Smt. K. Lakshmi Vs. State
of Kerala & Ors.
Civil Appeal No. 2511
of 2012 arising out of SLP (C) No. 16289 of 2011)
J U D G M E N T
T.S. THAKUR, J.
to public services often gets embroiled in legal complications and resultant litigation
consequently delaying the process of filling up of the vacancies, a feature hardly
conducive to public interest. What is disturbing is that recruitment process for
appointment to the District Judiciary in the States is also not immune to this phenomenon
no matter recruitments are made in consultation with the High Court on the
administrative side and at times monitored by them. The present appeal that arises
out of an order passed by the High Court of Kerala is one such case where the
recruitment process for the post of District and Sessions Judges in the Kerala
State Higher Judicial Service was the subject-matter of multiple rounds of litigation.
The genesis of the present
lis lies in a notification issued by the High Court of Kerala for appointment to
the six vacancies in the cadre of District and Sessions Judges by direct recruitment
from the Bar. Notification dated 16th April, 2007 inviting applications against
those vacancies was followed by a written examination conducted in October 2007
in which as against 960 candidates who applied, only 443 candidates actually took
the written examination conducted between 27th to 29th October, 2007. Surprisingly
enough only seven candidates qualified in the written examination by securing the
minimum qualifying marks specified in paragraph 4 of the recruitment Notification.
Out of the seven, one belonged to Scheduled Castes category, three to OBCs and the
remaining candidates were from the open merit category.
to the number of candidates who had qualified for interview, the Recruitment Committee
comprising five senior-most Judges of the High Court was of the view that sufficient
number of candidates may not be available to fill up the notified vacancies. The
Committee, therefore, resolved to award 20 marks by way of moderation in all
the three papers of the written examination to all the candidates who appeared for
the examination so that a larger number of candidates qualified in the written examination
and became eligible for consideration. Merit list after giving such benefit was
prepared and approved by the Recruitment Committee.
The result was that
against the seven candidates who had previously qualified, 45 candidates became
eligible for the viva-voce examination. Two of these candidates namely,
Muhammed Raees M and Minu Mathews were, however, excluded from the selection process
on the ground that they had secured employment during the interregnum. The exclusion
was successfully challenged by the said candidates who were then permitted to
participate in the viva-voce examination as well.
for the eligible candidates were held in December 2008 and based on the merit
so determined, the High Court published a final selection list containing the names
of 29 candidates. The select list was prepared by excluding candidates who were
less than 35 years of age or more than 45 years as on 1st January, 2007. The
age bar, it is noteworthy, was introduced by the amending Kerala Sate Higher Judicial
Services Rules which amendment came in June 2008 i.e. after the selection
process has commenced.
Those who were
excluded from consideration on the basis of the amended rules challenged their exclusion
in Writ Petition(C) No.2021 of 2009 and connected petitions which were allowed by
a Division Bench of the High Court of Kerala with a direction that the selection
process be conducted in accordance with the rules as the same were on the date of
the issue of the notification inviting applications from the eligible candidates.
A revised merit list was accordingly issued comprising 45 names.
Recruitment Committee considered the revised merit list and found that two open
category candidates and one reserved category candidate who stood appointed
shall have to be elbowed out of service in view of the revised select list. The
Committee appears to have suggested a solution that would avoid such a
situation. The High Court on the basis of the recommendations made by the Committee
recommended to the Government to invoke its power under Rule 39 of the K.S. &
S.S.R. to protect the said three candidates whose services were otherwise very satisfactory.
The recommendation suggested
utilisation of four vacancies that had occurred subsequent to the issue of the recruitment
Notification in addition to the six already notified. The recommendation sent to
the State Government accordingly contained names of nine candidates while one was
kept unfilled in view of the pendency of Special Leave Petition (C) No.4203 of 2009.
With the dismissal of the Special Leave Petition, the said slot was recommended
to be filled up by appointing Muhammed Raees M. against 10th vacancy.
Writ Petition (C)
Nos.16206 of 2010 and 16207 of 2010 were then filed by C. Jayachandran and Minu
Mathews whereby the award of grace marks by way of moderation to other three candidates
included in the said list was challenged. The said petitions were finally allowed
by the High Court of Kerala by its order dated 13th September, 2010 holding
that the award of grace marks by way of moderation was not legally permissible
and was contrary to the decision of this Court in Umesh Chandra Shukla v. Union
of India and Ors. (1985) 3 SCC 721.
