MOHANAN Vs. DIRECTOR OF HOMEOPATHY

JUDGEMENT

(1.) This matter relates to appointment to the post of Pharmacist Grade II in the Department of Homeopathy under the Government of Kerala. In 1995, the Kerala Public Service Commission (for short 'the PSC) invited applications for selection to the post of Pharmacist Grade II in the Department of Homeopathy under the Government of Kerala. Notification dated 2-9-1995 was published in the official gazette on 17-10-1995. The last date for submission of applications was 29-11-1995. A written test and interview were conducted and the rank list dated 27-6-2003 was published. In the meanwhile, the Government issued the Special Rules for the Homeopathy Subordinate Service Rules, 1999, in supersession of all existing Rules and Orders on the subject prescribing qualifications for the various posts in the Homeopathy Subordinate Service, including those for the post of Pharmacist Grade II by changing the previously existing minimum qualifications prescribed for appointment to the said post with effect from 12-4-1999. A dispute arose as to whether after the amendment to the Rules vacancies could be filled up from the list published by the P.S.C., which was prepared based on the pre revised qualifications. Some of the candidates included in the list filed O. P. No. 27117/2002, for a direction to the Director of Homeopathy, Thiruvananthapuram and the District Medical Officer, Kannur to report all vacancies of Pharmacist (Homeo) in Kannur District including the vacancies occupied by unqualified provisional promotees to the P.S.C. forthwith. There was a prayer for a direction to advice the petitioners and appoint them to the post of Pharmacist (Homeo) in the Homeopathy Department of the Government. The said original petition came up for hearing before a learned Single Judge of this Court, who, by order, dated 6-3-2006, referred it for decision by a Division Bench of this Court, perceiving a conflict between two Division Bench decisions of this Court, namely, Kunju Kunju v. State of Kerala ( 2005 (1) KLT 364 ) and Stalin v. State of Kerala ( 2006 (1) KLT 493 ). In Kunju Kunju's case, a Division Bench of this Court was considering the effect of amendment of Special Rules for the Kerala Industries Subordinate Service with retrospective effect and held that selection to the post of Industries Extension Officers has to be made in accordance with the amended Special Rules and the P.S.C. was in error in selecting the candidates and preparing the rank list in terms of the Special Rules prevailing prior to the date of retrospective commencement of the amended Special Rules. In Stalin's case, another Division Bench was considering the effect of the Kerala Homeopathy Subordinate Service Rules, 1999 on the pending selection to the post of Pharmacist initiated prior to the coming into force of the Special Rules, which is the question in issue in this case also. In that case, the Division Bench held that since the amendments have only prospective operation, in so far as the selection which has already been set in motion in accordance with the unamended rules is concerned, the same cannot be set at naught. The learned Single Judge, who considered O. P. No. 27117/2002, felt that these are conflicting decisions concerning the very same legal issue and therefore referred the matter for decision by a Division Bench of this Court. A Division Bench of this Court, before which the case came up for hearing on such reference, along with W. P. (C) Nos. 35734/2005, 5586 & 7270/2006, also felt that the impact of Kunju Kunju's case was not considered in Stalin's case, and therefore referred the cases for decision by a Larger Bench. It is under these circumstances that these cases have come up for hearing before us. Some other cases dealing with the same issue have also been tagged along with these cases, although they were not specifically referred to a Larger Bench.

(2.) Before considering the question involved, we would like to make it clear that we only intend to decide the question of law which has been posed before us and do not intend to dispose of these cases finally as the individual petitioners contend that apart from this legal question, other questions of facts are also involved, which need to be decided separately in each case. We would leave those factual disputes to be resolved by the appropriate Bench in accordance with the decision to be rendered by us on the question of law.

(3.) Let us first examine whether there is any conflict between Kunju Kunju's case and Stalin's case. Kunju Kuniu's case related to selection and appointment as Industries Extension Officers in the Industries Department. The selection process for appointment as Industries Extension Officers was initiated at a time when recruitment to the post of Industries Extension Officers was not governed by any statutory rules. The State Government, by order dated 23-8-1962, in consultation with the Kerala Public Service Commission, prescribed certain methods of appointment and qualifications for the said post. The P.S.C. invited applications for 33 posts of Industries Extension Officers by notification dated 26-5-1992, as per which the qualifications for appointment were those prescribed in the Government Order dated 23-8-1962. Before the Commission could complete the selection process i.e., even before the interviews were held, the State Government, in exercise of its powers under sub-s.(1) of S.2 of the Kerala Public Services Act, 1968, framed rules for recruitment to the Kerala Industries Subordinate Service. These Rules were named, "Special Rules for the Kerala Industries Subordinate Service, 2001 "which were published in the Kerala Gazette dated 17-2-2001. It was specifically stated in the notification itself that those Rules were deemed to have come into force with effect from 1-7-1983. The Division Bench considered the effect of the Special Rules introduced with retrospective effect on the selection process which was in progress at the time of promulgation of the Special Rules. The Division Bench, after consideration of the question, held in Para.11 as follows: