KERALA VARMA R Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner was appointed as a Store-Keeper Physician in the Ayurvedic College, Trippunithura, on 20 7 1961. No qualifications had been prescribed for that post at that time. The petitioner continued to hold the post till October 1964. By a notification published in the Gazette dated 5 6 1962 the Kerala Public Service Commission called for applications for appointment to the post of Store-Keeper Physician in the Ayurvedic College, Trippunithura. The petitioner also applied and appeared before the Commission for interview. The result of the selection was published in the Gazette dated 30th April, 1963. The petitioner was ranked 2nd in the list. The 4th respondent was not in the list because he was not an applicant for the post. One O. Moideen Ahamed obtained the first rank and he was appointed to the post. He joined duty in the College as Store-Keeper Physician on 23 3 1963 and the petitioner was transferred to the Ayurvedic College Hospital, Trippunithura, where he was posted as a physician. On 18 6 1963, Moideen Ahamad was transferred to another department and the post having fallen vacant, the petitioner was again appointed as Store-keeper physician in the College. On 27-11-1962 Government issued orders prescribing new qualifications for the post of store-keeper physician in the Ayurvedic College, Trippunithura. The prescribed qualifications were: A Degree or Diploma in Ayurveda; two years' experience in the identification and handling of Ayurvedic raw materials and drugs either as store-keeper physician in the Government or private Ayurvedic institutions; and willingness to furnish a security of Rs. 500/-. The Kerala Public Service Commission issued a notification in the gazette calling for applications to the post (Ext. P-1). The petitioner also applied and he appeared for the examination conducted by the Commission. The result of the examination was published in the Gazette dated 10 3 1964. The petitioner was ranked No. 1 in the select list evidenced by Ext. P-3. Therefore, normally petitioner ought to have been appointed to the post of store-keeper physician of the Ayurvedic College, Trippunithura. But the 2nd respondent in consequence of a communication from the Public Service Commission recommending that the 4th respondent should be appointed to the post, appointed him. Petitioner filed O. P. No. 63 of 1964 to quash the order. The petition was dismissed. Writ Appeal No. 181 of 1964 was filed by the petitioner against the judgment in O. P. No. 63 of 1964 and by Ext, P-6 judgment the appeal was disposed of. By that judgment Government was directed to consider the question whether for recruitment to the service in question the principle of communal reservation is applicable or not in the light of the special rules, if any as contemplated by R.14 of the Kerala State & Subordinate Services Rules, 1958 and pass appropriate orders. The petitioner also filed a petition dated 25 10 1965 before Government. On 15 6 1966 Government passed an order rejecting the petition dated 25 10 1965. Government made certain amendment to R.14 of the Kerala State and Subordinate Services Rules. The amendment has been given effect to from 17 12 1958 (vide: G.O. (P) 202 Public (Rules) dated 21 5 1966). Similarly, the notification issued by Government under R.14 specifying the services to which the rules of reservation shall be applied, has also been given retrospective effect from 17 12 1958 (vide: Government Notification No. 7415/66/PD) dated 21 5 1966.)

(2.) Mr. V. K. K. Menon, appearing for the petitioner, submitted that the Government had no power to issue the notification dated 21 5 1966 with retrospective effect from 17 12 1958 and in support of this, he relied on the decisions in The Income Tax Officer v. M. C. Ponnoose ( 1965 KLT 713 ) C. W. Motor Service (Private) Ltd. v. State of Kerala (AIR 1959 Kerala 347) and Rajalekshmi Motor Service v. Government of Kerala ( 1959 KLJ 1425 ). Para.6 of the judgment in 1959 KLJ 1425 is as follows: