A.K. Basheer, J.

The short but important question that arises for consideration in this bunch of cases is whether the Kerala Public Service Commission is justified in refusing to advise candidates like the petitioners included in the rank list of Pharmacist (Homoeopathy) on the ground that they did not possess requisite qualification in terms of the amended special rules framed by the Government after commencement of the selection process. In other words, the question is: Are the amended rules regarding qualification, atleast vis-a-vis the appellant and petitioners, prospective or retrospective in their operation

2. A brief reference to the essential facts is necessary to answer the above question. We will be referring to the relevant dates and documents available in Writ Petition No.18087/2005.

3. The Kerala Public Service Commission (for short, the Commission) issued Ext.P1 notification in the Kerala Gazette on October 27, 1998 inviting applications for appointment, to the post, of Pharmacist (Homoeopathy) in the Department of Homoeopathy. The common notification was issued for filling up the several vacancies in 8 districts in the State. The qualifications prescribed were:

(1) A pass in SSLC examination or equivalent.

(2) Experience in dispensing homoeopathic medicine for not less than 3 years in Government Homoeopathic Hospital/Dispensary or in a dispensary run by a registered A Class Homoeopathic Medical Practitioner.

The above qualifications were in terms of those prescribed in G.O.(Ms)161/84/HG dated 21.6.1984. It is not in dispute that the selection process was completed and separate districtwise rank lists were published on various dates between April 2002 and January 2003. Admittedly the petitioners were included in the rank lists of their respective districts.

4. On April 12, 1999, the Government of Kerala framed Special Rules for the Kerala Homoeopathy Subordinate Service vide SRO.No.397 /1999. Qualifications for the post of Pharmacists (Homoeopathy) ware prescribed in the Special Rules as hereunder:

It can be seen that a certificate in Nurse-cum-Pharmacist Training Course (Homeopathy) conducted by the Government of Kerala or its equivalent became an essential qualification for the post of Pharmacists (Homoeopathy). A true photo copy of the notification has been produced as Ext.R2(f).

5. The admitted position is that the Special Rules were framed by the Government when the selection process pursuant to Ext.P1 notification issued by the Commission was in progress. The petitioners had not undergone training in Nurse-Cum-Pharmacist Training Course conducted by the Government of Kerala and therefore they would not be eligible for appointment, if the Special Rules are made applicable for selection and appointment.

6. After publication of the rank list, the Commission filled up only those vacancies which had arisen prior to the framing of the Special Rules which came into force with effect from April 12, 1999. The Commission took the views at the petitioners and other similarly placed candidates in the Rank lists who did not possess a certificate in Nurse-Cum-Pharmacist Training Course (Homoeopathy) as prescribed under the Special Rules were not eligible or entitled to be advised for appointment. It is in the above circumstances that the petitioners whose names have been included in the rank lists of various districts have come up before this Court under Art.226 of the Constitution of India.

7. A learned single Judge before whom one of the identical Writ Petitions (W.P.No.15076/2005) came up earlier held that in view of the introduction of the Special Rules, the petitioner in that Writ Petition who did not admittedly possess the requisite qualification was not entitled to be advised for appointment. Thus the learned single Judge accepted the contention of the Commission that only those among the candidates who had the requisite qualification as prescribed under the Special Rules were entitled to be advised and accordingly dismissed the writ petition. The learned single Judge had in fact followed a similar view taken by another learned single Judge in another writ petition. W.A.No.1030/2005 is filed against the judgment of the learned single Judge in W.P.No.15076/2005. The remaining Writ Petitions have been posted along with the Writ Appeal since identical question has arisen in this bunch of cases.

8. It is contended on behalf of the Commission that Rr.10 and 13 of the General Rules are unambiguous that the incumbent of a post shall have such educational and other qualifications as specified in the special rules applicable to the service in which the post is included or specified. Therefore, the petitioners who do not have the requisite qualifications as specified to the special rules for the Kerala Homoeopathy Subordinate Service Rules, cannot be heard to-say that they are entitled to be advised for the said post. It is also contended that the decision to advise only those who had the requisite qualifications under the special rules, was taken after detailed deliberations in the matter.

