The Kerala High Court dismissed a batch of PILs challenging the constitutional validity of the appointment of personal staff to the office of the Chief Minister, Ministers, Leaders of the opposition, and the Chief Whip by the Special Rules of 1959.

The Bench of Chief Justice S. Manikumar and Justice Shaji P. Chaly observed, "Moreover, the appointment of such personal staff directly recruited is co-terminus with the service of the Ministers and therefore, it is a class of employment made in order to serve the Ministers during their tenure, which cannot be equated with a regular process of recruitment in terms of the General Rules applicable for appointment and conditions of service."

The Court also held, "with the mere employment of the word 'recruitment' in the Rules 1959, it cannot be legally presumed that a selection process is to be carried out by adopting a selection procedure as is done in the case of general recruitment for permanent posts to support the governance and administration generally."

In this case, one of the petitions was filed seeking a direction to the state to make selections and appointments to the category of the personal staff of the Ministers, Leaders of opposition, and Chief Whip based on a fair, independent and transparent recruitment procedure of notification of vacancies and giving full and equal opportunity to all qualified persons for appointment to such posts. Another petition was filed seeking a mandamus commanding the State of Kerala to stop granting huge pensionary benefits to the personal staff of Ministers/Chief Whip and the Leader of opposition; and for a further writ of mandamus commanding the State Government to take appropriate steps to make the minimum period of four years continuous service necessary for the pensionary benefits to the personal staff of Ministers, Chief Whip and the Leader of Opposition.

Senior Advocate M.R. Rajendran Nair appeared on behalf of the petitioners and submitted that when the power to select candidates for appointment is conferred on any individual, it must be presumed that the Rule demands the said power to be exercised in a fair, reasonable and just manner and further that any other interpretation of the Rules would render it void and unconstitutional. That apart, it was also submitted that the selection and appointments without following a proper procedure ought to be treated as null and void as inconsistent with the statutory provisions. It is also pointed out that it is now trite that even temporary or adhoc appointments cannot be made without inviting applications from all eligible candidates and any appointment made without following the said procedure is a nullity in law.

The petitioners further in support of their contentions relied upon the decision of the Supreme Court in the case of State of Orissa v. Mamatha Mohanty [2011) 3 SCC 436] wherein it was held that even the power conferred on the Hon'ble Chief Justice for making an appointment to the staff of the High Court and Subordinate Judiciary was to be exercised in accordance with the requirements of transparency, equality and fairness. That is to say, the selection and appointment made without following transparent and legal procedure, without giving full opportunity to the qualified citizens, and are being made without consultation with the Kerala Public Service Commission based on the Kerala Public Service Commission (Consultation) Regulation, 1957, framed under the proviso to Article 320(3) of the Constitution of India, must be treated as void and violative of Articles 14, 16 and 21 of the Constitution of India. Even the Special Rules conferred unguided power of selection, violating Article 14.

It was also submitted that the pay, pension, gratuity etc. are provided from the public funds and therefore, selection to the said post cannot be left to the personal discretion of anyone and since Rules empowers the Chief Minister, Minister, Leader of Opposition and the Chief Whip to select candidates of their choice, is arbitrary and illegal.

Senior Government Pleader Antony Mukkath appeared on behalf of the State (respondent) and submitted that the personal staff forms a distinct and separate class and therefore, the parameters for public employment are not applicable in the matter of appointment to personal staff and that the appointment of personal staff is in the nature of a service contract and the same is co-terminus with the office of the Minister/Leader of Opposition/Government Chief Whip and therefore, their appointment is covered under Article 310(2).

Advocate General Gopalkrishna Kurup on behalf of the respondent, relied upon the Five Member Constitution Bench decision of Supreme Court in All India Station Masters' & Assistant Station Master's Association [AIR 1960 SC 384] and submitted that Special Rules were made to meet up with the requirements of the Ministers and others to carry on with the administration of the Government by reposing utmost confidence in the personnel staff in the matter of taking various decisions and policy decisions, by maintaining, retaining and sustaining secrecy and confidentiality.

The Court considered all the contentions and noted that the appointment is for the personal staff of the Chief Minister/Ministers, Leaders of opposition and therefore, a process of selection by public advertisement may not be possible, since that would not serve the purpose of conducting a selection of personal staff so as to have the confidence of the Ministers for the maintenance of the confidentiality, trust and faith in the matter of discharging duties and therefore, the Special Rules made by prescribing the method of appointment on the basis of the selection conducted by the Ministers cannot be said to be bad or illegal.

With regard to the pension to personal staff, the Court observed that State Government is providing ex gratia pension to the other Government employees who are having service of fewer than 10 years minimum qualification, even up to the persons having service of three years and below and that "by virtue of G.O.(P) No. 30/2021/FIN dated 12.02.2021, the ex gratia pension and ex gratia family pension are revised with effect from 01.07.2019 and a person having less than 3 years of service is entitled to get the ex gratia pension of Rs.3550/- and the family pension of Rs.1100/-."

The Court further considered the principles of law evolved by the various Constitution Benches of the Supreme Court and observed that "it can be seen that the appointments made to certain categories of posts could be done by a personal selection conducted by the Ministers to serve the purpose of their appointment as personal staff. Merely because such a recruitment is made for the better governance of the State with the aid, support and assistance of such personal staff, that cannot be said to be in violation of Articles 14 and 16 of the Constitution of India."

The Court also observed that the appointment of such personal staff directly recruited is co-terminus with the service of the Ministers and therefore, it is a class of employment made in order to serve the Ministers during their tenure, which cannot be equated with a regular process of recruitment in terms of the General Rules applicable for appointment and conditions of service and said that "the procedure prescribed in the Special Rules, 1959 is necessitated to tackle certain situations due to administrative exigencies, and contingencies; and to achieve the said object and purpose a legislation with a distinct class is inevitable in the larger public interest. Looking from that angle, it cannot be said that the Special Rules, 1959 suffers from any vice of illegality and arbitrariness to interfere with the principles of law adumbrated in Articles 14 and 16 of the Constitution of India."

The Court also expressed that "to attain good governance and good practices in civil, cultural, economic, political, justice, social right, accountability, etc., the Government in power has to modulate its activities and discharge its functions, taking into account its political theories, election manifesto, and perceptions. For that, it must have a good and loyal team to its satisfaction producing results that meet the needs of the community at large, and to provide timely instructions and guidance from the political and social angle."

Therefore, the Court held that special rules made by prescribing the method of appointment on the basis of the selection conducted by the Ministers cannot be said to be bad or illegal.

Accordingly, the writ petitions were dismissed by the High Court.

Cause Title- Anti-Corruption Peoples Movement & Ors. v. State of Kerala & Ors

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Kerala High CourtChief Justice Mr. S. ManikumarJustice Shaji P. Chaly

Sanjoli N Srivastava