11. The learned Standing Counsel for the PSC submits that the proceedings pursued by the Government are per se wrong and illegal in all respects. The Commission right from the beginning, was resisting such action being pursued as a matter of course; relaxing the norms, simply invoking the power under Rule 39 of the Kerala State and Subordinate Services Rules, to cater to the demand of an individual. A reference was made in this regard in the Note Files [copies of which are forming part of the records (page No.89)]. The learned Standing Counsel for the PSC points out that the Secretary to the Government had objected to the relief sought for by the 4 th respondent; but considering the existence of Rule 39; further course of action was also stipulated to be made, i.e., after taking a decision by the Law Department and to have the file routed through the Chief Secretary for approval and orders. This has not taken place as evident from the ‘File Noting’ and no recommendation has been given by the concerned Department or the Chief Secretary, but for the opinion stated as procured from the Law Department, which however does not find a place anywhere in the proceedings. The learned counsel further submits that, admittedly the 4 th respondent was never called for any interview (for not having satisfied the physical measurements). Even on satisfying the physical measurements, a candidate has to undergo a ‘physical efficiency test’, which has not taken place in the case of the 4 th respondent. The necessity to undergo the training of ‘2½ years’ has been given a go-bye; and out of turn promotion has been given to the 4 th respondent without considering the chance for grievance to other similarly situated persons and nobody else has been given notice in this regard. The rejection made by the PSC is not merely for want of the chest measurement; adding that the merit and suitability of the 4 th respondent could not be assessed, having got eliminated at the time of verifying the physical measurements itself.
12. The learned Government Pleader submits that the decision taken granting of the benefit of Rule 39 was based on the opinion obtained from the Legal Department to the effect that there was no legal bar in considering the same and that the proceedings were finalised only in the particular facts and circumstances as revealed from Annexures.A16 and A21 orders. It is true that a counter affidavit has been filed by the 2 nd respondent in terms as aforesaid, but no counter affidavit has been filed by the 1 st respondent/State. Sri.P.Deepak, the learned counsel, who entered appearance on behalf of the 4 th respondent submits that Annexure.R4(a) amendment to the relevant Rules was brought about on 10.1.2006. As a matter of fact the chest measurement of ’84 cms.’ was stipulated only as per the notification issued in the year 2004; prior to which, it was only ’79 cms.’ By virtue of Annexure.R4(a) amendment effected from 10.1.2006, it was again brought down to 79 cms. and as such, the higher requirement of chest measurement existed only for a period of about one year. After clearing the written test, by the time when the physical measurement was taken, the amendment reducing the chest measurement had already come into force. It was accordingly, that Annexure.A8 representation was preferred before the Government on 29.6.2010 for invoking Rule 39 of the Kerala State and Subordinate Services Rules and to give promotion with all consequential benefits retrospectively. This has been considered favourably and as such, it was never a question of extending any undue advantage to the 4 th respondent, to the exclusion of the petitioner, who was never in the picture at that point of time. The learned counsel submits that the verdict passed by this Court and the Apex Court against the 4 th respondent cannot place any hurdle on the way of the Government in considering the claim with reference to Rule 39 of the Kerala State and Subordinate Services Rules; which position was clarified by the Law Department and hence the proceedings are within the four walls of the law.
13. There is no dispute with regard to the sequence of events or the chronology as displayed. The right of the petitioner to be considered and appointed against the slot vacated by Sri.Shanavas (Sl.No.8) has already attained finality by virtue of Annexures.A2 and A3 judgments and as such, the petitioner cannot establish any fresh right to be appointed against the vacancy occurred in the year 2008, by way of independent proceedings of this nature. But the grievance of the petitioner came to be aired in view of a different cause of action, based on the undue favours given by the Government to the 4 th respondent. In the case of the 4 th respondent also, there is no dispute that the notification issued by the PSC was based on the relevant Rules which existed at that point of time, stipulating minimum chest measurement as ’84 cms’. There is no challenge against the Rule or the notification.
