K.Lakshmi vs State Of Kerala & Ors

Smt. K. Lakshmi ...Appellant

Versus

State of Kerala & Ors. ...Respondents

J U D G M E N T

T.S. THAKUR, J.

1. Leave granted.

2. Recruitment 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

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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.

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3. Looking 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.

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4. Interviews 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.

5. The Recruitment Committee considered the revised

merit list and found that two open category candidates and

one reserved category candidate who stood appointed shall

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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

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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 observed:

"....................................................................................................

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 ineligible."

6. The 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

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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."

7. In 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.

8. It 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

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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."

9. Aggrieved 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 before us.

10. Appearing for the appellant Mr. P.U. Dinesh, learned

counsel strenuously argued that the High Court had failed

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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:

"However, in view of the subsequent decision of the 1st

respondent to fill up 10 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 above."

11. In 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

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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.

12. Mr. 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

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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

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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.

13. The 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

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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

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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 subsequent development.

14. There 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:

"Notwithstanding 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

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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 from 17.12.1958."

15. The 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."

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16. In 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."

17. In 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

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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.

18. In 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 Court.

19. 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

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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.

20. In 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.

21. That 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

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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.

............................................J.

(T.S. THAKUR)

.............................................J.

(GYAN SUDHA MISRA)

New Delhi,

February 27, 2012

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