9. In the counter affidavit filed on behalf of respondent No.2, the Director of Homoeopathy, it is admitted that several vacancies were available when the rank lists of various districts were published. It is also admitted that the existing vacancies of pharmacists were reported to the Commission. Since the Commission had not advised candidates to fill up the vacant posts, temporary promotions were made against those vacancies subject to the condition that those departmental hands will be reverted back as and when regular hands join duty. Exts.R2(a) to (f) will show that several such vacancies were reported by the department to the Commission. More significantly, respondent No.2 has admitted that Nurse-cum-Pharmacist Training, course (N.C.P.) is not a regular ongoing training programme. The said training programme is conducted as and when trained hands are requited for recruitment. It is also conceded that the department had accorded sanction to promote Attenders/Dispensers/Nursing Assistants in the department as Pharmacists in view of the dearth of N.C.P. trained hands.

10. We have heard learned counsel for the parties at length. The learned counsel have taken us through a long number of decisions as well as some authoritative textbooks on Interpretation of Statutes, and Administrative Law. But in our view, the issue involved in these case is settled in favour of the petitioners in view of the authoritative pronouncements of their Lordships of the Supreme Court, to which we will refer shortly. Therefore, we do not deem it necessary to deal with the entire case law and also principles of statutory interpretation.

11. In P. Mahendran v. State of Karnataka (1990) 1 SCC 411 [LQ/SC/1989/615] ) a 3 Judge Bench of the Honourable Supreme Court held that every statute or statutory rule being prospective, the amendment, if any, brought into force during the course of the selection process would not in any way affect the rights if the candidates who were otherwise qualified as on the date of making the application for selection. Their Lordships further held thus:

“It is well settled rule of construction that every statute or statutory role is prospective unless it is expressly or by necessary implication made to have retrospective effect. Unless there are words in the statute or in the Rules showing the intention to affect existing rights the rule must be held to be prospective. If a rule is expressed in language which is fairly capable of either interpretation it ought to be construed as prospective only. In the absence of any express provision or necessary intendment the rule cannot be given retrospective effect except in matter of procedure…..”

12. In the above decision their Lordships had also referred to the observations made by the Court in AA. Calton v. Director of Education ((1983) 3 SCC 33 [LQ/SC/1983/88] ) and several other decisions on the point. Later the Apex Court had followed the dictum laid down in Mahendran’s case (supra) in Katti & Ors. v. Karnataka Public Service Commission & Ors. ((1990) 3 SCC 157 [LQ/SC/1990/195] ) and in Secretary, AP. Public Service Commission v. B. Swapna & Ors. ((2005) 4 SCC 154 [LQ/SC/2005/375] ).

13. In Swapna’s case (supra), their Lordships held thus:

“Once a process of selection starts, the prescribed selection criteria cannot be changed. The logic behind the same is based on fair play. A person who did not apply because a certain criterion e.g. minimum percentage of marks, can make a legitimate grievance, in case the same is lowered, that he could have applied because he possessed the said percentage. Rules regarding qualification for appointment if amended during continuance of the process of selection do not affect the same. That is because every statute or statutory rule is prospective unless it is expressly, or by necessary implication made to have retrospective effect. Unless there are words in the statute or in the rules showing the intention to affect existing rights the rule must be held to be prospective. If the rule is expressed in a language which is fairly capable of either interpretation it ought to be considered as prospective only………”

14. In view of the decisions of the Apex Court cited supra, there cannot be any doubt as regards the answer to the question whether the Special Rules framed by the Government with effect from April 12, 1999 would have any impact on the rights accrued to the petitioners are on the date of the notification issued by the Commission. Since the Special Rules did not contain any clause indicating retrospectivity of the qualifications prescribed in those Special Rules, it will have only prospective operation. Rr.10 and 13 of the General Rules have to be understood subject to the law laid down as above. Therefore the Commission has to necessarily make appointments in terms of the qualifications prescribed in Ext.P1 notification.

15. There is yet another aspect of the matter. The Government had issued G.O.Ms.233/85/GAT on June 27, 1985, a copy of which is on record as Ext.P4. In the said order, the Government had clarified that the changes in qualifications, method of appointment, age Or other conditions of recruitment introduced after the issue of a notification for selection to the post by the Public Service Commission will be given effect to in future selections only. In our view, the contention raised by the respondents basing on Rules 10 and 13 of the general rules cannot be accepted since we have already held that the special rules do not indicate that they will have any retrospective operation. Undoubtedly, Rules 10 and 13 will prevail as far as the educational and other qualifications required for a post as specified in the special rules are concerned under normal circumstances. But in a case where the special rules were either newly introduced or amended after the selection process had been set in motion, the scenario will change. The candidates who applied for the post on the basis of the then prevailing rules or regulations, cannot be denied the opportunity to be considered for selection if the subsequent amendment prescribes a different qualification. In any view of the matter, we have no hesitation to hold that Ext.P4 order issued by the Government is binding on the Commission and the clarification mentioned therein regarding qualifications, method of appointment etc. have to be followed scrupulously. Further, a perusal of R.10 will also show that Ext.P4 order issued by the Government in June 1985 cannot be ignored or over looked by the Commission. Rule 10 stipulates that the educational or other qualifications, if any, required for a post shall be as specified in special rules or in any executive order of the Government in cases where special rules had not been issued for the post/service. (emphasis supplied). The admitted position is that no special rules were in vogue in the year 1998 when Ext.P1 notification was issued. Requisite qualification for the post were specified in Ext.P1 notification in terms of the then prevailing rules or norms. Therefore the respondents cannot be heard to say that the rules regarding the qualification which were subsequently introduced in the special rules will prevail.

16. As noticed earlier the respondents have admitted that vacancies were available in various districts when the rank lists were published by the Commission. Only a handful of vacancies were filled up by the Commission since the remaining vacancies had arisen after the introduction of the special rules. Since we have already held that the Commission is bound to advise candidates from the rank lists to all the vacant posts which were available at the time of publication of the notification and the rank lists and thereafter, it necessarily follows that the petitioners are entitled to get appointment as claimed by them, if they had been included in the rank list and if they satisfy other conditions. Needless to mention that advice need be given only in respect of those vacancies which were reported before the expiry of the rank list of the respective districts, notwithstanding the fact that the appellant and petitioners did not possess N.C.P. certificate as prescribed under the special rules.

17. It has been brought to our notice that the Commission has published fresh rank lists after conducting selection in terms of the Special Rules. However, since we have already held that those vacancies which existed during the currency of the rank lists prepared pursuant to Ext.P1 notification are liable to be, filled up for these rank lists and that the appellant and the petitioners in these cases are entitled to be advised if they are otherwise eligible, it necessarily follows that these candidates have to be advised and appointed without disturbing the appointments if any made in terms of the new rank lists. Since the respondents have conceded that the temporary promotions made from the category of Attenders, Dispensers etc. were only provisional and without prejudice to the rights of the appellant and petitioners, we do not find any difficulty in accommodating the appellant and petitioners, if they are entitled to be advised and appointed.

18. In that view of the matter, the judgment of the learned single Judge in Writ Petition No.15076/2005 is set aside. The respondents shall issue appropriate orders for advice and appointment of the appellant and petitioners to the vacant posts which were reported before the expiry of the respective rank lists expeditiously, at any rate within One month from the date of receipt of a copy of this judgment.

The Writ Appeal and the Writ Petitions are allowed in the above terms.