The High Court
The present two writ petitioners were among the seven successful candidates in the
written examination who secured the cut off marks in each of the papers as stipulated
by the notification. In view of the decision of the selection committee to award
moderation though the writ petitioners still continued to be the successful candidates
in the written examination, many more candidates artificially became eligible for
being called for the viva-voce resulting in a heavier competition for the
petitioners at the second stage of selection process, i.e. viva-voce.
In the above
extracted passage of the judgment (1985) 3 SCC 721, the Supreme Court held that
the candidates who secured the minimum qualifying marks in the written
examination acquire the right to be included in the list of the candidates to
be called for viva-voce examination and such a right cannot be defeated by
enlarging the said list including certain other candidates who are otherwise
High Court accordingly declared the grant of moderation marks and all steps
taken pursuant to the said decision bad in law. The High Court observed: "In
the result, we are of the opinion that the decision of the Selection Committee to
grant moderation is unsustainable in law. Therefore, all further steps pursuant
to the said decision would be unsustainable. The resultant situation is that only
the seven candidates who were initially found eligible on the basis of their having
secured the cut off marks in the examination should have been subjected to the viva-
voce examination and an appropriate decision regarding their suitability to fill
up the originally advertised 6 posts should have been taken by the 1st respondent
in accordance with law."
compliance with the above direction, the merit list was revised again and the
appellant placed at serial no.6 in the open merit category. Since there were only
three vacancies in the said category which had been allotted to three
candidates with higher merit than the appellant, the appellant could not be appointed.
Out of three vacancies meant for reserved category candidates one was filled up
while the remaining two vacancies meant for OBC candidates remained unfilled
for want of candidates in the said category.
was in the above backdrop that Writ Petition No. 20683 of 2009 filed by the appellant
to challenge the selection process came up for hearing before a Single Bench of
the High Court of Kerala and was dismissed by a short order stating that since
the appellant was not one of the candidates who figured in the list of seven successful
candidates qualified for consideration there was no question of issuing any
direction for appointment. The learned Single Judge observed: "................The
selection now stands narrowed down to only seven persons. The petitioners in these
writ petitions are not among them. That being so, there is no point in considering
these writ petitions on merits. Accordingly, they are closed leaving open the other
contentions in these writ petitions, which have not been considered by the Division
Bench in Jayachandran's case (supra) to be raised and agitated appropriately,
if occasion arises in future."
by the above order the appellant filed a writ appeal before the Division Bench of
the High Court which too failed and was dismissed by the High Court. The High Court
was of the view that the contention urged in support of the challenge to the
selection process did not have any foundation in the pleadings of the parties and
even assuming that the challenge on the grounds urged before it was maintainable
the fact that the writ petition had itself been filed nearly two years from the
date of the issue of the notification was sufficient for the High Court to decline
interference. The present appeal questions the correctness of the above order
for the appellant Mr. P.U. Dinesh, learned counsel strenuously argued that the High
Court had failed to consider the effect of the order passed by it in Writ Petition
No.16206 of 2010 in Jayachandran's case. It was contended that the High Court had
by the said decision clearly directed that ten vacancies had to be filled up
from out of seven candidates found eligible in terms of the select list. Heavy reliance
was, in support of that contention, placed by the learned counsel upon the following
passage appearing in the said judgment:
view of the subsequent decision of the 1st respondent to fill up posts, the 1st
respondent may now proceed with the selection from out of the 7 abovementioned
candidates in accordance with law by recasting the select list. In view of the
fact that some of the 10 posts sought to be filled up are required to be filled
up by candidates belonging to reserved categories, if on such an exercise any
of the vacancies of the abovementioned 10 posts sought to be filled up cannot
be filled up for lack of a suitable candidate, the respondents should now resort
to the procedure contemplated under Rule 15(a) of the K.S. & S.S.R. It goes
without saying that it should be open to the respondents to prescribe such cut off
marks as the minimum qualifying marks in such limited recruitment as they deem
fit and proper in the circumstances. Both the writ petitions are allowed as
as much as the High Court had remained oblivious of the above direction it had according
to the learned counsel fallen in a palpable error that deserved to be corrected.
Alternatively, it was contended that even if the number of vacancies to be
filled up were restricted to only six the appellant was entitled to an appointment
against one out of the two unfilled vacancies meant for the reserved category candidates
having regard to the provisions of the Rules which according to the learned counsel
entitled him to such an appointment by diversion of the unfilled vacancies to
the open merit category.
