Sreedharan, J.@mdashSame questions arise for consideration in these petitions. Therefore, I consider it advantageous to dispose of them by a
common judgment.
2. For a proper understanding of the dispute some facts have to be stated. The Police force in the State is organised into the ''Local Police'' and
the ''Armed Police''. The Armed Police is bifurcated into ""Armed Police Battalion"", hereinafter referred to as ""the Battalion"" and the ""District
Armed Reserve"", hereinafter referred to as ""the Armed Reserve"". The recruitment to the above categories was outside the purview of the Public
Service Commission (Consultation) Regulations. All posts in the police department below the rank of Sub Inspector of Police except the clerical
staff were taken out of the Kerala Public Service Commission (Consultation) Regulations. Recruitment and conditions of service of constabulary
were governed by executive rules till 1980. The Battalion, Armed Reserve and the Local Police were previously treated as independent units for
purposes of appointment, promotion etc. Later, the personnel in the battalion were permitted to opt for transfer to the Armed Reserve after a
period of service in the battalion. Similarly, the men in the Armed Reserve were given option to be transferred to the Local Police after completing
a minimum service and on passing the Catechism test. It was also provided that a transferee to a new unit will be ranked as junior most in the
transferred unit. Thus, a transferee from the battalion would be the junior-most in the constabulary of the Armed Reserve. Such transferees had no
occasion to pass Catechism test which was obligatory for inclusion in the waiting list for transfer to the ''Local Police'' because that test was not
part of the training in the battalion, whereas it was one such in the Armed Reserve. The result was that persons who were recruited earlier in the
battalion would not only become junior to the later recruits in the Armed Reserve but may also have to wait still more since they would be assigned
rank in the waiting list for transfer to the Local Police only after passing the Catechism test.
3. Recruitment to all posts below the rank of Sub Inspectors in the Police Subordinate Service was brought within the purview of the Public
Service Commission in 1979. The method of appointment, qualifications etc., in respect of Police Constables in the Kerala Police Subordinate
Service including the Constables in the District Armed Reserve and the battalion were laid down in the special rules issued in G.O. (Ms.)
16/80/Home, dated 17th January 1980 (S.R.O. No. 82/80). It provided for direct recruitment to District Armed Reserve and to Armed Police
Battalion. Rule 3 further stated that Armed Reserve and battalion shall be separate units for purpose of recruitment. It is necessary to point out at
this juncture that for the recruitment to the Armed Reserve as well as to the battalion the qualification prescribed, method of recruitment and the
recruiting agency are the same. The above rules did not make any provision regarding the fixation of seniority of persons directly recruited to the
Armed Reserve vis-a-vis, those transferred to it from the battalion. So, the rules were amended by G.O. (P) No. 125/80/Home dated 26th
February 1980 by incorporating two provisos to Rule 3.
They are:
Provided that, notwithstanding anything contained in Rule 27 of the General Rules of the Kerala State and Subordinate Services Rules, 1958, the
seniority of a Police Constable appointed to a District Armed Reserve from an Armed Police Battalion shall be determined by the date of the order
of his first appointment or date of first effective advice of the P.S.C. for his appointment, as the case may be, to the post of Police Constable in the
Armed Police Battalion:
Provided further that nothing contained in the above proviso shall adversely affect the seniority of those Police Constables who have already been
appointed to the District Armed Reserve, before the date of coming into force of the Recruitment Rules to the post of Police Constables in the
Kerala Police Subordinate Service (Amendment) Rules, 1980 published under notification Government Order M/s 125/80/Home, dated 26th
December 1880.
The validity of this amendment was challenged before this Court in O.P. Na 9065/83 and connected petitions. The dispute that was to be resolved
in those petitions was as to whether the seniority of personnel in the Armed Reserve units of the State Police force has to be determined on the
basis of appointment in that unit under Rule 27(a) of the Kerala State and Subordinate Services Rules or such seniority has to be determined with
reference to the date of enlistment in the Armed Police wing of the State Police force irrespective of the unit in which the concerned persons were
appointed. The validity of the proviso was upheld by this Court holding:
The effect of the proviso to Rule 3 is only to ensure that for purpose of determining seniority in the Armed Police Units, Rule 27(c) of the Kerala
State and Subordinate Services Rules shall apply alike to all men enlisted into the Armed Police irrespective of the unit of enlistment.
