      111

    decided. Alternatively, it was contended that the unification into

    three categories should be from 31.3.1994. The Court took the

    view that what was directed in the All India Judges'

    Association (I) case was that uniformity should be brought

    about in the designation of Judicial Officers. In the All India

    Judges' Association's case (II), namely (1993) 4 SCC 288, by

    order dated 24.8.1993, implementation of Law Commission

    recommendations to bring about uniformity in hierarchy,

    designations and jurisdiction of Officers both on the Civil and

    Criminal side, was ordered. It was held that only when the

    Shetty Commission recommended, there should be only three

    categories with pay scales, it became necessary to unify the

    multiple categories into three categories. Shetty Commission

    recommended applicability to the new pay scales with effect

    from 1.7.1996. Further, the Court took note of the fact that the

    Apex court in the All India Judges' case, directed acceptance of

    the Shetty Commission recommendation for three cadres with

    effect from 1.7.1996. In the course of the Judgment, the Apex

    WPC.2021/09R & CONN.CASES        112

    Court, inter alia, held as follows:

                "24. Shetty Commission, as a corollary to its

          pay scale recommendation, recommended that

          there should be only three cadres:          District

          Judges, Civil Judge (Senior Division) and Civil

          Judge (Junior Division), and multiple categories

          should be avoided.         But, the recommendation

          made in the report dated 11-11-1999 was not

          binding, until it was accepted by this Court and

          Rules were framed in terms of it.          The said

          recommendation was accepted in All India

          Judges' Assn.(III) by Judgment dated 21-3-2002.

          By the said Order, this Court granted time upto

          31-3-2003         to      implement     the    said

          recommendations. Until the recommendation was

          accepted      and     Rules    were   framed,   the

          integration/caderisation was a nebulous concept

          incapable of being claimed or enforced as a

          right."

         41.    There can be no manner of doubt that the petitioners

    are justified in contending that their right to be considered for

    appointment in accordance with the qualifications as to age as

    were prescribed under the Rules and consequently their rights

    WPC.2021/09R & CONN.CASES       113

    under the Notification, cannot be imperiled by the amendment in

    question. It is true that the right which the petitioners have is

    only a right to be considered for selection in accordance with the

    Rules and the Notification following the Rules.

         42. This is the inevitable result of applying a doctrine

    which has evolved over a period of nearly three decades of

    judicial exposition of the legal principle applicable in such

    cases. We are unable to accede to the contention raised on

    behalf of the respondents that the said principle may not be

    available to a judicial post.     Apart from the fact that the

    applicability of the doctrine must be decided on the basis of the

    rationale behind the doctrine and there is nothing to detract from

    the universality of its sweep, we also agree with the petitioners

    that any deviation from the law laid down by an unbroken line

    of decisions of the Apex Court would be at the expense of

    endangering the very concept of the rule of law. At the heart of

    the rule of law lies the concept of fairness. If we set our face

    against recognising a right with the petitioners, we would be

    WPC.2021/09R & CONN.CASES        114

    doing so by recognising a point of difference between the

    aspirants for judicial service and applicants for other posts in

    respect of a matter where the distinction is irrelevant.     In

    essence, we would end up being open to criticism validly

    levelled, we would think, of breaching the command of equality.

    We are fortified in the view we take in this matter by the

    decision of the Apex Court in Manjusree's case (supra) which

    also related to judicial service.

          43. We also see no merit in the contention raised by Shri

    A. Mohamed Mustaque that the doctrine has no application

    unless there has been an appointment or a select list has been

    drawn and at the end of the selection. While it may be true that

    in many of the cases cited, the amendment was enacted after the

    selection is over, in some cases, the amendment was brought

    about before the interviews were held. Also, we note that in

    these cases, the written test was conducted in October, 2007.

    The amendment is in June, 2008.          That apart and more

    importantly, the principle which has been laid down is apposite

    WPC.2021/09R & CONN.CASES       115

    even when an amendment is enacted after the selection process

    has begun and before the selection process has ended. This is

    the view which has been expounded by the Apex Court as is

    clear from the view taken by it which we have adverted to

    earlier. If we take a different view, we also cannot overlook the

    possibility of the doctrine being frustrated at the hands of the

    concerned bodies by timing the amendment by delaying the

    selection process.

          44.   We cannot overlook the fact that the High Court and

    the State Government must be aware of the legal principle which

    is established in this regard and were aware of the device open

    to the law giver, to deal with the situation in question. In a

    Republic governed by rule of law, it is important that the

    constitutional bodies observe the law and adopt methods which

    are available in law to deal with various situations that may

    arise. Knowing the law, as we must presume that they did, when

    the constitutional authorities still do not exercise the legislative

    power to apply the amendment retrospectively, we feel that we

    WPC.2021/09R & CONN.CASES      116

    will be acting in the teeth of the law laid down by the Apex

    Court itself, if we were not to recognize the right of the

    petitioners to be considered for selection, ignoring the

    amendment in question.