P.P. Rao, learned counsel for the respondents, on the other hand, argued that the
High Court was perfectly justified in dismissing the writ petition filed by the
appellant as none of the grounds which were set out in the writ petition were found
to have any merit. He drew our attention to the writ petition filed by the
appellant and the grounds on which the selection process was challenged to contend
that the challenge urged in support of the present appeal was never pressed
into service or urged before the High Court.
It was not,
therefore, argued Mr. Rao, open to the appellant to make out a new case in his
favour before this Court on which the High Court had no occasion to express any
opinion. It was further contended that reliance upon the order passed by the
High Court in Jayachandran's case was misplaced for the direction issued by the
High Court was limited to filling up of the vacancies "in accordance with law".
This implied that no appointment against the available vacancies could be made
if the same were not legally permissible.
It was argued that
subsequent to the judgment of the High Court in Jayachandran's case, the High
Court had passed a Full Court resolution by which the recommendations made
earlier to the Government for filling up of the four vacancies that had
occurred after issue of the recruitment notification by resort to Rule 39 of the
K.S. & S.S.R. Rules was withdrawn.
Copy of the said resolution
in the consequent letter issued by the High Court was also placed on record by the
learned counsel, in support of the submission that after the quashing of the moderation
in Jayachandran's case there was no room left for filling up of the four additional
vacancies by taking resort to Rule 39 of the Rules mentioned above. That was so,
for the obvious reason, that the candidates for whose benefit the said
recommendation had been made had gone out of service as a consequence of the judgment
of the High Court in Jayachandran's case.
There was, therefore,
neither any need nor any occasion for the Government to 11 invoke this power under
Rule 39 of the Rules as recommended by the High Court. The net result then was that
the number of vacancies required to be filled up continued to be only six,
three out of which were to go to open merit candidates while the remaining
would go to the candidates in the reserved category.
short question that falls for determination in the above backdrop is whether
the number of vacancies to be filled up was six as claimed by the High Court or
ten as claimed by the appellant. While it is not disputed that the initial
notification confined itself to filling up of six vacancies only, confusion relating
to the said number arose on account of the High Court recommending invocation
of Rule 39 by the Government to avoid a situation where the candidates who had
already been appointed pursuant to the selection process had to go out of
service on account of the Court directing preparation of a revised merit list on
the basis of the unamended Rules.
It is common ground
that the vacancies that had arisen after the issue of the Notification were sought
to be filled up only with the solitary purpose of somehow saving the three candidates
from ouster who were bound to lose their jobs on account of the re-casting of
the merit list. All that the High Court intended to recommend to the Government
was that four vacancies that were available in the cadre, though the same had arisen
after the issue of the Recruitment Notification, could be utilised by the Government
if it invoked its power under Rule 39. The candidates facing ouster could then be
continued as an exception to the general rule.
It is also beyond dispute
that the said recommendations could not have been accepted once the award of
additional marks by way of moderation was struck down by the High Court in Jayachandran's
case. The inevitable consequence flowing from that judgment was that anyone who
had found place in the merit list only because of the benefit of moderation would
have to lose that place and go out of the list. Once that happened the question
of retaining the services of the three candidates by invocation of powers
vested in the Government under Rule 39 did not arise.
The High Court was in
the light of the subsequent development justified in recalling the recommendations
made by it which in turn had the effect of limiting the number of vacancies to
those originally notified. Mr. Rao was, therefore, right in contending that the
proposed utilisation of four vacancies did not ipso facto add to the number of already
notified. The addition was contingent upon the Government agreeing to exercise its
power under Rules 39.
Since the Government did
not and could not possibly exercise the said power as a result of the quashing
of the marks awarded by way of moderation the proposed addition of the vacancies
to the number already notified became clearly infructuous. The High Court could
and had rightly recalled the recommendations in the light of the said
is another aspect to which we may advert at this stage and that relates to the question
whether the Government could at all exercise the powers vested in it under Rule
39 in a manner that would have had the effect of depriving candidates otherwise
eligible for appointment against the said vacancies from competing for the same.
