SANTHOSH KUMAR Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner in this O.P.(KAT) was the 3rd applicant in O.A.

(2.) The Tribunal, on a consideration of the O.A., found that the substantial vacancy that was initially notified by the Notification dtd. 28/7/2007 could be seen as extinguished only on a person being advised against the same, issued with an appointment order, and actually having joined duty and discharged the duties attached to the post. Reliance was placed on Rule 2(1) of Part I of the Kerala State and Subordinate Services Rules to hold that the term "appointed to a service" meant that the incumbent had to discharge for the first time the duties of a post borne on the cadre of such service or when he commenced the probation, instruction or training prescribed for members thereof. The Tribunal essentially held that the substantial vacancy, which was relatable to a period prior to the introduction of the Special Rules, was not extinguished and continued to remain in existence till such time as a candidate had been appointed to the vacancy and commenced the discharge of his duties in the post in question. It was found that inasmuch as the NJD vacancies were vacancies that were traceable to a period prior to the amendment of the Special Rules with effect from 4/6/2008, there was no illegality in the PSC issuing the notification dtd. 29/9/2012 and continuing with the selection process for the purposes of filing up the NJD vacancies with direct recruits. The O.A. was therefore dismissed for the said reasons.

(3.) Before us, it is the contention of the Sri.Jaju Babu, the learned senior counsel, assisted by Adv. Sri. Brijesh Mohan appearing for the petitioner that it is now well-settled that there is no mandatory Rule which envisages that vacancies have to be filled in accordance with the law prevailing as on the date of arising of the vacancy. It is his contention that when there is a change in the Rules governing recruitment, the vacancies that arise subsequent to the amendment of the Rules have to be filled in accordance with the amended Rules and not in accordance with the erstwhile Rules. He places reliance on the decision of the Supreme Court in State of Himachal Pradesh and Others v. Raj Kumar and Others - [JT 2022 (5) SC 516] for the said proposition. He also places reliance on the judgment of the Supreme Court in Indian Bank v. R. Jayashree - [2001 SCC Online SC 23], where the Supreme Court, while reversing a Division Bench judgment of this Court, observed that when a vacancy arises in a post as a result of a non-joining of a candidate, the resulting vacancy has to be seen as a fresh vacancy to which a fresh appointment has to be made. It is his submission that in view of the admitted fact that the vacancies in question were NJD vacancies, the mere fact that the vacancies could be traced to a period prior to the amendment of the Special Rules could not be a reason to hold that the vacancies had to be filled in accordance withthe erstwhile Rules.