          45. We also do not see merit in the contention of Shri A.

    Mohamed Mustque that the grant of relief to the petitioners

    should be refused on the basis of the principle established in

    Indira Sawhney v. Union of India ((1992) Supp. 3 SCC 217). It

    is necessary to notice the facts of the case which arose in Indra

    Sawhney v. Union of India and Others ((2000) 1 SCC 168).

    After the Judgment in the Ist Indra Sawhney's case, all the

    States were obliged to identify the creamy layer.            The

    Government of Kerala took time.           There were contempt

    proceedings. However, instead of appointing a Commission, it

    passed an Act in the year 1995 which declared that there was no

    creamy layer in the State of Kerala. It was this declaration

    which was complained of as being contrary to the law laid down

    in the Ist Indra Sawhney's case and also Asok Kumar Thakur's

    WPC.2021/09R & CONN.CASES      117

    case. In deciding the question, the Court, inter alia, considered

    as to what is the law declared and the directions given in the

    Indra Sawhney's case.         It also considered whether the

    declaration could be undone by the legislature by a retrospective

    validating Act containing a declaration, the effect of which was

    to say that there was no creamy layer in the State of Kerala. The

    Court after referring to the Judgments in the Ist Indra

    Sawhney's case as also in Asok Kumar Thakur's case, took the

    view that identification of the creamy layer was needed and the

    norms laid down by the Central Government or State

    Governments must apply not only for the immediate present, but

    also for the future. This was found to be the declaration of the

    law made in Indra Sawhney's case and in Asok Kumar

    Thakur's case. It was in this context that the Court took the

    view that the Court found that the declaration by the Legislature

    of the State was a mere cloak unrelated to the facts in existence

    and also contrary to the principles laid down by the Courts in

    both Indira Sawhney's case and in Asok Kumar Thakur's case.

    WPC.2021/09R & CONN.CASES        118

    Various facts and circumstances are stated in the Judgment in

    support of the same.          They included the fact that the

    Government requested the Court for time to appoint a

    Commission to identify the creamy layer. Thus, this was a case

    where the legislative exercise was specifically challenged as

    being contrary to the declaration of the law by the Apex Court.

    It also noted that the law violated Articles 14 and 16 of the

    Constitution and, therefore, it is constituted violation of the

    basic structure of the Constitution of India.

          46. We have already noted that the acceptance of the

    Report of the Shetty Commission by the Apex Court would not

    amount to declaration of a law in the sense that the Court did not

    contemplate that without any amendment to the Rules, the

    qualification in question would come into play from the date of

    the Judgment or from a prospective date. We do not think that

    by conforming to the principles enunciated by the Apex Court

    itself, that a candidate has a right to be considered in accordance

    with the qualifications prevalent when the Notification is issued

    WPC.2021/09R & CONN.CASES      119

    and with reference to the relevant date mentioned therein, we

    would be in any manner violating any principle of law declared

    by the Apex Court.

          47. As far as the decision in Sahadeva Valigan v. State of

    Kerala (1988 (1) KLT 202), that was a case where the power to

    select the Munsiffs which was originally located with the Public

    Service Commission, was made over to the High Court. The

    petitioners who had applied pursuant to the Notification issued

    by the Public Service Commission and sat for the test, sought a

    direction to be considered either by the Commission or by the

    High Court.    It was in such circumstances that the Court took

    the view that the applications submitted by the petitioners could

    not be revived by the High Court, and that the Commission had

    become functus officio in so far as those posts were concerned,

    as they had been withdrawn from the purview of the

    Commission, and that the High Court was the sole repository of

    selection. The Court took the view that it did not have the

    power to direct another constitutional authority to transfer the

    WPC.2021/09R & CONN.CASES      120

    applications received by them to be processed by the Court. It

    was noted that the Court could not accept the applications

    received pursuant to the Notification issued by other authorities,

    as it would violate Rules 7 and 11 of the Special Rules. Of

    course, the Court took the view that the petitioners were only

    candidates who had not been selected or advised and that the

    applications did not create any legal right. We would think that

    it may not be appropriate to treat the said decision as apposite to

    deal with the facts situation in these cases. Further more, we

    would think that in the light of various decisions of the Apex

    Court which we have already referred to, no assistance can be

    drawn by the respondents from the said decisions.

          48.   The decision in State of M.P. And Others v.

    Raghuveer Singh Yadav and Others ((1994) 6 SCC 151) is

    relied on to contend that what the petitioners have, is a

    legitimate expectation which can be defeated by a change of

    policy or the amendment of the Rules. That was a case where

    after the conduct of the written examination for selection as

    WPC.2021/09R & CONN.CASES       121

    Inspector in the Weight and Measures Department and pending

    interview, the Government amended the Rules and altered the

    qualification for eligibility. On the basis of the amended Rules,

    the Government withdrew the earlier Notification and intended

    to proceed with the recruitment afresh. The respondents had

    successfully challenged the amended Rules on the ground that

    the Rules could not be amended retrospectively. It was in this

    context that the Court held as follows:

                "The candidates who had appeared for the

          examination and passed the written examination

          had only legitimate expectation to consideration

          of their claims according to the rules then in

          vogue. The amended rules have only prospective

          operation. The Government is entitled to conduct

          selection in accordance with the changed rules

          and make final recruitment.          Obviously, no

          candidate acquired any vested right against the

          State. Therefore, the State is entitled to withdraw

          the notification by which it had previously notified

          recruitment and to issue fresh notification in that

          regard on the basis of the amended rules."