This decision of the Single Bench has been upheld in Writ Appeal No. 477/87 and connected matters. The resultant position is that the seniority of
Constables appointed in the Armed Reserve will be fixed on the basis of the date of recruitment to the District Armed Reserve or the date of
appointment in battalion in the case of personnel who are transferred from the battalion to the Armed Reserve as the case may be. From this, it is
abundantly clear that there are two methods of appointment to Armed Reserve, one by direct recruitment and the other by transfer from the
battalion on completion of a minimum period of service in the battalion.
4. While matters continued as above, vacancies in the post of Police Constables in the Armed Reserve in various districts were reported to the
Public Service Commission for direct recruitment. Accordingly, the P.S.C. notified the posts in the various districts. In response to the notification
a large number of candidates, including the Petitioners in these cases, applied for the posts. After a due process of selection the Commission
prepared a ranked list of successful candidates for advice to the vacancies in the Armed Reserve. As per the rules of procedure of the Commission
the ranked list published by the Commission shall remain in force for a period of one year from the date on which it was brought into force,
provided that the list will continue to be in force till the publication of a new list after the expiry of a minimum period of one year or till the expiry of
three years whichever is earlier. In the notification issued by the Commission the number of vacancies in various districts were also mentioned. To
fill up those vacancies candidates from the ranked list were advised. They were given appointments.
5. The dual method of appointment to the post of Police Constables in the Armed Reserve was found to be adversely affecting the personnel in the
battalion in the matter of their seniority and posting in the ''Local Police''. The Government took a policy decision to stop direct recruitment to the
Armed Reserve and to fill up the vacancies in the Armed Reserve by transferring personnel from the battalion on completion of seven years of
service. That order, G.O. (Rt.) No. 27014/86, dated 17th July 1986, thus, sought to modify the rules relating to recruitment to the Armed
Reserve. That executive order was, later, incorporated in the statutory rules by G.O. (P) No. 34/89/Home, dated 10th March 1989. The
amendment brought to Rule 3 reads as follows:
Units of appointment.- The District Armed Reserve and Armed Police Battalions shall be separate units for appointment and the posts in the
District Armed Reserve shall be filled up by transfer of Constables from the Armed Police Battalions as per the guidelines to be fixed by the State
Government from time to time.
This amendment was brought into force with retrospective effect from 17th July 1986, the date on which the Government took the policy decision.
On account of the executive order and the subsequent amendment to the statutory rules, vacancies which arose subsequent to the publication of
the ranked list were not reported to P.S.C. So, the Petitioners and similarly situated persons who are ranked by the Commission have lost the
chance to get advised to those vacancies. Consequently, they challenge the amendment to the special rules.
6. The main argument advanced by the learned Counsel representing the Petitioners is that the Petitioners have secured a vested right to be
considered for appointment to the vacancies in the Armed Reserve and those rights are not to be interfered with by the Government by amending
the rules. It is their further contention that even if the Government is found entitled to change the method of appointment to Armed Reserve, that
amendment could not have been given retrospective operation with effect from 17th July 1986.
7. The Public Service Commission is a Constitutional functionary. It is invested with the responsibility of making recruitment to the services under
the Government. That machinery is to recruit candidates for appointment to the Armed Reserve. The vacancies in the Armed Reserve were
notified to the Commission. It took action to recruit candidates. After a successful process of selection, they prepared a select list. That select list is
to be in force for a minimum period of one year. If that list is not superseded by a fresh one it will continue to be in force for a total period of three
years. All the vacancies that arise during the continuance of that list will have to be filled up from candidates ranked in the list. Otherwise the
exercise done by the Commission will become futile. On these basis it is argued that the amendment which has now been brought out has brought
the process initiated by the Commission to a grinding halt which has been condemned by this Court in Velayudhan v. Secretary to Government
1985 KLT 795. Accordingly, learned Counsel submit that the amendment has to be quashed.
8. It is conceded before me by the learned Counsel appearing on either side that the P.S.C. advised candidates from the ranked list for filling up
the vacancies that were notified by the Commission. Since the notified vacancies in the various districts have been filled up by candidate selected
by the Commission, it cannot be held that the amendment has brought the process of selection initiated by the Commission to a grinding halt.
