Can't Include New Categories In PSC Recruitment Notifications Unless Allowed By Existing Rules: Kerala High Court

The Kerala High Court has held that new categories or posts for appointments cannot be included in State services in the absence of existing enabling recruitment rules prescribing such inclusion.

Justice N. Nagaresh reiterated that the rights and obligations of individuals employed by the Union and the States are derived from the governing rules that regulate their service.

"The law is therefore clear that the rights and obligations of the persons serving the Union and the States are to be sourced from the Rules governing their service. As the petitioners were not eligible for appointment as Assistant Engineers till 30.01.2023, the PSC cannot be directed to consider the candidature of the petitioners in any selection process conducted prior to 30.01.2023."

The petition was filed by some operators in the Kerala Water Authority requesting the State to finalise the Draft Technical Service Rules for the Kerala Water Authority (KWA) and include Operators as a category in the Public Service Commission (PSC) notifications for recruitment to Assistant Engineer posts.

The petitioners pointed out that they were not included in the 2012 notification for recruitment to the post of Assistant Engineer in the KWA. They argued that this was a violation of Article 14 of the Constitution since they have the same qualifications and are in the same pay scale as the included categories. 

It was submitted that they had repeatedly sought the inclusion of Operators with six years of experience and the prescribed qualifications in the selection process in the in-service quota. They added that the non-implementation of the Draft Technical Service Rules hindered their ability to apply for the position.

The petitioners further argued that considering the limited promotional opportunities, the State should implement the said Rules and consider Operators with the necessary qualifications to be appointed as Assistant Engineers. 

Citing several precedents where the Court had directed the State to finalise the Rules, the petitioners contended that the respondents had disregarded the Court's judgments. 

On the other hand, PSC submitted that recruitment notification was published based on Special Rules of the Public Health Engineering Subordinate Service since Special Rules for KWA's Technical Staff were not yet framed. It was also pointed out that the framing of recruitment rules and the decision on which categories should be included as feeder categories for appointment to a post are primarily determined by the employer in consultation with PSC. 

The Commission informed the Court that it had received the Draft Rules in 2010 and provided advice on it in 2011. However, the State did not finalise them. Hence, PSC was currently examining modified Draft Rules and promised to provide its advice soon.

In the counter affidavit filed by the KWA, it was stated that it was currently operating under the Kerala Water Authority Engineering Service Rules, 2021, which do not include provisions for the appointment of Operators as Assistant Engineer. 

The Court initially went through the relevant PHED rule and found that only Draftsman Grade-I and II, Water Works Inspectors, Drainage Inspectors, Overseers Grade-I, II and III, Works Superintendents Grade-I and II and Clerks having certain minimum periods of service were made eligible for direct recruitment as Assistant Engineers against the 10% in-service quota. However, Operators with B. Tech qualifications were not included in the feeder categories.

The Court found that as per the Kerala Water Authority Technical Service Rules, Operators seeking direct recruitment to the in-service quota vacancies can apply till they attain the age of 50 years. Thus, one of the petitioners' concerns was addressed. 

Regarding the prayer for including qualified Operators in the PSC notifications, Justice Nagaresh observed that the PSC notification for in-service quota recruitment was issued before the promulgation of the Kerala Water Authority Technical Service Rules. Thus, the petitioners could not legally seek inclusion in the notification without amending the recruitment rules.

The Single Judge also recalled the law laid down in State of Himachal Pradesh v. Raj Kumar and Mehaboob P.M. v. State of Kerala that employees have no right outside the governing service rules. Since the petitioners were not eligible for appointment as Assistant Engineers before 30.01.2023, the PSC could not consider their candidature in previous selection processes.

For these reasons, it was decided that neither KWA nor PSC could be directed to consider petitioners for the appointment to the in-service quota vacancies of Assistant Engineers against the vacancies notified by the PSC prior to the promulgation of the Kerala Water Authority Technical Service Rules. 

As such, the petitions were dismissed as infructuous. 

Government Pleader Anima M, Standing Counsel for Kerala Water Authority Advocate P Benjamin Paul and Standing Counsel for Kerala Public Service Commission Advocate PC Sasidharan appeared in the matter. 

Case Title: Varghese Vijesh v. State of Kerala & connected matters

Citation: 2022 LiveLaw (Ker) 327

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