    But, in fact, the Court in paragraph (6) referred to P.

    WPC.2021/09R & CONN.CASES      122

    Mahendran's case (supra) and distinguished it as follows:

                "6. The ratio in P. Mahendran v. State of

          Karnataka has no application to the facts in this

          case. In that case, for the posts of Motor Vehicles

          Inspector, apart from the qualifications prescribed,

          they issued additional qualifications and selection

          was sought to be made on the basis of additional

          qualifications. It was held that since recruitment

          was sought to be made on the basis of the

          qualifications      prescribed,      the    additional

          qualifications    prescribed    thereafter   have   no

          retrospective effect to the recruitment already set in

          motion.     Under those circumstances, additional

          qualifications were directed not to be taken into

          account for considering the claims of the candidates

          on the basis of the original advertisement. The ratio

          therein is clearly inapplicable to the facts in this

          case."

    Therefore, the Court reiterated the principle in Mahendran's

    case. In fact, even the petitioners do not have a quarrel with the

    proposition that if the Notification itself had been withdrawn in

    this case in the light of the amendment and a fresh recruitment

    WPC.2021/09R & CONN.CASES      123

    was resorted to, there may not be any room for complaint. In

    fact, this decision advances the case of the petitioners than the

    respondents.     The facts of these cases attract the principle in

    Mahendran's case and the other decisions of the Apex Court

    and of this Court on the same lines.

          49. We also do not think that Shri A. Mohamed Mustaque

    is justified in contending that neither a writ of certiorari or

    mandamus would lie. No doubt, he would contend that judicial

    review of administrative action is not to be confused with

    appellate jurisdiction and it is concerned with finding out

    whether the impugned action is afflicted with illegality,

    irrationality or procedural impropriety. (See the decision in 1984

    (3) All Eng. Reports Page 935). But, if the action is illegal,

    undoubtedly, interference may be justified.     Also, a reference

    to the decisions leave us in no doubt that the Apex Court has

    evolved a principle of law that a person who has applied for a

    post, has a right to be considered for appointment on the

    strength of the conditions prescribed when he applied. The right

    WPC.2021/09R & CONN.CASES       124

    which the candidate has, cannot be taken away by virtue of an

    amendment which purports to introduce qualifications, changes

    in qualifications or disqualifications without doing so with

    retrospective effect. It is clear that the amendment to the Rule

    prescribing the qualifications as to age came into force only in

    the year 2008. The words "at once" unambiguously convey the

    legislative intention of prospective operation.     There is no

    retrospectivity intended or expressed.

          50. No doubt, there is no right to be appointed, that is to

    say, it is always open to the appointing authority to justify a

    decision not to proceed with the selection process. But, that is

    not the position here.     In this case, the process which was

    commenced by the issuance of the Notification pursuant to

    which the petitioners applied and successfully underwent the

    written   examination,    is   not   being   terminated  without

    appointments being made.         On the contrary, the official

    respondents have very much drawn upon the very same

    Notification and candidates who have applied pursuant thereto,

    WPC.2021/09R & CONN.CASES        125

    to complete the selection process on the strength of the

    amendment to the Rules by excluding the petitioners solely for

    non-fulfillment of the command of the amended provisions. This

    we consider, is plainly impermissible.

         51. The upshot of the discussion is as follows:

         We hold that the amendment to the Rules is prospective

    and will not affect the right of the petitioners to be considered in

    accordance with law, for the post of District Judge in respect of

    the six vacancies notified in the Notification. The decision to

    exclude the petitioners on the basis of the amendment is illegal.

    The petitioners have a right to be considered on the basis of their

    performance in the written test and interview.

         52. There will be a declaration that the amendment to the

    Rule in question is prospective and does not affect the selection

    process initiated under the Notification issued in 2007 and the

    exclusion of the petitioners as per the said amendment is illegal.

    Consequently, we issue a writ of mandamus directing the High

    Court of Kerala and the State of Kerala to consider the claim of

    WPC.2021/09R & CONN.CASES       126

    the petitioners also in accordance with law, for appointment as

    District Judge as against the six vacancies for which the

    Notification was issued. The appointments which have already

    been made being subject to the final decision in these Writ

    Petitions, will depend upon the decision to be taken in regard to

    the petitioners pursuant to this Judgment. The select list will

    be recast on the basis of the decision. A decision as aforesaid

    shall be taken within one month from the date of receipt of a

    copy of this Judgment.

          The Writ Petitions are allowed as above.

                                                    Sd/=
                                             S.R. BANNURMATH,
                                               CHIEF JUSTICE


                                                     Sd/=
                                                  K.M. JOSEPH,
                                                     JUDGE

    kbk.
                         // True Copy //




     
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