RENJEEV Vs. STATE OF KERALA

JUDGEMENT

(1.) These Original Petitions relate to the appointment and seniority of Junior Health Inspectors Grade II. In O. P. No. 6544 of 1995 the petitioners challenge Ext. P9 order whereby large number of provisional appointees in the category had been ordered to be regularised. The other contentions raised in the Original Petition than against Ext. P9 are not pursued. Petitioners 1 and 2 were rank holders in the list prepared by the Public Service Commission for appointment to the said post in Malappuram and Palghat Districts respectively. Petitioner No. 3 is a person qualified for such appointment. He aspires to submit his application as and when Public Service Commission invites application for the post. Even before the notification issued by the Public Service Commission the Government felt dearth of qualified candidates for appointment to the post and therefore invited applications for selecting candidates for training at the Government expense following the rules of communal reservation. Accordingly several candidates were selected and sent for training and they were appointed temporarily against the said posts. Such temporary appointment is usually termed as provisional appointment. Such appointments are covered by R.9(a)(1) of the General Rules. Such temporary appointment does not give rise to any claim for substantive appointment in the category. Substantive appointment is in terms of R.3 of the General Rules in the K.S. & S.S.R. First appointment on regular basis to any post in the service shall be made only on the advice of the Public Service Commission. Those candidates had not been advised by the Public Service Commission. So their appointment had been otherwise than in accordance with the rules. They were continuing for long. They represented for regularisation. Government considered their case sympathetically and consulted the Public Service Commission and sought for their advice to regularise their service. Public Service Commission did not agree to it. Government again took up the matter with the Public Service Commission for the second time seeking their concurrence for regularisation of service of such temporary appointees. Public Service Commission did not accede to the stand taken by the Government. Public Service Commission did not grant concurrence. Thereupon the Government overruled the advice of the Commission and decided to absorb such temporary appointees in the regular service. At that time there was a list prepared by the Commission and candidates were being advised for appointment on regular basis. Taking note of that circumstances, the Government decided that any absorption of such temporary hands into regular service shall be subject to filling up of the vacancy already reported to the Commission for appointment from the list prepared by them and shall be subject to the length of service of the persons in such temporary appointments. Government accordingly passed Ext. P9 order. Para.6 of Ext. P9 reads under:

(2.) Petitioners submit that this order is illegal as the Government does not have any power to relax the rules of recruitment. Rules of recruitment and rules regarding conditions of service are different. Government can relax in appropriate cases only rules regarding the conditions of service and cannot touch rules regarding method of appointment. Method of appointment to the post is covered by Ext. P1 government order. Direct recruitment is provided therein. As already mentioned, as per R.3 of the general Rules in K.S. & S.S.R. first appointment on direct recruitment shall always be on the advice of the Public Service Commission. Persons sought to be regularised as per Ext. P6 are not persons advised by the Public Service Commission. Therefore that is a variation or relaxation of the rules of recruitment. In support of this contention petitioners have relied on the decisions reported in J. & K. Public Service Commission v. Dr. Narinder Mohan, 1994 (2) SCC 630 , Dr. M. A. Hague v. Union of India, 1993 (2) SCC 213 , Arundhati Ajit Pargaonkar v. State of Mah., 1994 (5) SLR 234 .

(3.) It is an accepted position that rules of recruitment cannot be relaxed. The Constitution has made safeguard in Art.320 that State Governments or Union Government shall in appropriate cases consult the Public Service Commission for making appointment to the civil service. This is to ensure impartiality and to ensure selection by expert and independent body constituted for that purpose. The said Article envisages consultation. Therefore Government cannot appoint a person who is not advised by the P.S.C. for any appointment. Government also cannot appoint a person otherwise than in accordance with the rules without consultation of the P.S.C., the petitioners contend.