14. Amendment of the Rule reducing the chest measurement came into force only from 10.1.2006, i.e., after the notification. It may be true, that the 4 th respondent is a person who satisfied the reduced requirement under the amended provision, but whether he could be considered in isolation by invoking power under Rule 39 of Part II, KS & SSR, is the question. It is settled law that the rules of the game cannot be changed during the middle of the game, as made clear by the Supreme Court in K. Manjusree Vs. State of Andhra Pradesh & another, (2008) 3 SCC 512. A Division Bench of this Court had also occasion to consider the scope of intervention under such circumstance, in connection with the selection of District Judges of this Court and the proceedings including the decision taken by the Full Court on the administrative side were intercepted as per the decision reported in Jayachandran v. High Court of Kerala, 2010 (4) KLT 49 (to which one of us [PRRM (J)] was a member). This Court also finds that the Apex Court had occasion to consider the said verdict passed by the Division Bench of this Court, and the scope of the invocation of power under Rule 39 of Part II, KS & SSR in Lakshmi v. State of Kerala, 2012 (1) KLT 902 (SC) The observations made by the Supreme Court in paragraphs 13 and 18 are extracted below:-
13. The short question that falls for determination in the above backdrop is whether the number of vacancies to be filled up was six as claimed by the High Court or ten as claimed by the appellant. While it is not disputed that the initial notification confined itself to filling up of six vacancies only, confusion relating to the said number arose on account of the High Court recommending invocation of R.39 by the Government to avoid a situation where the candidates who had already been appointed pursuant to the selection process had to go out of service on account of the Court directing preparation of a revised merit list on the basis of the unamended Rules. It is common ground that the vacancies that had arisen after the issue of the Notification were sought to be filled up only with the solitary purpose of somehow saving the three candidates from ouster who were bound to lose their jobs on account of the re-casting of the merit list. All that the High Court intended to recommend to the Government was that four vacancies that were available in the cadre, though the same had arisen after the issue of the Recruitment Notification, could be utilised by the Government if it invoked its power under R.39. The candidates facing ouster could then be continued as an exception to the general rule. It is also beyond dispute that the said recommendations could not have been accepted once the award of additional marks by way of moderation was struck down by the High Court in Jayachandran’s case. The inevitable consequence flowing from that judgment was that anyone who had found place in the merit list only because of the benefit of moderation would have to lose that place and go out of the list. Once that happened the question of retaining the services of the three candidates by invocation of powers vested in the Government under R.39 did not arise. The High Court was in the light of the subsequent development justified in recalling the recommendations made by it which in turn had the effect of limiting the number of vacancies to those originally notified. Mr. Rao was, therefore, right in contending that the proposed utilisation of four vacancies did not ipso facto add to the number of already notified. The addition was contingent upon the Government agreeing to exercise its power under Rules 39. Since the Government did not and could not possibly exercise the said power as a result of the quashing of the marks awarded by way of moderation the proposed addition of the vacancies to the number already notified became clearly infructuous. The High Court could and had rightly recalled the recommendations in the light of the said subsequent development.
18. In the light of the above pronouncements the power vested in the Government under R.39 (supra) could not have been invoked for filling up the vacancies which had not been advertised and which had occurred after the issue of the initial advertisement much less could that be done for purposes of protecting the service of someone who had found a place in the merit list on account of additional marks given to him and who was bound to lose that place by reasons of the judgment of the Court.
15. We are given to understand that the finalisation of the proceedings pursuant to the verdict passed by the Division Bench of this Court resulted in exclusion/elimination of some candidates who were already appointed as District Judges based on the ‘moderation’ given; which made the said persons aggrieved; having lost the selection and also their clients/briefs-when they were practising as Lawyers. This was considered by the ‘Full Court’ and the matter was referred to the Government for considering whether the power under Rule 39 of the Kerala State and Subordinate Services Rules could be invoked. When things were being pursued by the Government in this regard, the same was sought to be intercepted at the instance of others, who are waiting in the queue to get appointment; by approaching the Apex Court and the Apex Court has held that, it was not a case where power of the State Government could be invoked under Rule 39 of the Kerala State and Subordinate Services Rules.