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Candidates who ranked lower in 2019 selection cannot appropriate subsequent year vacancies to them

Candidates who have ranked lower in the 2019 selection and were unable to obtain appointments cannot appropriate the vacancies of a subsequent year to themselves (Para 58)

High Court of Kerala vs. Reshma A. & Others

Civil Appeal No. 14665 of 2005

Decided on 11th January, 2021

Counsel for Appellant: Mr. V Giri

Counsel for Respondents: Mr P S Patwalia, Mr V Chitambaresh, and Ms Bina Madhavan

A two judge bench comprising of Justice Dr Dhananjaya Y Chandrachud and Justice Indira Banerjee decided the case. The bench set aside the judgement and order given by High Court of Kerala regarding recruitment of munsiff-magistrate.

A judgment of a Division Bench of the High Court of Kerala dated 26 August 20201 forms the subject of the appeal. The High Court has affirmed a judgment of its Single Judge2 by holding that appointments to the post of Munsiff-Magistrate in the judicial service of the state can be beyond the number of probable number of vacancies advertised in the notification inviting applications. The High Court held, on a literal reading of Rule 7(2) of the Kerala Judicial Service Rules, 19913 (as amended in 2019), that vacancies which arise within a year of the approval of the select list by the Governor should be filled up from amongst candidates on the list even though this exceeds the number of probable vacancies which were notified, unless a fresh list is notified within a year. The consequence of the decision is that vacancies attributable to the next selection year – 2020 – have to be filled up from the select list drawn for the previous selection year, 2019.

Two main issues were formed in the given case:

1. Whether Rule 7 of the Kerala Rules, 1991 is contrary to the directions of this Court in Malik Mazhar Sultan case

2. Whether the respondents and similarly placed candidates who find place in the merit list approved by the Governor can be appointed to vacancies arising within one year from the date of approval of the merit list, in excess of those specified in the notification.

The counsel on the behalf of appellant contended that Rule 7(2) of Kerela Rules, 1991 were inconsistent with the direction given in the case of Malik Mazhar Sultan case as a literal interpretation of Rule 7(2) would lead to a violation of Articles 14 and 16 as appointments would be made in excess of the vacancies notified. The same has been held in other cases such as Rakhi Ray v. High Court of Delhi [(2010) 2 SCC 637]; Prem Singh & Ors v. Haryana State Electricity Board & Ors [(1996) 4 SCC 319]; and Bedanga Talukdar v. Saifudaullah Khan & Ors [(2011) 12 SCC 85. The counsel also contended that if Kerala Rules, 1991 along with the directions of this Court in Malik Mazhar Sultan is harmoniously interpreted, then it would imply that vacancies arising in a recruitment year should be filled up by the merit list in that year only and yearly selection must be conducted.

The counsels on the behalf of respondents contended that selection and appointment to judicial posts has to be conducted strictly in adherence to existing judicial service rules as held in Malik Mazhar Sultan; Rakhi Ray; and in Hirandra Kumar v. High Court of Judicature at Allahabad. They also contended that rule 7(2) of Kerala Rules, 1991 has been amended by keeping the case of Malik Muzahar Sultan in mind and the case mandates that the merit list approved by the Governor is to remain in force for a period of one year during which all vacancies which arise are to be filled up from the merit list, or until a new list comes into force, whichever is earlier.

The Judge bench, after carefully examining the Rules 7 of Kerala Rules, before and after amendment, the court stated that,

As a result of the amendment which came into effect in 2019, it has been stipulated that the list approved by the Governor shall be valid till the notified vacancies and the vacancies that may arise within one year from the date of the approval of the list are filled up or a fresh list comes into force, whichever is earlier. (Para 17)

The court also examined the case of Malik Mazhar Sultan v. Uttar Pradesh Public Service Commission and came to a conclusion about the computing the vacancies that are to be notified annually by the High Court that three factors should be kept in mind,

(i) the existing number of vacancies;

(ii) the anticipated vacancies for the next year; and

(iii) some candidates to be included in the wait-list. (Para 28)

The Hon’ble Supreme Court then considered two landmark cases to subscribe to the wider submission of the appellant that the directions in Malik Mazhar Sultan will prevail over the provisions contained in Rule 7(2). The court came to a conclusion that they were unable to advocate/endorse the same. The court stated that,

In Rakhi Ray, the submission which did not find acceptance was that anticipated vacancies should be considered over and above the vacancies which were notified in the advertisement for making appointments. In Hirandra Kumar candidates who sought an age relaxation on the ground that they had crossed the age limit after the last recruitment met with a similar fate, with this Court holding that compliance with the age limit prescribed in the Judicial Services Rules cannot be obviated. (Para 38)

The court, in consideration with few landmark judgments (Prem Singh v. Haryana State Electricity Board [(1996) 4 SCC 319], Rakhi Ray v. High Court of Delhi [(2010) 2 SCC 637], Bedanga Talukdar v. Saifudaullah Khan [9 (2011) 12 SCC 85], Anurag Kumar Singh v. State of Uttarakhand [(2016) 9 SCC 426], Rahul Dutta v. State of Bihar[1 (2019) 5 SCC 158]), concluded that all of the cases involve factual situations which may not be identical with the facts of the present case. Precedent does not always rest on all fours. The court marked the Constitutional Principle stating that,

The constitutional principle which finds recognition in the precedents of this Court is that the process of selection in making appointments to public posts is subject to the guarantees of equality under Article 14 and of equality in matters of public employment under Article 16. (Para 47)

Concluding, the court set aside the judgment of the Hon'ble High Court and observed the following:

Having come to the conclusion that the judgment of the High Court is erroneous, we are of the view that it would be impermissible to grant relief to the respondents purely on this basis. The respondents have no vested right to appointment for the 2019 selections. They cannot claim any right, or even equity, on the ground that the selection for the subsequent year may be delayed. Vacancies for 2020 must be allocated to candidates who are duly selected in pursuance of the recruitment process for 2020. Candidates who have ranked lower in the 2019 selection and were unable to obtain appointments cannot appropriate the vacancies of a subsequent year to themselves. To allow such a claim would be an egregious legal and constitutional error. (Para 58)

The appeal was allowed.

Nishant Aryaman



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