9. The facts in Velayudhan''s case 1985 KLT 795 will not in any way go to support the arguments advanced by the learned Counsel representing
the Petitioners. In that case, as per the special rules, then in force, no one in the lower category was entitled to be promoted and appointedas
Foreman. In such a contingency the vacancy was notified to the Public Service Commission for direct recruitment. While the process of selection
was in progress, the Government amended the special rules. On account of the amendment, Velayudhan became entitled to promotion to the post
of Foreman. But a candidate advised by the Commission was appointed. When it was challenged, this Court held that on the date of the
occurrence of the vacancy Shri Velayudhan was not qualified to hold the post and that the amendment to the rules brought out subsequently will
not entitle him to claime the post with effect from the date of the occurrence of the vacancy. After finding that Shri Velayudhan had no right to the
post when the vacancy arose and when it was notified to the Commission, this Court observed:
Public Service Commission is a constitutional functionary which is invested with the responsibility of making recruitment to the State Government
service. Once the machinery for recruitment has been set in motion by notifying the vacancy to the Public Service Commission it cannot be brought
to a grinding halt by amending the special rules and making the recruitment to a futile exercise.
This observation cannot help the Petitioners in this case because the Commission advised candidates for filling up all the notified vacancies from the
select list prepared by it. The candidates so advised were appointed. Thus, the procedure initiated by the P.S.C. has under no circumstance been
brought to a grinding halt.
10. The question whether the Government has got power to withdraw the post, already within the purview of the Public Service Commission on
the date of notification issued by the Commission, by amending the rules came up for consideration before the Supreme Court in I.J. Divakar and
Others Vs. Government of Andhra Pradesh and Another, . In that case, the vacancies in the post of Junior Engineers in the Andhra Pradesh
Engineering Service were notified to the Public Service Commission. The Cpmmission invited applications for the post. Eligible candidates were
interviewed by it. After the conclusion of the interview the Commission was on the process of finalising the select list. While so, in exercise of the
powers conferred by the proviso to Clause (3) of Article 320 of the Constitution, the Government excluded from the purview of the Commission
all appointments by direct recruitment to the post of Junior Engineer. This was so made for regularising the services of temporary servants who
were appointed by direct recruitment by the Government. Upholding the power of the Government to exclude from the purview of the Commission
the selection to a post, it was observed:
The power to make such a regulation was not disputed because the power Hows from the proviso to Clause (3) of Article 320. As stated earlier,
the only contention is that as in respect of the post of Junior Engineer an advertisement was already issued and the Commission was in the process
of selecting candidates, the power under the proviso to Clause (3) of Article 320 could not be exercised. We see no substance in this contention
and the contention must be negatived.
11. Reliance was also made on the decision in P. Mahendran v. State of Karnataka AIR 1990 S.C. 404, to contend that Government have no
power to amend the rules so as to make the procedure initiated by P.S.C. for selection of candidates infructuous. In this case P.S.C. invited
applications on 28th September 1983 from candidates having Diploma in Mechanical Engineering as well for the post of Motor Vehicle
Inspectors. After holding test and interview Commission prepared a selection list on 22nd June 1987. Selected candidates were given intimation of
their selection and Government took steps for imparting them the training before appointing them as Motor Vehicle Inspectors. While so, the State
Government amended recruitment rules on 14th May 1987 omitting qualification of Diploma in Mechanical Engineering for the post of Motor
Vehicle Inspectors. By this amendment holders of Diploma in Automobile Engineering became exclusively eligible for appointment. Some
unsuccessful candidates challenged the selection of persons holding Diploma in Mechanical Engineering in pursuance of the notification, dated 28th
September 1983. State contended that the amendment of 1987 was not retrospective and the amended rules does not affect the selection.