Rule 39 reads as under:
anything contained in these rules or in the Special Rules or in any other Rules
or Government Orders the Government shall have power to deal with the case of
any person or persons serving in a civil capacity under the Government of Kerala
or any candidate for appointment to a service in such manner a may appear to the
Government to be just and equitable: Provided that where such rules or orders are
applicable to the case of any person or persons, the case shall not be dealt with
in any manner less favourable to him or them than that provided by those rules
or orders. This amendment shall be deemed to have come into force with effect
legal position regarding the power of the Government to fill up vacancies that are
not notified is settled by several decisions of this Court. Mr. Rao relied upon
some of those decisions to which we shall briefly refer. In Rakhi Ray v. High Court
of Delhi (2010) 2 SCC 637, this Court declared that the vacancies could not be filled
up over and above the number of vacancies advertised as recruitment of the
candidates in excess of the notified vacancies would amount to denial of equal opportunity
to eligible candidates violative of Article 14 and 16(1) of the Constitution of
India. This Court observed: "It is settled law that vacancies cannot be
filled up over and above the number of vacancies advertised as recruitment of
the candidates in excess of the notified vacancies is a denial being violative
of Articles 14 and 16(1) of the Constitution of India."
Hoshiar Singh v. State of Haryana 1993 Supp 4) SCC 377, also this Court held that
appointment to an additional post would deprive candidates who were not eligible
for appointment to the post on the last date of submission of the applications mentioned
in the advertisement and who became eligible for appointment thereafter or the opportunity
of being considered for such appointment. This Court observed: "The
appointment on the additional posts on the basis of such selection and recommendation
would deprive candidates who were not eligible for appointment to the posts on the
last date for submission of applications mentioned in the advertisement and who
became eligible for appointment thereafter, of the opportunity of being considered
for appointment on the additional posts."
State of Haryana v. Subhash Chander Marwaha (1974) 3 SCC 220, this Court held that
the Government had no constraint to make appointments either because there are
vacancies or because a list of candidates has been prepared and is in
existence. So, also this Court in Shankarsan Dash v. Union of India (1991) 3 SCC
47, UPSC v. Gaurav Dwivedi (1999) 5 SCC 180, All India SC & ST Employees' Association
v. A. Arthur Jeen (2001) 6 SCC 380 and Food Corporation of India v. Bhanu Lodh (2005)
3 SCC 618, held that mere inclusion of a name in the select list for
appointment does not create a right to appointment even against existing vacancies
and the State has no legal duty to fill up all or any of the vacancies.
the light of the above pronouncements the power vested in the Government under
Rule 39 (supra) could not have been invoked for filling up the vacancies which had
not been advertised and which had occurred after the issue of the initial advertisement
much less could that be done for purposes of protecting the service of someone
who had found a place in the merit list on account of additional marks given to
him and who was bound to lose that place by reasons of the judgment of the
upshot of the above discussion is that the number of vacancies notified for
recruitment remained limited to six and did not get increased to ten as the
condition precedent for such increase had failed not only because no decision was
taken by the Government to invoke its power under Rule 39 but also because even
if a decision had been taken the same would have had no effect in the face of the
judgement in Jayachandran's case. Besides the power vested in the Government was
not exercisable so as to utilise subsequent vacancies for the purpose of saving
someone who had no legitimate right to continue even after being removed from
the merit list.
the light of the above discussion paragraph 33 of the judgment in
Jayachandran's case does not come to the rescue of the appellant's to support his
claim for appointment. We fail to see any legal or equitable right in favour of
the appellant to claim one of the four vacancies that were proposed to be added
in terms of the recommendation made by the High Court, even assuming that the appellant
could urge before us a point which had never been urged before the High Court.
brings us to the second limb of the submission of Mr. Dinesh that even if the
number of vacancies is taken to be limited to six, he was entitled to be appointed
against one of the unfilled vacancies meant for reserved category candidates. That
submission, in our opinion, needs notice only to be rejected. Firstly, because
there is no foundation laid in the writ petition filed by the appellant nor was
any such point ever raised before the High Court. The result is that the unfilled
vacancies meant for reserved category candidates and those that have become available
in the merit category after the issue of the initial recruitment notification
have already been notified.
The appellant, it is not
in dispute, has participated in the fresh selection process initiated by the High
Court like many others who were eligible to apply against the vacancies in the open
merit and the reserved category. It is, therefore, neither proper nor feasible
at this stage for this Court to interfere with the ongoing selection process. The
appellant it goes without saying would get a fair chance like every other eligible
candidate to compete for an appointment. In the result this appeal fails and is
hereby dismissed but in the circumstances without any orders as to costs.
(GYAN SUDHA MISRA)