'Cannot Be Equated With Regular Recruitment Process': Kerala HC Dismisses PILs Challenging Special Rules For Appointment Of Ministers' Personal Staff

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

Division Bench consisting of Chief Justice S. Manikumar and Justice Shaji P. Chaly observed: 

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... In that view of the matter, we are of the undoubted and considered opinion that the petitioners have not made out a case of arbitrariness or unfairness, so as to secure the reliefs as are sought in the writ petitions.

One of the petitions was filed seeking a direction to the State to make selection and appointment to the category of personal staff of Ministers, Leader of Opposition, Government Chief Whip based on a fair, independent and transparent recruitment procedure giving full and equal opportunity to all qualified persons for appointment to such posts. Another petition was filed seeking direction to the State to stop granting huge pensionary benefits to the personal staff of Ministers/Chief Whip and the Leader of the 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.

The Petitioners raised the contention 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 contended that the selection and appointments without following a proper procedure ought to be treated as null and void as inconsistent with the statutory provisions. To substantiate their contention reliance was placed on the Apex Court decision in State of Orissa v. Mamatha Mohanty in which it was held that even the power conferred on the Chief Justice for making appointments to the staff of the High Court and Subordinate Judiciary is to be exercised in accordance with the requirements of transparency, equality and fairness. 

The sum and substance of the contentions raised by the petitioners were that the selection and appointment made without following transparent and legal procedure, and without giving full opportunity to the qualified citizens must be treated as void and violative of Articles 14, 16 and 21 of the Constitution of India. It was also contended that the Special Rules confers unguided power of selection, and therefore, it is violative of Article 14 of the Constitution of India and also that the appointment to the personal staff of the Ministers, Leader of the Opposition and Chief Whip 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.

Further, the petitioners 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.

The Court after considering the rival contentions observed that appointment of personal staff may not be possible through a process of selection by public advertisements 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. 

In that view of the matter, 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, the Court added. 

Regarding the pension and family pension to the personal staff directly recruited, the Court observed that it is clear 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 the service of three years and below. However, the Court also noted that by virtue of a Government order dated 12.02. 2021 with which the ex gratia pension and ex gratia family pension are revised 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 after taking into consideration the principles of law evolved by the various Constitutional Benches of the Apex Court, observed 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 and merely because such 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.

Furthermore, the Court 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.

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 added. 

The Court added that 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.

Therefore the Court came to the conclusion that the petitioners have not made out a case of arbitrariness or unfairness, so as to secure the reliefs as are sought in the writ petitions.

Thereby, it dismissed the Writ Petitions. 

Case Title: Anti-Corruption Peoples Movement and Ors. v. State of Kerala and Ors and Connected Cases 

Citation: 2022 LiveLaw (Ker) 628

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