Administrative Tribunal held that after the amendment of May, 1987 the Commission could not determine the result on the basis of the unamended
rules Admittedly the Amending Rule of May, 1987 did not contain any provision enforcing the amended rule with retrospective effect. In the
absence of express provision in the amending rules, it has to be held that the amendment is prospective in nature. Rules which are prospective in
nature cannot take away or impair the rights of candidates having the requisite qualification on the date of application and date of selection. In this
view Their Lordships observed:
It is well settled rule of construction that every statute or statutory Rule is prospective unless it is expressly or by necessary implication made to
have retrospective effect. Unless there are word in the statute or in the Rules showing the intention to affect existing rights the Rule must be held to
be prospective. If a Rule is expressed in language which is fairly capable of either interpretation it ought to be construed as prospective only. In the
absence of any express provision or necessary intendment the rule cannot be given retrospective effect except in matter of procedure. The
amending rule of 1987 does not contain any express provision giving the amendment retrospective effect nor there is anything therein showing the
necessary intendment for enforcing the Rule with retrospective effect. Since the amending Rule was not retrospective, it could not adversely affect
the right of those candidates who were qualified for selection and appointment on the date they applied for the post, moreover as the process of
selection had already commenced when the amending Rules came into force. The amended Rule could not affect the existing rights of those
candidates who were being considered for selection as they possessed the requisite qualifications prescribed by the Rules before its amendment
moreover construction of amending Rules should be made in a reasonable manner to avoid unnecessary hardship to those who have no control
over the Subject matter.
The Court went on to state that the selection made by P.S.C. could not be held as illegal as the process of selection had commenced in 1983
which had to be completed in accordance with law as it stood at the commencement of the selection. The amended rule could not thus invalidate
the selection made by the Commission. According to me this decision cannot apply to the facts of this case. The amendment specifically provides
for retrospective operation from 17th July 1986. It has in no way gone to affect the selection of candidates and the advise of candidates to the
vacancies notified by the Commission. Since the notified vacancies have been filled up by candidate advised by the Commission and the
amendment has been specifically made effective from an anterior date viz., 17th July 1986, I do not find any ground to interfere with the action of
the Government. In Mahendran''s case AIR 1990 S.C.404. Their Lordships after referring to I.J. Divakar and Others Vs. Government of Andhra
Pradesh and Another, , took the view that the Government in exercise of its constitutional power can take away the power of the Public Service
Commission to conduct selection or prepare select list for filling up any post in a service under the Government. Thus, it is crystal clear that the
Government have the power to exclude from the purview of the P.S.C. any post even while the Commission is proceeding with the process of
selection of candidates to that post. In Sahadeva Valigan v. State of Kerala 1988 (1) KLT 202, this Court has upheld the order of the
Government taking out the post of Munsiffs and Judicial Magistrates of Second Class from the purview of the P.S.C. while the Commission was in
the process of selection of Munsiffs. In view of these decisions, it is now futile on the part of the Petitioners to contend that the Government have
no power to change the special rules altering the method of appointment to the Armed Reserve.
12. Yet Anr. argument advanced by the learned Counsel representing the Petitioners is that the amendment with retrospective effect has gone to
adversely affect the vested rights of the Petitioners and consequently, that amendment is illegal. According to counsel, by the inclusion in the select
list the candidates secured a vested right to be considered for appointment to the vacancies that arise while the list continues to be in force. This
vested right should not have been interfered with. I find it difficult to agree with this argument. Rule 3(b) of Part II Kerala State and Subordinate
Services Rules states that inclusion of a candidate''s name in any list of approved candidates in any service or any class or category in a service
shall not confer on him any claim to appointment to the service, class or category. Thus, a mere inclusion of the name in the list prepared by the
Commissioner will not confer on any one any claim to appointment It is well settled principle of law that so far as the Government servants are
concerned, their conditions of service depend on the rules in force and that rules can be unilaterally altered by the rule making authority. That being
the position, it is well within the power of the rule making authority to prescribe a different mode of appointment to Armed Reserve. As per the
amended rule, no direct recruitment can be resorted to for filling up the vacancy in the Armed Reserve. So, the Petitioners cannot claim any right to
be appointed to the post as per the rules now in force.
