AI Structured Summary
Not yet generated for this judgment
Judgment
Mohammed Nias.C.P.,J.
All these Writ Appeals are filed by the Kerala Public Service Commission (“PSC” for short) challenging the identical orders dated 7-6-2022 wherein the learned single Judge directed the writ petitioners' applications to be considered for selection on the basis of the draft Special Rules which had not come into force.
The brief facts leading to the writ appeals are as follows: The petitioners challenge the non-inclusion of the Operator Category for selection to the post of Assistant Engineer from among the departmental candidates as they are not eligible under the existing rules. The PSC as per the notification dated, 4-5-2022 invited applications for the post of Assistant Engineer (Departmental Candidates only) in which the last date for application was fixed as 8-6-2022. The academic qualifications prescribed in tune with the existing Special Rules are as follows:
BSC Degree in Engineering (Civil/Mechanical/Chemical) of the Kerala University Or B.E.Degree in (Civil/Mechanical/Chemical) of the Madras University or any other qualifications recognized as equivalent there to .
OR
2) (a) Associate Membership Diploma of the Institution of Engineer, India, in Civil/Mechanical/Chemical Engineering or any other Diploma recognized as equivalent there to.
OR
(b)Pass in Section A and B of the Associate Membership Examination of the Institution of Engineers, India in Civil/Mechanical/Chemical Engineering.
Note. 1) B Tech/BE Degree in Civil/Mechanical/Chemical Engineering of any recognized Universities of Kerala or from UGC recognized Universities is also considered.
2) Rule 10 (a) ii of Part II KS & SSR applicable”
Kerala Water Authority (“KWA” for short) was following the Kerala State Public Health Engineering Service Special Rules and Public Health Engineering Subordinate Service Special Rules as amended from time to time in the matter of recruitment, promotion and allied matters. As per the said Rules, the post of Operator was not included in the feeder category to be considered for selection to the post of Assistant Engineer. Meanwhile, there was a proposal to amend the Rules for which the draft of the Technical Service Rules is under consideration of the Government, but the same has not been approved so far. This fact is not disputed even by the writ petitioners, as is evident from the prayers made in the writ petitions. In all the writ petitions, petitioners have sought for finalising Ext. P8 draft Special Rules of the KWA within a time frame to be fixed by the court and sought for deferring the appointment initiated as per the notification mentioned above till then. The interim order sought for in Writ Appeal No. 937 of 2022 was to stay the appointment to the post of Assistant Engineer which was under way as per the notification above mentioned. In short, the contentions of the petitioners is that on the basis of the existing Rules, the petitioners are not qualified to apply under the Notification but they will become eligible once the draft Special Rules are finalised.
The learned Single Judge who considered the matter found that the draft Special Rules are pending finalisation with the Government and despite repeated directions from this Court to finalise the same, the same has not been done. The contention of the petitioners was that they are all graduate engineers working in the KWA in the lower posts and would get a right to seek for appointment as Assistant Engineers on the finalisation of the draft Special Rules and that in the notification issued by the PSC, the qualifications are provided as per the rules in force and without reference to the draft Rules which are pending finalisation. The learned Single Judge finding that the last date of submission of the application was 8-6-2022, took note of the above factual situation and was of the opinion that the graduate engineers among the petitioners who will be eligible to apply in accordance with the draft Special Rules should also be permitted to submit their application on the basis of the qualifications prescribed in the notification and they should not be rejected on the ground that they do not have the same as per the notification presently issued, and accordingly directed acceptance of their application as a provisional measure and subject to further orders in the writ petition.
These interim orders are challenged by the PSC primarily contending that the draft rules cannot be acted upon till they come into force. More so, the PSC cannot process the applications on the basis of the rules yet to come and can only be on the basis of the existing rules. It is also the argument of the PSC that it is the admitted case of the petitioners that they are not qualified under the notification issued and as such the direction to accept their application was illegal. They also contend that serious administrative difficulty will be faced by the Commission if the interim order passed, on the eve of the last date prescribed for the application, is allowed to stand. Admittedly, the post of Operator is not included as the feeder category for the post in question as per the notification, the writ petitioners cannot be permitted to appear in the test going by the notification as per the extant rules.
The learned counsel for the writ petitioners, on the other hand, contended that there were series of orders directing finalisation of the Special Rules and no action has been taken to finalise it. The Draft Special Rules, which according to him, will be finalised could make them eligible to apply for the post of Assistant Engineers, has to be acted upon, as KWA itself has recommended amendment of the Rules. It is also their contention that since there are no Special Rules in force, Government can issue executive instructions which the PSC can also follow by issuing addendum notifications as done in the case of Water Authority itself on earlier occasions. It was taking into account the above factual scenario, that the learned Single Judge passed the interim order, and therefore, prayed for maintaining the same by dismissing the Writ Appeals.
We have heard the learned counsel for the appellant/PSC, the Learned Standing Counsel for the Kerala Water Authority, the learned Government Pleader as well as the learned counsel for the respondents/writ petitioners.
It is not in dispute that as per the notification issued by the PSC, the writ petitioners are not qualified to apply for the post of Assistant Engineer. It is also not in dispute that the draft rules which are pending finalization, could not be finalised or brought into force. The prayers sought in almost all the writ petitions are to direct the respondents to finalise the rules, and also for keeping selection process in abeyance till then and also for directing the respondents to issue addendum notification in the nature of executive orders to vary the qualifications to make them also eligible to apply for the post in question. In as much as the extant rules are not replaced so far by the proposal and draft Special Rules, the appellant PSC could not have issued a notification including any other qualification other than what is prescribed in the existing rules. This is more so when the Kerala Water Authority also did not take any conscious decision to fill up the existing vacancies other than in accordance with the extant rules. The present selection on the basis of existing Special Rules cannot be allowed to be stalled on the basis of the draft Special Rules which are yet to come into force. The interim order in these cases goes against the qualifications prescribed in the notification and has the effect of permitting ineligible candidates to appear for the selection process, which we feel cannot be done.
The learned counsel for the KWA also submitted before us that it intends to go ahead with the present selection on the basis of existing rules and not the draft Special Rules. The learned Government Pleader also submits that the draft Special Rules can be finalised only after due deliberations. It is trite that, if a particular qualification is prescribed, there cannot be any justification for allowing a selection to proceed on disregarding the qualifications prescribed therein. Since it is not disputed that the petitioners are not qualified as per the qualifications now issued, we find that the interim orders now passed cannot be sustained. May be the learned single Judge was inclined to protect the interest of the petitioner in the likely event of an imminent finalisation of the draft rules. We feel however that, even in those circumstances, the interest of the petitioners could have been safeguarded only in subsequent selection process and not in a selection process that had already commenced and was well underway. That however is a matter that can be considered along with the main relief sought in the writ petition namely, for a direction to finalise the Special Rules within a time limit .
In the above view of the matter, we allow the appeals filed by the PSC by setting aside the orders dated 7-6-2022, that permitted the petitioners to participate in the selection process for the post of Assistant Engineer, pursuant to the notification. We vacate the interim orders impugned in these appeals . We also make it clear that we have not gone into the merits of the main prayers sought for in the writ petition and we have only considered the correctness of the interim order passed in the above writ petitions. Writ petitioners are free to urge all contentions available to them in support of the main prayers at the time of the hearing of the writ petitions.
These Writ Appeals are allowed as above.