13. Yet Anr. argument that is advanced by the learned Counsel representing the Petitioners is that the amendment of 10th March 1989 should
have only prospective operation and should not have been made effective from 17th July 1986. If the Rule was prospective only, then all vacancies
which arose prior to 10th March 1989 should have been filled up by candidates included in the select list. This argument cannot also hold good,
because it is well settled that the power to frame rules to regulate the conditions of service under the proviso to Article 309 of the Constitution
carries with it the power to amend or alter the rules with retrospective effect. Section 2(1) of the Kerala Public Service Act, 1968 specifically
authorises the Government to make rules either prospectively or retrospectively to regulate the recruitment and conditions of service of persons
appointed to public services. Reference may be made to the decisions in B.S. Vadera Vs. Union of India (UOI) and Others, , Raj Kumar Vs.
Union of India (UOI) and Others, , K. Nagaraj and Others Vs. State of Andhra Pradesh and Another, , and T.R. Kapur and Others Vs. State of
Haryana and Others, . This rule is subject to a well recognised principle that the benefits acquired under the existing rules cannot be taken away by
an amendment with retrospective effect. In other words, the Government have no power to make a rule with retrospective effect which affects or
impairs vested rights. In the instant case, Petitioners have not acquired any vested right to the posts. This is clear from Rule 3(b) of Part II, K.S.
and S.S.R: The vacancies that were notified to the P.S.C. were filled up by candidates selected by the Commission. Petitioners who have got
ranks lower down in the list cannot claim the vacancies which arose subsequent to the amendment. According to me, none of their rights, much
less, vested rights, has been interfered with by the amendment.
14. Reliance was placed on the decision in S. Govindaraju Vs. Karnataka S.R.T.C. and Another, , in support of the contention that a person
included in the select list has got a vested right to be considered for appointment as and when the vacancy arises. This right having been interferred
with by the amendment, it is contended that this Court is to interfere with the amendment. In Govindaraju''s case (1988) 3 S.C.C. 273, Petitioner
was selected for appointment as Conductor in the Karnataka State Transport Corporation. His name was placed in the select list prepared by the
selection committee constituted under the Karnataka State Road Transport Corporation (Cadre and Recruitment) Regulations, 1982. He was not
given a regular appointment. He was appointed to work as Conductor in a temporary vacancy. He worked for more than 240 days. While so, his
services were terminated on the ground of his being found unsuitable. The termination order further stated that he will forfeit his chance for
appointment in terms of the selection and his name was deleted from the select list. This order was issued without affording him an opportunity of
being heard in the matter. Dealing with the issue, Their Lordships of the Supreme Court observed:
Once a candidate is selected arid his name is included in the select list for appointment in accordance with the regulations he gets a right to be
considered for appointment as and when vacancy arises. On the removal of his name from the select list serious consequences entail as he for feits
his right to employment in future. In such a situation, eventhough the regulations do not stipulate for affording any opportunity to the employee, the
principles of natural justice would be attracted and the employee would be entitled to an opportunity of explanation, though, no elaborate enquiry
would be necessary. Giving an opportunity of explanation would meet the bare minimal requirement of natural justice. Before the services of an
employee are terminated, resulting in forfeiture of his right to be considered for employment, opportunity of explanation must be afforded to the
employee concerned.
(emphasis added)
The above statement has no application to the facts of this case.
15. The last argument advanced by the learned Counsel is that the date, 17th July 1986, has been fixed arbitrarily and the amendment has been
given retrospective effect from that arbitrary date. Since that date has no nexus with the object sought to be achieved by the amendment, it is
submitted that the rule should be held to have only prospective operation. I do not find my way to agree with this argument either. By G.O. (Rt.)
No. 2014/86, dated 17th July 1986 the Government have taken a policy decision to give a go bye to direct recruitment to the constabulary in the
Armed Reserve. The amendment to the rule was brought forth for giving effect to that policy decision. It is open to the Government to constitute
different cadres in any particular service as it may choose according to its administrative convenience and expediency. So also, it is open to the
Government to prescribe or alter the method of appointment to various categories of posts in its service. Taking note of the hard-ships felt by the
personnel in the battalion the Government took a policy decision to absorb them into the Armed Reserve on their putting in certain number of years
of service in the battalion. That policy decision is not to be interfered with by the High Court under Article 226 of the Constitution. The
Government took that policy decision as evidenced by the order, dated 17th July 1986. While bringing out the amendment, the Government gave
statutory backing to that policy decision. I do not find any ground to interfere with the above action.
16. Physically handicapped persons who had to their credit one year of total Government service as provisional appointees as on 5th January
1984 were allowed to be regularised in the service. The fixation of the date, 5th January 1984, was challenged before this Court in Pathai v. State
of Kerala 1984 KLT 1009. This Court repelled that attack on the ground that 5th January 1984 was the date on which the Council of Ministers
took a decision to allow the continuance in service of handicapped persons in provisional service who had to their credit one year of Government
service. The Division Bench observed:
This is a Government policy involving financial implications and administrative expediency; and the High Court would not be justified In the
purported exercise of power under Article 226 of the Constitution in extending the benefits arising out of such a decision to personnel who are
expressly or by necessary implications excluded from the class of personnel for whose benefit the decision has been meant. Speaking broadly,
Courts would be slow in interfering with the policy decisions of the Government.
In Nek Shyam Shamsheri and Another Vs. State of Uttar Pradesh and Others, , the facts are as follows: The Government of U.P. increased the
post of selection grade from 15 percent to 20 percent by its order, dated 1st November 1983. As a result, the number of selection grade posts
became 68 and after 1st November 1983 selection grade would be available to members of Higher Judicial Service including Additional Sessions
Judges. In pursuance to that decision, the service rules were amended on 17th January 1984. As the amendment was prospective, the Additional
Sessions Judges were granted selection grade from 17th January 1984 only. Since the Government had taken the policy decision on 1st
November 1983, to give that benefit to Additional Sessions Judges, Their Lordships observed:
In our opinion, the date of amendment of Rule 27 has no bearing on the question from which date Additional Sessions Judges or the Additional
District Judges will be granted the Selection Grades. That question is to be decided by the Government and the Government having already
decided that these members of Higher Judicial Service should be granted Selection Grades with effect from November 1, 1983, that decision will
stand.
In the instant case, the Government took the policy decision to stop direct recruitment to the Armed Reserve on 17th July 1986. While amending
the rules the Government wanted to give effect to their policy decision with effect from the date of the decision itself. Hence the rule was made
retrospective from 17th July 1986. There is nothing illegal for this Court to interfere with it.
17. Shri K. Balakrishnan, learned Counsel representing the Petitioner in O.P. No. 1917/90 advanced yet Anr. argument. According to him, the
guidelines under which the personnel from the battalion are to be appointed by transfer in the Armed Reserve have not been laid down in the
amended rules. As per the rules, they are to be absorbed in the Armed Reserve in accordance with the guidelines to be fixed by the Government
from time to time. This delegation of power to the Government to fix the norms for absorbing personnel from battalion to Armed Reserve is
beyond the rule making power. The rule making authority which is a delegate of the Legislature, is not to further delegate the power to any other
authority including Government. Since this principle has been violated, according to counsel, the rule as amended cannot be held to be valid.
Though, at the first blush, this argument would appear to be attractive, on closer scrutiny, I do not find any merit in the same. By the rule, the
method of filling up the vacancy in the Armed Reserve has been laid down. The qualifications to be satisfied by candidates for getting so
transferred are not mentioned therein. When the broad outline is fixed by the statute, modality can be fixed by executive orders. Aspects which are
not covered by the parent-Act or subordinate legislation can be dealt with by executive orders. The executive orders are not to vary or modify the
rules. Those orders can supplement the same provided they do not in any way interfere with the rules. This legal position is not in controversy.
Viewed in this light, I do not find any ground to interfere with the rules on the ground that the subordinate legislation has further delegated the
powers to the executive Government in fixing the guidelines for the transfer. Over and above this, it is to be borne in mind that Petitioners are not
persons entitled to challenge the amendment for none of their legal rights are affected by the Rules. On these grounds, I over-rule this contention as
well.
The result, therefore, is the Petitioners are not entitled to any of the reliefs asked for. The Original Petitions fail They are accordingly dismissed.